Penal Code, 1860 – ss. 365, 367, 376(2)(g), 302, 201 & 34 – A girl was kidnapped when she was returning from her job along with her friends – She was raped and killed later on and her body was thrown in open field – FIR was registered against the accusedappellant u/s 365, 367, 376(2)(g), 302, 201 read with 34 of IPC – Trial Court after appreciating the evidence on record and material recovered during investigation, convicted and sentenced them with death penalty – The same was confirmed by the High Court in Death Sentence Reference referred by the Session Court – On appeal, held: Neither any T.I. Parade was conducted by the investigating officer during the course of investigation for the identification of the accused, nor any of the witnesses had identified the accused during their respective depositions before the Court – The circumstances under which the accused were arrested and the car was seized have also raised serious doubts in the story put-forth by the prosecution – None of the witnesses had seen the registration number of the car in which the victim was kidnapped – The trial Court had allowed the entire disclosure statements of the three accused to be admitted in evidence, the said statements being in nature of the confessions before the police were hit by s.25 of the Evidence Act – Trial Court had committed gross error in exhibiting the entire disclosure statements of the accused recorded – The incriminating articles were sent to the CFSL for examination however, no conclusive opinion was given by the CFSL to establish their link with the accused – The call details record of the phone being electronic record, was also not proved in terms of s.65B of the Evidence Act – It has been noticed from the record that out of the 49 witnesses examined by the prosecution, 10 material witnesses were not cross-examined and many other important witnesses were not adequately cross-examined by the defence counsel – The Appellants-accused were deprived of their rights to have a fair trial, apart from the fact that the truth also could not be elicited by the trial Court – Judgments and orders of conviction and sentence passed by the trial Court and the High Court set aside. Evidence Act, 1872 – 27, 45 & 65B – Circumstantial Evidence – The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused only and none else – The evidence with regard to the arrest of the appellants-accused, their identification, discoveries and recoveries of the incriminating articles, identity of the Indica Car, the seizures and sealing of the articles and collection of samples, the medical and scientific evidence, the report of DNA profiling, the evidence with regard to the CDRs etc. were not proved by the prosecution by leading, cogent, clinching and clear evidence much less unerringly pointing the guilt of the accused.
Evidence Act, 1872 – s.165 – Section 165 of the Indian Evidence Act confers unbridled powers upon the trial courts to put any question at any stage to the witnesses to elicit the truth – The Judge is not expected to be a passive umpire but is supposed to actively participate in the trial, and to question the witnesses to reach to a correct conclusion.
Allowing the appeal, the Court
HELD: 1.1 Neither any T.I. Parade was conducted by the investigating officer during the course of investigation for the identification of the accused, nor any of the witnesses had identified the accused during their respective depositions before the Court. Therefore, the very identity of the Appellants -accused having not been duly established, the entire case of the prosecution falls flat on the very first circumstance having not been duly proved by any evidence much less clinching evidence, against the Appellants-accused. [Para 20][1147-D-E]
1.2 As regards the arrest of the accused-R, PW-12 ASI had stated before the Court that the accused-R was seen driving the red Indica Car, and he looked perplexed; when he asked for the documents of the said vehicle, the accused-R could not produce ANR.
them and therefore he (PW-12) apprehended ‘R’ and handed over his custody to the SHO at P.S. Chhawla. The PW-12 ASI had tried to explain that there was a message from the Control Room that a girl was abducted in a red coloured Indica Car and the police had to apprehend the said vehicle and to report to the concerned SHO, and therefore he apprehended R. Thus, the accused R was apprehended because he was driving one red Indica Car. Pertinently, none of the witnesses examined by the prosecution had identified the Indica Car which was allegedly being driven by ‘R’ on 13.02.2012. P.W-29, the complainant S had admitted in her cross-examination that she could not say with certainty that it was the same car in which the victim was kidnapped. None of the witnesses had seen even the registration number of the car in which the victim was kidnapped. [Para 22][1148-B-D]
1.3 It may be noted that the trial court had allowed the entire disclosure statements of the three accused to be admitted in evidence by exhibiting the same as Ex. PW-39/B, PW-41/B and PW-41/C. The said statements were recorded by the PW-48, SG, when they were in police custody. The said statements being in nature of the confessions before the police were hit by Section
25 of the Evidence Act. The law in this regard is very clear that the confession before the police officer by the accused when he is in police custody, cannot be called an extra-judicial confession. If a confession is made by the accused before the police, and a portion of such confession leads to the recovery of any incriminating material, such portion alone would be admissible under Section 27 of the Evidence Act, and not the entire confessional statements. In the instant case, therefore the trial court had committed gross error in exhibiting the entire disclosure statements of the accused recorded by the PW-48 P1, for being read in evidence. Though, the information furnished to the Investigating Officer leading to the discovery of the place of the offence would be admissible to the extent indicated in Section
