Dashwanth vs State of Tamil Nadu

Penal Code, 1860 – ss.302, 201, 363, 366 and 354-B of the IPC – Protection of Children from Sexual Offences Act, 2012 – s.8 r/w. s.7 and s.6 r/w. s.5(m) – Appellant was found guilty for the charges framed u/ss.302, 201, 363, 366 and 354-B of the IPC and s.8 r/w. s.7 and s.6 r/w. s.5(m) of the POCSO Act by the Courts below – Whether the prosecution has proved the vital circumstance, viz., last seen together theory: Held: The first and most critical circumstance on which the prosecution placed reliance was that of last seen together – The witness who gave evidence in support of this circumstance was PW-3, who claimed that on the fateful day, he saw the appellant and the victim playing on the second floor of the building, on the first floor whereof, the complainant (PW-1) being the father of the victim resided with his family – When the frantic process for searching the victim started, PW-3 claims to have informed the complainant (PW-1) that his daughter was not in the house and might be playing upstairs and advised him to go and look for her on the upper floor of the building – Had there been an iota of truth in the version of PW-3, he would definitely have told the complainant (PW-1) that he had seen the victim in the company of the appellant between 6:00 p.m. to 6:15 p.m. on the second floor of the building – The glaring omission on the part of PW-3 in failing to share this vital information is also manifest from the complaint filed by the complainant (PW-1) – The theory put forth in the evidence of (PW-3) that he had seen the victim in the company of the appellant on 05.02.2017 i.e., the date of the incident, is nothing but a sheer concoction, bereft of credibility – The statement of PW-3 that the said witness, for the first time, divulged the information comprising the circumstance of last seen together to the 2nd Investigating Officer (PW-30) only on 24.04.2017, i.e., more than two months and 20 days after the incident – Therefore, the circumstance of last seen together was created by the Investigating Officer (PW-30) through the witness (PW-3) in order to lend credence to the otherwise weak case of the prosecution. [Paras 44-46]

Penal Code, 1860 – ss.302, 201, 363, 366 and 354-B of the IPC – Protection of Children from Sexual Offences Act, 2012 – s.8 r/w. s.7 and s.6 r/w. s.5(m) – Appellant was found appellant guilty for the charges framed u/ss.302, 201, 363, 366 and 354-B of the IPC and s.8 r/w. s.7 and s.6 r/w. s.5(m) of the POCSO Act by the Courts below – Whether the prosecution has proved the vital circumstance of the video footage of the CCTV camera: Held: The next piece of circumstantial evidence on relied upon was in the form of the video footage of the CCTV camera, the primary evidence of the so-called CCTV footage is not available on record – The oral evidence regarding the CCTV footage was given by PW-6 being the In-charge of the nearby temple – In the absence of the CCTV footage being collected and exhibited as per law, no credence can be given to the evidence of PW-6, more so, when there is grave discrepancy between his version and the version of the complainant (PW-1). [Paras 47, 49, 51] Penal Code, 1860 – ss.302, 201, 363, 366 and 354-B of the IPC – Protection of Children from Sexual Offences Act, 2012 – s.8 r/w. s.7 and s.6 r/w. s.5(m) – Appellant was found guilty for the charges framed u/ss.302, 201, 363, 366 and 354-B of the IPC and s.8 r/w. s.7 and s.6 r/w. s.5(m) of the POCSO Act by the Courts below – Whether the prosecution has proved the vital circumstance of the confessional/disclosure statement/s made by the appellant leading to the incriminating discoveries/recoveries:

Held: The third circumstance on which the prosecution relied upon to bring home the guilt of the appellant was in form of the confessional/disclosure statement/s made by the appellant leading to the incriminating discoveries/recoveries – The fact that the police officers had told the complainant regarding the location where the body of the victim was disposed of, in the morning of 08.02.2017, is itself sufficient to discard the theory of the prosecution that all the incriminating discoveries were made in pursuance of the disclosure statement made by the appellant – It is apparent that the police had already created the entire story and later on, tried to fit the same into a sequence by postponing the formal arrest of the appellant in order to implicate him in this case – Thus, the claim made by the prosecution that the dead body of the victim was recovered in furtherance of the disclosure statement made by the appellant is belied by cogent material available on record – There is no hesitation in holding that recoveries of the bag, allegedly containing the bottles in which petrol was carried and the undergarment of the victim, were not effected at the instance of the appellant and were planted recoveries – The theory of confessional/disclosure statement of the appellant leading to the discoveries is nothing but a creation of the Investigating Officer (PW-29) and as a matter of fact, all the incriminating facts and circumstances were already in the knowledge of the Investigating Officer (PW-29) and were subsequently woven into a story, projecting a hypothesis that a voluntary confession was made by the appellant leading to the incriminating discoveries of the dead body, the ornaments, etc. – The signatures of appellant were obtained on the confessional statements by detaining him in advance and torturing and beating him and that the appellant was implicated in the case falsely. [Paras 52, 54, 55, 60, 67]

