Evidence Act, 1872 – s.27 – Statement of accused made when not in police custody, outside the purview of s.27 – High Court affirmed the conviction and sentence of the accused, the step-father for the murder of his six year-old step-daughter on the basis of the last seen together theory; the ashes and the bony remnants from the charred remains of the child having been recovered on the information supplied by the accused; the skull and teeth recovered from a canal having tallied with the sample DNA profile of the biological parents of the girl child – Interference with:
Held: Order of the Trial Court convicting the accused and that of the High Court affirming the same are set aside – On facts, the last seen together theory fails miserably – Recovery allegedly made u/s.27 is also fraught with inconsistencies – s.27 speaks of information received from a person accused of any offence while in the custody of the police leading to a discovery of a fact being enabled of proof in the trial – The accused at the time of the statement was not in the custody of the police and hence it is removed from the ambit of s.27 – What has been established beyond doubt is only the death of the child whose vertebrae and teeth, recovered from a canal, matched with the DNA profiles obtained from the sample taken from the biological parents – The knowledge of the accused, which led to the detection of the bone remnants though not acceptable u/s.27 would all the same be acceptable evidence u/s.8, which by itself is a weak piece of evidence – The evidence u/s.8 can only offer corroboration and cannot by itself result in a conviction – The suspicion regarding the earlier arrest and incarceration of the accused also would pose serious difficulty in finding a hypothesis of guilt beyond all reasonable doubt – The long gap when there was no complaint made about the missing child and the factum of none having questioned the accused, despite the family and police having been told that she went with the accused tilts the scales in favour of the accused; especially since he was released on 08.10.2018, two days before the FIR was lodged – Moreover, since the corpus delicti was not recovered, there is no time of death specified – Benefit of doubt given to the accused – Acquitted. [Paras 10, 12, 18, 19]
Evidence Act, 1872 – ss.27, 8:
Held: There is nothing indicated to show that the accused, who had accompanied his wife to register the missing complaint was even suspected of being responsible for the missing of the child – In any event, this does not pose any difficulty insofar as the deposition of the I.O, PW 15; that he was led to the field and the canal from where the recovery was made, subsequent to which the person was arrested, though not admissible u/s.27, all the same can be brought u/s.8 – The recovery of the bone remnants having been made at the instance of the accused accepted, though at the time of his statement, he was not in police custody, which could only be a link u/s.8, in the chain of circumstances; but his connection with the crime still has to be proved otherwise – The DNA profiles matched only with the piece of vertebrae and the teeth recovered from the canal, while the skull and those recovered from the field, where the body is said to have been burnt, did not match with the samples taken from the parents – Also, the bones recovered were wrapped in a green saree of PW7, which was not attempted to be identified as belonging to her, by confronting the same to the witness, while she was in the box.[Paras 14-16] Evidence Act, 1872 – s.27 – ‘custody’ – Meaning: Held: Expression ‘custody’ appearing in s.27 does not mean formal custody and includes any kind of surveillance, restriction or restraint by the police – Even if there is no formal arrest made, if a person is within the ken of surveillance of the police, during which his movements are restricted, then it can be regarded as custodial surveillance – In the present case, though the recoveries as per Exts. P3 & P5 Memos were made, in accordance with the confession statement of the accused, Ext. P4 at 10.30 on 13.10.2018, the Arrest/Court Surrender Memo produced at Ex.P27, indicates the arrest of the accused having been made on 13.10.2018 at 22.00 hrs. [Paras 10, 13]
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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