27 read with Section 8 of the Evidence Act, but not the entire disclosure statement in the nature of confession recorded by the police officer. [Para 25][1149-F-H; 1150-A-B]
1.4 The recovery of a strand of hair found from the body of the deceased by ASI BS as per the Seizure Memo (Exhibit 34/A) is also highly doubtful, inasmuch as the same was allegedly found from the body of the deceased which was lying in the open field for about three days and three nights. The PW-8 father of the deceased and PW-3 and PW-7 neighbours of the deceased who had identified the dead body of the victim had not stated anything about the articles lying near the dead body. The learned advocates for the appellants had also drawn the attention of the Court with regard to number of inconsistencies and contradictions appearing in the evidence of the Haryana Police, Delhi Police and also in the testimonies of the formal witnesses, which render the entire evidence with regard to the discovery and recovery as also seizure of the incriminating articles, very unreliable. The seizure of the articles like burnt ash, underwear of the deceased etc. on 14.02.2012 at the instance of the accused were also not duly proved by the prosecution. The said articles were sent to the CFSL for examination however, no conclusive opinion was given by the CFSL to establish their link with the accused. [Para 27][1150-G-H; 1151-A-B]
1.5 In the instant case, the alleged incident of kidnapping had taken place on 09.02.2012 and the dead body of the victim was found on 13.02.2012. Hence, the time of death was also very much significant, however in view of the state in which the dead body was found, the Post-Mortem Report Ex.26/A is also not clear about the timing as to when the death had occurred. The Post-Mortem report stated the time of death to be 72 to 96 hours i.e. between 10.02.2012 to 11.02.2012, as the post-mortem had taken on 14.02.2012. However, as per the case of the prosecution, death would have taken place on the intervening night of 09.02.2012 to 10.02.2012. The body of the deceased also did not show any signs of putrefaction. It is highly unlikely that the dead body would have remained in the field for three days without being noticed by anybody. [Para 29][1151-E-G]
1.6 The Amicus Curiae has also assailed the forensic evidence i.e., the report regarding the DNA Profiling dated 18.04.2012 (Exhibit P-23/1) giving incriminating findings. She ANR.
vehemently submitted that apart from the fact that the collection of the samples sent for examination itself was very doubtful, the said forensic evidence was neither scientifically nor legally proved and could not have been used as a circumstance against the Appellants-accused. The Court finds substance in the said submissions made by the Amicus Curiae. The DNA evidence is in the nature of opinion evidence as envisaged under Section 45 and like any other opinion evidence, its probative value varies from case to case. It is true that PW-23, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion. [Paras 31 & 32][1152-C-E; 1157-FH; 1158-A-B]
2. Thus, having regard to the totality of circumstances and the evidence on record, it is difficult to hold that the prosecution had proved the guilt of the accused by adducing cogent and clinching evidence. As per the settled legal position, in order to sustain conviction, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused only and none else. The circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. As demonstrated earlier, the evidence with regard to the arrest of the Appellantsaccused, their identification, discoveries and recoveries of the incriminating articles, identity of the Indica Car, the seizures and sealing of the articles and collection of samples, the medical and scientific evidence, the report of DNA profiling, the evidence with regard to the CDRs etc. were not proved by the prosecution by leading, cogent, clinching and clear evidence much less unerringly pointing the guilt of the accused. The prosecution has to bring home the charges levelled against them beyond reasonable doubt, which the prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the accused, though involved in a very heinous crime. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise. The Court is constrained to make these observations as the Court has noticed many glaring lapses having occurred during the course of the trial. It has been noticed from the record that out of the 49 witnesses examined by the prosecution, 10 material witnesses were not cross-examined and many other important witnesses were not adequately cross-examined by the defence counsel. It may be reminded that Section 165 of the Indian Evidence Act confers unbridled powers upon the trial courts to put any question at any stage to the witnesses to elicit the truth. As observed in several decisions, the Judge is not expected to be a passive umpire but is supposed to actively participate in the trial, and to question the witnesses to reach to a correct conclusion. In the instant case, material witnesses examined by the prosecution having not been either cross-examined or adequately examined, and the trial court also having acted as a passive umpire, it is ANR.
found that the Appellants-accused were deprived of their rights to have a fair trial, apart from the fact that the truth also could not be elicited by the trial court. It is left to the wisdom and discretion of the trial courts to exercise their powers under Section 165 of the Indian Evidence Act for eliciting the truth in the cases before them, howsoever heinous or otherwise they may be. [Paras 3335][1158-B-H; 1159-A-B; 1160-F-G] Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Padala Veera Reddy vs. State of Andhra Pradesh & Ors. (1989) Suppl.
2 SCC 706; Navaneethakrishnan vs.State by Inspector of Police (2018) 16 SCC 161 – relied on.
Manoj and Ors. Vs. State of Madhya Pradesh (2022) SCC Online SC 677; State of Rajasthan vs. Ani alias Hanif and Others (1997) 6 SCC 162 : [1997] 1 SCR
199 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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