Penal Code, 1860 – ss.376(2)(g), 201 and 302 – Allegation against the accused-appellants that they raped and murdered a minor girl – Trial Court convicted the accused-appellants for the offences punishable u/ss.376(2)(g), 201 and 302 of Penal Code, 1860 – Accused no.1 was sentenced rigorous life imprisonment u/s.376(2)(g) of IPC; seven years rigorous imprisonment u/s.201 of IPC and death penalty u/s.302 of IPC – Accused no.2 was sentenced rigorous life imprisonment u/s.376(2)(g) of IPC; seven years rigorous imprisonment u/s.201 of IPC and rigorous life imprisonment u/s.302 of IPC – The High Court answered the death reference in the affirmative, confirming the death penalty awarded to accused no.1 and dismissed the appeals against conviction preferred by the accused-appellants – Correctness:
Held: 1. It is a settled tenet of criminal jurisprudence that in a case based purely on circumstantial evidence, the prosecution must prove its case beyond reasonable doubt – The incriminating circumstances must be such which point exclusively to the guilt of the accused and are inconsistent with his innocence or the guilt of anyone else – In the instant case, the evidence on the record has fallen woefully short of proving the guilt of the accused-appellants by clinching evidence which can be termed as proving the case beyond all manner of doubt – Hence, appellants are acquitted by giving them the benefit of doubt. [Paras 78-80]
2. A fact emerging from the statement of PW-1 is that he did not mention that the underwear of the child victim was found in the field of accused no.1 – The only fact in deposition of PW-1 which is alleged as incriminating against accused no.1, was the narrative that his wife (PW-2) saw accused no.1 washing his hands and face and going into his house – This Court finds that there is nothing unnatural or unusual in this conduct of accused no.1 as it is natural to carry out these ablutions upon returning from work etc. – Further, accused no.1 has given an explanation in his s.313 CrPC statement that his parents were ill and were hospitalized on the date of the incident – In this background, the fact that accused no.1 was seen by PW-2 rushing into his house, changing clothes and going away cannot be treated to be a suspicious conduct or a fact which inculpates him in the crime. [Paras 28, 30, 35]
3. So far as the accused no. 2 is concerned, the theory set forth by the prosecution, that the comb used by accused no. 2 was recovered from the field and that the sniffer dog, after sniffing the said comb, led the police team to the house of the accused no.
2 is also shrouded in a cloud of doubt – As there is a significant contradiction regarding the colour of the comb which was recovered by the police – Admittedly, there was no special feature in the recovered comb which was an ordinary plastic comb – Further, the procedure pertaining to the exercise of the sniffer dog and failure to prepare any contemporary document for the search by the dog squad makes the entire procedure doubtful – Hence, the theory propounded by the prosecution that the comb found at the spot, was of accused no. 2 falls flat to the ground and is unworthy of credence. [Paras 36-39]
4. The aspect regarding the recovery of the underwear of the child victim from the field of accused no.1 is concerned, the same seems to be a planted recovery and a creation by the Investigating Officer (PW-9) intended to give succor to the prosecution case – The fact regarding the presence of the underwear would definitely have been mentioned in the complaint (Exhibit K-1) filed by (PW 1) to the police – Omission of the fact is far too significant to be overlooked. [Para 43]
5. PW-7, being the medical jurist did not give any opinion regarding the cause of death of the child victim – She claimed to have taken two vaginal swabs and two vaginal smear slides, which were sent for examination of spermatozoa and gonococci – PW-7 did not state that the vaginal swabs and the slides were sealed – She did not even mention the date on which these vital forensic materials were handed over for onward transmission – The witness (PW8-doctor) stated that he collected part of scalp hair with skin for DNA, a piece of sternum bone and eight slides of smear and swabs – Not a single document pertaining to this procedure was proved by the witness – Hence, the entire procedure of collecting forensic samples becomes doubtful. [Paras 49, 51, 52]
6. As per the version of the Investigating Officer (PW-9), he had immediately sealed the comb at the spot – Therefore, the same could not have been available for the sniffer dogs to smell – Evidence of PW-9 is that the personal articles of the child victim, i.e., the frock and the underwear which he seized were never forwarded to the FSL – The very fact that the Investigating Officer (PW-9) did not consider it essential to send the articles to the FSL gives rise to a strong suspicion that the recovery of these articles was a planted recovery. [Paras 55, 56]
7. The DNA reports are totally inadmissible in evidence – There is a total lack of evidence regarding the chain of custody of the blood samples – There is a grave discrepancy in the evidence of the two medical jurists, i.e., PW-7 and PW-8 regarding the number of slides prepared for DNA examination – The conclusions in the first DNA report and the supplementary DNA report are in stark contradiction. [Para 65]
8. The material objects including the clothes of the child victim were exhibited in the evidence of PW-9, but the same were not shown to the parents, i.e., PW-1 and PW-2 for identification when they stepped into the witness box – Hence, a doubt is created as to whether the articles so recovered were actually of the child victim or not – The prosecution has given no explanation whatsoever as to why the clothes of the child victim were not forwarded to the FSL for forensic examination. [Paras 67, 68]
9. In conclusion, there is no hesitation in holding that other than the allegation that the child victim’s chappals, underwear and the water canister were found in the field which was cultivated by accused no.1, the prosecution has failed to lead any credible evidence whatsoever which can be considered to be incriminating the accused-appellants for the crime in question. [Para 77] Evidence – Circumstantial Evidence – Distance between ‘may be proved’ and ‘must be proved’:
Held: The distance between ‘may be proved’ and ‘must be proved’ is small but has to be travelled before the prosecution can seek conviction of the accused in a case based purely on circumstantial evidence. [Para 69]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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