Summary
Two accused were convicted of the gang rape and murder of a 12-year-old girl, one being sentenced to death, on circumstantial evidence comprising recovery of the child's articles from a field cultivated by the first accused, his alleged suspicious conduct, a comb linked to the second accused by a sniffer dog, and DNA reports. A three-Judge Bench acquitted both: the conduct was natural, the comb and underwear recoveries were doubtful or planted, the chain of custody of the forensic samples was wholly unproved, and a supplementary DNA report produced in the High Court through an affidavit, without recalling the expert or putting it to the accused under Section 313 CrPC, was inadmissible.
Issues
- Whether the circumstances relied on by the prosecution formed a complete chain establishing the guilt of the accused beyond reasonable doubt.
- Whether the DNA reports, including a supplementary report produced for the first time before the High Court by affidavit, were admissible and could be relied upon.
- Whether the recoveries of the victim's articles and of a comb attributed to the second accused were proved.
Provisions considered
- Section 313, Code of Criminal Procedure, 1973The supplementary DNA report filed during the appeal was never put to the accused by way of supplementary questioning under Section 313, denying them the opportunity to rebut it; this was one of the reasons it was held inconsequential and inadmissible. The first accused's explanation in his Section 313 statement that his parents were hospitalised that day, admitted by the victim's mother in cross-examination, was accepted as negating the alleged suspicious conduct. (¶¶ 19, 25, 35, 66)
- Section 293 (Section 329 of the Bharatiya Nagarik Suraksha Sanhita, 2023), Code of Criminal Procedure, 1973The Court, referring to this section, held that only evidence of a formal nature can be given on affidavit; a DNA report is substantive evidence and could not be tendered through an affidavit, still less one sworn by an FSL officer who had no connection with the report. (¶ 75)
Held
- In a case resting purely on circumstantial evidence the prosecution must prove its case beyond reasonable doubt; the incriminating circumstances must point exclusively to the guilt of the accused and be inconsistent with innocence or the guilt of anyone else. The distance between 'may be proved' and 'must be proved' has to be travelled, and where the fields in which the body and articles were found were open and accessible to all, the prosecution had to rule out the possibility of anyone else having committed the crime. (¶¶ 69, 70, 78)
- The first accused washing his hands and face, entering his house, changing his clothes and leaving on his cycle was natural conduct for a labourer returning from work and not incriminating; the mother's version was an exaggeration and an improvement over her Section 161 statement, was absent from the complaint, and was answered by the accused's explanation, admitted by her, that his parents were hospitalised that day. (¶¶ 30, 32, 33, 34, 35, 71)
- The theory that a comb recovered near the body belonged to the second accused and that a sniffer dog led the police to his house was unacceptable: the witnesses contradicted each other on the colour of the comb, an ordinary plastic comb of a common design could not be identified as his merely from having seen him use it, the dog squad exercise was not recorded in any contemporaneous document, and the investigating officer claimed to have sealed the comb at the spot, so it could not have been available for the dog to smell. (¶¶ 36, 37, 38, 39, 55)
- The recovery of the victim's underwear from the first accused's field appeared to be a planted recovery: the search party had noticed the chappals, water canister and blood stains, which the complaint mentions, yet the complaint is silent about the underwear; the seized frock and underwear were never sent to the FSL; and the articles were not shown to the parents for identification, casting doubt on whether they were the victim's at all. (¶¶ 42, 43, 56, 68)
- The DNA reports were inadmissible because the prosecution led no evidence of the procedure, date or time of drawing the accused's blood samples or of their consent, the two medical jurists differed on the number of slides prepared at the post-mortem, no witness proved an unbroken chain of custody, neither the malkhana in-charge nor the carrier of the samples was examined, and not a single document relating to the transmission of samples to the FSL was exhibited; the first report was in any event inconclusive. (¶¶ 49, 52, 60, 62, 65, 75)
- The supplementary DNA report dated 02.12.2014, produced during the appeal through an affidavit of an officer unconnected with it, was inconsequential and inadmissible: the expert who issued it was not recalled, it was not put to the accused under Section 313 CrPC, the samples had already been opened and consumed when the first report was prepared so their sanctity was breached, and its conclusions were in stark contradiction with the first report, a discrepancy the prosecution never had the expert reconcile. Section 293 CrPC permits only formal evidence by affidavit; a DNA report is substantive evidence. (¶¶ 63, 66, 67, 75, 76)
- The witness who said the second accused asked him for a spade on the evening of the incident gave evidence of no relevance, and he contradicted himself on whether the spade was given; the investigation was lacklustre, with no neighbour from the adjoining fields examined and no search of the accused's houses, which further undermined the credibility of the alleged recoveries. (¶¶ 44, 45, 72, 73, 74)
- Other than the allegation that the child's chappals, underwear and water canister were found in the field cultivated by the first accused, the prosecution led no credible incriminating evidence; it fell woefully short of proving guilt beyond reasonable doubt and both accused were entitled to the benefit of doubt. (¶¶ 77, 79, 80)
Result
Appeals allowed; the High Court's judgment dated 11.10.2018 confirming the death sentence and dismissing the appeals, and the trial court's judgment of conviction and order of sentence dated 14.03.2014 and 19.03.2014, quashed and set aside; both appellants acquitted and to be released forthwith if not wanted in any other case; pending applications disposed of.