Summary
A three-Judge Bench set aside the conviction and death sentence of a watchman for the kidnapping, rape and murder of a child aged under four, in a case resting wholly on circumstantial evidence. The Court found that the 'last seen' witnesses, whose statements were recorded only after the accused's arrest despite their names appearing in the spot panchnama, had been created by padding; that the extra-judicial confession was contradicted by the witness's own Section 164 statement; that recoveries made days after the police had already searched the chawl were doubtful and forensically neutral; that the soil-comparison report was neither proved through the expert nor conclusive; and that the prosecution's withholding of the forensic reports of other watchmen invited an adverse inference. The chain of circumstances being broken, the appellant was acquitted and ordered to be released.
Issues
- Whether the prosecution proved a complete chain of circumstances consistent only with the guilt of the accused, as required for conviction on circumstantial evidence.
- Whether the evidence of the 'last seen together' witnesses, who disclosed the circumstance to the police only days after the child went missing and after the accused's arrest, was reliable.
- Whether the alleged extra-judicial confession to the accused's supervisor could be relied on when his earlier statement under Section 164 CrPC contained no such confession.
- Whether the recoveries of clothing and shoes at the instance of the accused, and the forensic report comparing soil on the shoes with soil from the pond, were proved and incriminating.
- Whether an adverse inference arose from the prosecution's failure to produce the forensic reports of samples collected from the other watchmen.
Provisions considered
- Section 293 (reports of Government scientific experts), Code of Criminal Procedure, 1973The expert who prepared the soil-comparison report was not examined, and the Court observed that there was no evidence to show that the expert's observations were admissible ipso facto under Section 293 (corresponding to Section 329 of the Bharatiya Nagarik Suraksha Sanhita, 2023); the report was in any event vague and inconclusive. (¶¶ 72, 73, 74)
- Sections 161 and 164 (statements of witnesses), Code of Criminal Procedure, 1973The Court contrasted the witnesses' testimony with their earlier statements: the last-seen witness PW-14 had said nothing in his Section 164 statement about seeing the child with the accused, and the supervisor PW-17's Section 164 statement contained no extra-judicial confession, his Section 161 statement being recorded only on 12 October 2013. These wholesale improvements destroyed the credibility of both witnesses. The Section 161 statements of the last-seen witnesses were recorded for the first time on 3 October 2013, after the accused's arrest. (¶¶ 45, 48, 49, 53, 58, 59, 60)
Held
- In a case resting entirely on circumstantial evidence the prosecution must prove every link of the chain by unimpeachable evidence leading to the sole hypothesis of guilt, inconsistent with innocence or the guilt of anyone else; any breach in the chain entitles the accused to the benefit of doubt (Sharad Birdhichand Sarda). (¶ 31)
- The prosecution's account of the time, manner and place of the incident was inherently improbable: the child went missing within a fifteen-minute window in broad daylight in a thickly populated area where the father immediately began searching, yet the accused was said to have carried the body one kilometre to a pond unnoticed, which suggested that the incident did not occur in the chawl, or at the time or in the manner alleged. (¶¶ 34, 35, 36, 37)
- The conduct of the 'last seen' witnesses in remaining silent although they knew the child was missing, the police were visiting the area and the body had been recovered, and in disclosing the circumstance only on 3 October 2013 after the accused's arrest, discredited their testimony. PW-14 had made wholesale improvements over his Section 164 statement, and PW-15 never claimed to have seen the accused with the child. These witnesses were created by the investigating officers by way of padding and their evidence was false. (¶¶ 44, 45, 49, 51, 53, 55, 56, 63, 75)
- Although the spot panchnama prepared on 1 October 2013 named the persons who had seen the child, the first investigating officer never recorded their statements, and until the second officer took over on 3 October 2013 there was not a shred of material incriminating the accused; the very foundation for his arrest was lacking. These omissions were fatal to the prosecution and indicative of a flawed and tainted investigation. (¶¶ 52, 53, 54, 63, 67)
- Extra-judicial confession is a weak piece of evidence; where the witness's Section 164 statement recorded no confession, his Section 161 statement was recorded belatedly, the confession emerged only through leading questions by the prosecutor, and he never reported it to the police, the evidence was wholly unreliable. (¶¶ 57, 58, 59, 60, 61, 75)
- Recovery of the accused's lungi, baniyan, uniform and shoes from his room on 8 October 2013 did not inspire confidence, since the first investigating officer had already visited the chawl on 1 October 2013 and a free man could not be expected to preserve incriminating articles; in any event none of the articles tested positive for human blood or semen and the DNA report was inconclusive. (¶¶ 67, 68, 69, 70)
- A forensic report that soil on the accused's shoes tallied with soil from the pond was inconclusive because no samples were collected from other places frequented by the accused to exclude them, and even if accepted it would only indicate that he may at some time have visited the area, which does not incriminate him. (¶¶ 71, 73, 74, 75)
- The prosecution's failure to place on record the forensic reports of samples collected from fifteen to twenty other watchmen amounted to withholding important evidence, compelling an adverse inference against the prosecution. (¶ 75)
- Despite the gruesome nature of the crime, courts cannot convict on conjectures and surmises in an overzealous effort to hold someone responsible; the findings of guilt being based on hardly any reliable evidence, the judgments and sentence were unsustainable. (¶¶ 3, 76)
Result
Appeals allowed; High Court judgment dated 25.11.2021 and the trial court's judgment of conviction dated 05.03.2019 and order of sentence dated 08.03.2019 quashed and set aside; appellant acquitted of all charges and directed to be released forthwith if not required in any other case; pending applications disposed of.