Summary
A three-judge Bench set aside the death sentence of accused No. 1 and the convictions of both appellants for the kidnapping, rape and murder of a young girl who went missing from a wedding, a case resting on circumstantial evidence of motive, 'last seen' and DNA. Motive was unproved; the 'last seen' witnesses surfaced five days later and did not place the child with the accused; the cousin who first told the police where the body lay was never examined; the arrest at Ludhiana, the mobile surveillance story and the hair-band recovery were unsubstantiated; and the DNA report was unreliable because semen was found in the cervical swab but not in the cervical smear or vaginal samples, and the examiner's qualifications were doubtful. Both appellants were acquitted.
Issues
- Whether the prosecution established a complete and unbroken chain of circumstances (motive, last seen together and scientific evidence) to sustain the conviction and death sentence of accused No. 1 for the kidnapping, rape and murder of the child.
- Whether the non-examination of Nikhil Chand, the victim's cousin who first informed the police of the location of the body, warranted an adverse inference against the prosecution.
- Whether the arrest of accused No. 1 at Ludhiana, the tracing of his location through mobile surveillance and the recovery of the hair-band at his instance were proved.
- Whether the DNA report matching accused No. 1's profile with samples from the victim's body was reliable, given the inconsistency between the cervical swab and smear and the examiner's qualifications.
- Whether the case against accused No. 2, resting on the alleged extra-judicial confession of accused No. 1, could survive once the case against accused No. 1 was disbelieved.
- What standard of proof is required before a death sentence can be upheld in a case of circumstantial evidence.
Provisions considered
- Section 53-A, Code of Criminal Procedure, 1973As explained in Mukesh v. State (NCT of Delhi), DNA profiling of a person accused of rape is part of the statutory scheme and is a predominant forensic technique. The Court held, however, that where the arrest was stage-managed, the drawing of samples cannot be regarded as voluntary or reliable, and the DNA report here could not be treated as reliable evidence. (¶¶ 45, 46, 48)
- Sections 376A, 363, 201 and 212, Indian Penal Code, 1860Accused No. 1 had been convicted under Sections 376A, 363 and 201 and sentenced to death, and accused No. 2 under Section 212 (harbouring); all convictions were set aside because the prosecution failed to prove the chain of circumstances beyond reasonable doubt. (¶¶ 3, 51, 55, 56, 57, 58)
- Sections 3, 4, 5, 6, 7, 8, 16 and 17, Protection of Children from Sexual Offences Act, 2012Convictions of accused No. 1 for penetrative and aggravated penetrative sexual assault and sexual assault (with abetment provisions) were set aside along with the IPC convictions as the circumstantial case failed. (¶¶ 3, 51, 57, 58)
- Section 66C, Information Technology Act, 2000Both appellants had already been acquitted of this charge by the High Court; the Court noted this while setting out the history of the case. (¶¶ 3, 4.9)
Held
- The homicidal death of the child was proved by the post-mortem (PW-7), which attributed death to shock and haemorrhage from injuries to the vaginal and perianal region caused by sexual assault and blunt force trauma. The case otherwise rested purely on circumstantial evidence of motive, last seen and scientific evidence, to be tested on the Sharad Birdhichand Sarda conditions: the circumstances must be fully established, consistent only with guilt, conclusive, exclude every other hypothesis and form a chain so complete as to leave no reasonable ground for a conclusion consistent with innocence. (¶¶ 9, 10, 11)
- Motive was not established. The dumper owner (PW-18) told the police of engaging accused No. 1 only 2-3 days after the incident although he had joined the search for the child; his claim of prior acquaintance was contradicted by PW-39; it was improbable that he would entrust an expensive vehicle and Rs. 3,000 to an unknown man on a driver's recommendation; and the accused showed no panic when he came for money, which is inconsistent with guilt. At its highest his evidence shows a temporary driver who disappeared the day after engagement, and nothing in accused No. 2's conduct, who kept driving his employer's dumper and was handed over by him, raised suspicion. In a circumstantial case motive is the psychological link in the chain. (¶¶ 14, 15, 16, 17, 18, 19, 20, 21, 22)
