‘Last Seen’ Evidence Sufficient for Conviction Despite Flawed DNA Investigation; Death Sentence Commuted: Allahabad High Court Rules in POCSO Case - 2025-08-12

Allahabad High Court Upholds Conviction in Rape-Murder of Minor, Commutes Death Sentence to Life Imprisonment

Allahabad, India – The Allahabad High Court has upheld the conviction of Bantu @ Shiv Shankar for the rape and murder of his eight-year-old cousin, but commuted his death sentence to life imprisonment without remission for 25 years. The division bench, comprising Hon'ble Mr. Justice Rajiv Gupta and Hon'ble Mr. Justice Ram Manohar Narayan Mishra , ruled that despite "glaring defects" in the investigation, including the failure to conduct a DNA test, the "last seen together" evidence provided by multiple witnesses was sufficient to prove the appellant's guilt beyond a reasonable doubt.

Case Background

The case stems from a horrifying incident in March 2019 in Firozabad district. The victim, an eight-year-old girl, went missing from a village ceremony. Her body was discovered the next morning in a wheat field, with evidence suggesting she had been sexually assaulted and smothered to death. The trial court in Firozabad convicted the appellant, Bantu, under Sections 302 (Murder) and 376AB (Rape of a girl under 12 years) of the Indian Penal Code (IPC) and sentenced him to death. The case was before the High Court for confirmation of the death sentence and as an appeal filed by the convict.

Key Arguments

Counsel for the Appellant mounted a strong challenge against the conviction, arguing that: - The case was built entirely on weak circumstantial evidence, primarily the "last seen together" theory. - The investigation was "flawed and shoddy," highlighted by the investigating officer's failure to send samples for DNA analysis, which could have conclusively proved or disproved the appellant's involvement. - Evidence regarding an underwear found near the scene was dubious and appeared planted. - The absence of physical injuries on the victim's private parts, as noted in the post-mortem report, cast doubt on the rape charge.

The State (Respondent) countered that: - Four credible witnesses had consistently testified to seeing the appellant leading the victim away on the night of the incident. - The time gap between when the victim was last seen with the appellant and the discovery of her body was minimal, placing the burden of explanation on the appellant under Section 106 of the Evidence Act . - The bleeding from the victim's private parts, though without external injuries, was indicative of sexual assault. - Investigative lapses alone should not nullify a case supported by strong oral testimony.

Court's Reasoning: Separating Grain from Chaff

The High Court meticulously reappraised the evidence, acknowledging the serious investigative failures. However, it emphasized the legal principle that a faulty investigation does not automatically benefit the accused if other evidence is cogent and reliable.

The judgment noted, "Had the investigating officer taken the DNA sample from person of the accused... an irrefutable evidence with regard to commission of rape would have been available." Despite this lapse, the Court found the testimony of the four "last seen" witnesses to be natural and trustworthy, as their names were mentioned in the promptly filed FIR and they were relatives with no apparent motive to lie.

Citing the Supreme Court's decision in Veerendra Vs. State of Madhya Pradesh , the bench held:

"...the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder... the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution."

The Court concluded that the chain of circumstances—the victim being last seen with the appellant, his evasive answers to her mother, the discovery of the body, and the homicidal nature of death—unerringly pointed to the appellant's guilt.

On Sentencing: Commutation of Death Penalty

While affirming the conviction, the High Court significantly modified the sentence. It applied the "rarest of rare" doctrine established in Bachan Singh v. State of Punjab , balancing aggravating and mitigating factors.

Aggravating factors included the victim's tender age, the breach of trust, and the heinous nature of the crime. Mitigating factors considered were the appellant's young age (30) at the time of the offense, his lack of prior criminal antecedents, and the fact that the conviction was based on circumstantial evidence.

The Court observed:

"It cannot be said that appellant is incorrigible or he is a menace to society and he cannot be reformed or rehabiliated. In modern days, much emphasis laid down on reformatory theory of punishment, rather than retributory or deterrent."

Final Verdict

The High Court dismissed the reference for confirmation of the death sentence. It modified the sentences as follows: - For Murder (Sec 302 IPC): The death sentence was commuted to life imprisonment, with a stipulation that the appellant must serve a minimum of 25 years without remission. - For Aggravated Rape (Sec 376AB IPC): The death sentence was commuted to 20 years of rigorous imprisonment .

Both sentences are to run concurrently. The Court also imposed a total fine of Rs. 20,000, to be paid to the victim's mother as compensation.