Penal Code, 1860 – ss.302, 201, 363, 366 and 354-B of the IPC – Protection of Children from Sexual Offences Act, 2012 – s.8 r/w. s.7 and s.6 r/w. s.5(m) – Appellant was found guilty for the charges framed u/ss.302, 201, 363, 366 and 354-B of the IPC and s.8 r/w. s.7 and s.6 r/w. s.5(m) of the POCSO Act by the Courts below – Whether the prosecution has proved the vital circumstance of the FSL reports establishing the DNA profiling comparison, which constituted the entire edifice of the prosecution case and on which the conviction of the appellant was based:

Held: The testimony of the Investigating Officer (PW-29) confirms that the prosecution has miserably failed to prove the chain of custody of the forensic articles/samples right from the time of seizure till they reached the FSL – The malkhana In-charge of the police station was not examined in evidence – Neither any forwarding documents except for a forwarding letter, authorising the movement of the forensic articles/samples were proved by the Investigation Officer (PW-29) nor any witness who carried these samples from the police station to the Court or the concerned laboratories, was examined in evidence – Since the sanctity of the samples was not proved by proper evidence, as a necessary corollary, the reports of scientific analysis would lose significance and cannot be relied upon – Though the scientific experts concluded that the DNA profile of the semen stain found on the underwear of the victim was matching with the DNA profile of the appellant but as the very factum of recovery of the Material Object, i.e., the undergarment of the victim has not been established beyond doubt, as a consequence, no sanctity whatsoever can be attached to the conclusions drawn in the Expert Report (Exhibit P-32) – A very serious question has to be posed regarding the time of collection of the blood samples of the appellant – There was no reason whatsoever for the Investigating Agency to have waited for four months before collecting the blood samples of the appellant – There is a strong possibility that the delay may have been utilized to manipulate the samples. [Paras 71, 76, 78]

Crime – Heinous crime – Punishment cannot be based on moral convictions or conjectures – Prosecution is duty-bound to prove the guilt of the accused beyond reasonable doubt: Held: The present case pertains to the commission of a heinous offence involving a girl of tender age of 7 years, at the same time, this Court cannot ignore or bypass the fundamental principle of criminal jurisprudence that the prosecution is duty-bound to prove the guilt of the accused beyond reasonable doubt – The onus is heavier in a case based purely on circumstantial evidence – However, regrettably, the prosecution has miserably failed to do so in the instant case, leaving the Court with no choice but to acquit the appellant, despite the heinous nature of the crime – While it is acknowledged that the acquittal of an individual involved in a heinous crime can lead to societal distress and cause grave anguish to the victim’s family, the legal framework does not permit the Courts to punish an accused person based merely on moral convictions or conjectures – Each case must be adjudicated by the Courts rigorously on its individual merits and in strict conformity with the law, without yielding to public sentiment and external pressures. [Para 80]

Constitution of India – Constitutional right to defend: Held: The constitutional right afforded to an accused charged with an offence to defend himself is not illusory or imaginary – For the trial to be fair and reasonable, an effective opportunity to defend must be provided to the accused and representation by a counsel of choice is an important component of this guarantee – In a case where accused is facing charges for offences which carry capital punishment, this constitutional mandate becomes even more sacrosanct, and it is the duty of the Court as well as the State to ensure that the accused is not prejudiced or deprived of a fair opportunity of defending himself in a case where he may be awarded death penalty. [Para 36]

Natural Justice – Criminal Law – Trial – Fair opportunity of defending:

Held: Such opportunity would require: (a) Providing copies of all relied upon documents to the accused immediately on submission of report u/s.173(2) CrPC (Section 193 BNSS)/committal of case u/s.209 CrPC (Section 232 BNSS); (b) Ensuring that the accused is represented by a lawyer of his own choice and in case, he/she is not in a position to engage a private counsel then, a legal aid defence counsel having requisite experience must be appointed to represent him at the trial; (c) The legal aid counsel so appointed should be given sufficient opportunity to go through the record and prepare the matter for carrying out effective cross-examination from the witnesses; (d) The Court should not act as a mute spectator during recording of evidence, as provided u/s.165 of the Indian Evidence Act, 1872 (Section 168 of the Bhartiya Sakshya Adhiniyam, 2023) – The Court must remain vigilant, and in case any important question necessary to arrive at a just decision of the case is omitted to be put to the witnesses either by the defence counsel or the public prosecutor, the Court must not let such lacuna creep into the proceedings, and it must be ensured that Court put questions to the witnesses for ensuring fairness in the proceedings. [Para 37]