- The 'last seen' circumstance collapsed: the three shopkeepers who said they saw the accused drinking and buying toffees near the venue had their statements recorded only on 25 November 2014, after the body was recovered, and had told no one during the five days of search, raising a legitimate apprehension of subsequent padding; and none of them saw the victim with the accused. Mere presence in the general vicinity is insufficient to sustain the last seen theory in a case of this gravity. (¶¶ 24, 25, 26, 31)
- Nikhil Chand, the victim's cousin, was the first person to tell the police the precise location of the body, which numerous police teams had failed to find; yet he was never interrogated during investigation or examined at trial, and neither court below asked why. Determining how he came to know the location was imperative; this calculated omission deprived the court and the defence of the most vital link, prejudiced the accused and compels an adverse inference against the prosecution. (¶¶ 28, 30, 32, 33)
- The arrest of accused No. 1 at Ludhiana was shrouded in doubt: a 'secret source' who had never known him could not have identified him in a strange city; there was no General Diary entry of the team's departure, no authorisation to arrest and no independent witness; the claim that his location was traced by mobile surveillance was falsified by the nodal officer (PW-28), who deposed that the call detail records were procured only in January 2015, after the arrest; and the subscribers of the two mobile numbers (Lakshmi and Md. Iqbal) were not examined, leaving no admissible evidence linking him to those numbers. The alleged recovery of the victim's hair-band at his instance was inherently improbable and its memo undated, reinforcing the inference of manipulation. (¶¶ 36, 37, 38, 39, 40, 41, 42, 43, 44)
- With the arrest illegal and stage-managed, the drawing of samples from the accused could not be regarded as voluntary or reliable and the foundation of the DNA evidence was compromised. The prosecution alleged rape by three men, yet only accused No. 1's profile matched, and only in the cervical swab, undershirt and underwear: the absence of semen in the vaginal swab and wash, and its presence in the cervical swab but complete absence in the cervical smear slides taken simultaneously from the same site, defies scientific probability and suggests tampering or planting. The jacket on the body bore no blood or semen despite death by profuse bleeding within minutes. Cumulatively these circumstances made the collection, examination and matching of samples wholly unreliable; once the DNA report was eschewed, nothing connected accused No. 1 with the crime. (¶¶ 45, 46, 47, 48)
- The credentials of the forensic witness (PW-34), whose qualifications were an M.Sc. and Ph.D. in Botany with no specialised course in DNA profiling, were doubtful for a human DNA expert, though the report was not discarded on that ground alone. (¶¶ 49, 50)
- In cases resting on circumstantial evidence every link must be firmly and conclusively established, and where two views are possible the one favourable to the accused must be adopted. The death penalty may be imposed only in the rarest of rare cases (Bachan Singh; Machhi Singh) and only on unimpeachable, cogent evidence excluding every hypothesis of innocence; even the slightest infirmity in the prosecution case must weigh against it, and courts must consider mitigating circumstances in a detailed sentence hearing (Manoj). Here it would be wholly unsafe to uphold the conviction, much less the extreme penalty. (¶¶ 52, 53, 54)
- The case against accused No. 2 rested primarily on the alleged extra-judicial confession of accused No. 1; once the prosecution's version against accused No. 1 was disbelieved, the derivative case against accused No. 2 lost all credibility and his conviction could not be sustained. (¶¶ 55, 56)
Result
Appeals allowed; the High Court's common judgment dated 18.10.2019 in Criminal Reference No. 1 of 2016 and Criminal Appeal No. 104 of 2016, and the trial court's judgment dated 11.03.2016 in Session Trial No. 09 of 2015, set aside; both appellants acquitted of all charges and to be released forthwith if not required in any other case; bail bonds discharged; pending applications disposed of.