Circumstantial evidence – Penal Code, 1860 – ss.376A, 302, 366, 363, 201 – Protection of Children from Sexual Offences Act, 2012 – ss.5, 6 – Kidnapping, rape/sexual assault and murder of minor – Case based on circumstantial evidence – Appellant was convicted, death sentence awarded – Sustainability:
Held: Unsustainable – Prosecution relied totally on circumstantial evidence in the form of last seen theory, recoveries, DNA/FSL report and the confession of the appellant – The witnesses remained silent and did not disclose to the police regarding they having seen the appellant taking away the child-victim with himself, thus, the prosecution case regarding the theory of last seen is demolished – Further, non-examination of the scientific expert who carried out the DNA profiling is fatal – DNA report was merely exhibited in evidence by the IO (PW-14) who was not connected with the report in any manner – The procedure of collecting the samples was also tainted on account of non-sealing of the forensic material collected from the appellant – Thus, DNA/FSL reports cannot be read in evidence – Furthermore, the recoveries were planted as the appellant would not keep the clothes with him for almost two days after the incident so as to facilitate the police to recover the same at a later point of time – The confession was also extracted under duress and was not voluntary and as a matter of fact was not even relied upon by the Courts below – Trial was not conducted fairly and the appellant was not given a reasonable opportunity to defend himself – No evidence to connect the appellant with the crime – Impugned judgments set aside – Appellant acquitted. [Paras 12, 16, 35, 39, 40, 42, 46, 56-58]
Circumstantial Evidence – Confession – Evidence Act, 1872 – ss.24, 25, 26 – PW-12 (Sub-Inspector) narrated the entire confession of the appellant-accused in his examination-inchief – Lopsided trial: Held: The procedure adopted by the trial Court in permitting a police officer to verbatim narrate the confession made by an accused during investigation is grossly illegal and contrary to the mandate of ss.24, 25 and 26 – Trial Court also allowed the confessional statement of the appellant to be exhibited in the evidence of the witness, which further establishes that the trial was conducted in a totally distorted manner. [Paras 16, 47]
Circumstantial Evidence – DNA Report – When inadmissible: Held: In order to make the DNA report acceptable, reliable and admissible, the prosecution would first be required to prove the sanctity and chain of custody of the samples/articles right from the time of their preparation/collection till the time they reached the FSL – For this purpose, the link evidence would have to be established by examining the concerned witness – However, in the present case, neither the documents/memorandums pertaining to the proceedings of sealing the samples/articles were exhibited in evidence nor did any of the prosecution witnesses gave evidence for proving the procedure – There is no evidence on record to show that the samples/articles collected from the dead body of the child-victim and those collected from the appellant-accused which were later forwarded to the FSL were properly sealed or that the same remained in a self-same condition right from the time of the seizure till they reached the FSL – No witness from the FSL was examined by the prosecution to prove that the samples/articles were received in a sealed condition – There is every possibility of the samples being tampered/manipulated by the police officers to achieve a favourable result from the FSL, thereby, inculpating the appellant in the crime – DNA/FSL reports cannot be read in evidence. [Paras 51, 54-56]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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