Summary
The appellant was sentenced to death for the rape and murder of a child who went missing from a village Jagran function, and the Uttarakhand High Court confirmed the sentence. The Supreme Court acquitted him, finding that the trial was conducted in undue haste without a fair opportunity to defend, that the 'last seen' witnesses were unreliable because none of them told the police at the spot and no identification parade was held, that the recovery of clothes was planted, and that the DNA report was inadmissible since the expert was not examined and the chain of custody of the samples was not proved.
Issues
- Whether the trial was fair when charges were framed on the day copies of the police papers were supplied, the accused was unrepresented until evidence began, and the evidence was concluded within twenty-seven days with a change of amicus midway.
- Whether the testimony of the 'last seen' witnesses was reliable when none of them had informed the police at the spot, no test identification parade was held and the witnesses were not asked to identify the accused in the dock.
- Whether a DNA/FSL report can be read in evidence when the expert who conducted the profiling was not examined and the sealing, custody and transmission of the samples were not proved.
- Whether the conviction and death sentence could be sustained on the remaining circumstantial evidence.
Provisions considered
- Section 207, Code of Criminal Procedure, 1973Copies of the police report and relied-upon documents must be supplied to the accused without delay. The trial court deferred the matter repeatedly for this purpose and then framed charges on the very day the copies were finally supplied, with the accused unrepresented, which the Court held denied him proper opportunity before being sent for trial. (¶ 15)
- Section 164, Code of Criminal Procedure, 1973The confession recorded through the Magistrate was exhibited but not relied upon by the trial court or the High Court; the Supreme Court found it appeared to have been extracted under duress and was not voluntary, and faulted the trial court for extensively referring to it while framing charges. (¶¶ 4, 12, 15, 37)
- Section 293, Code of Criminal Procedure, 1973Reports of Government scientific experts may be used as evidence. Following Rahul v. State of Delhi, the Court held that DNA profiling reports cannot be admitted ipso facto under this section; the prosecution must prove that the techniques were reliably applied by the expert, and non-examination of the DNA expert, the report being exhibited only through the investigating officer, was fatal. (¶¶ 39, 40)
- Section 45, Indian Evidence Act, 1872DNA evidence is opinion evidence of the kind envisaged by Section 45 whose probative value varies from case to case; merely exhibiting a report does not prove its contents (as held in Rahul, quoted and applied). (¶ 39)
- Sections 24, 25 and 26, Indian Evidence Act, 1872Confessions to police officers or made in police custody are not provable against the accused. The trial court's permitting a sub-inspector and the investigating officer to narrate the accused's confession verbatim in examination-in-chief and exhibiting the confessional statement was held grossly illegal and contrary to the mandate of these sections. (¶¶ 47, 50)
Held
- The trial was a classic example of undue haste denying the accused a just and fair trial: cognizance was taken on the day the chargesheet was filed; copies under Section 207 CrPC were supplied only on 05.11.2016 and charges were framed the same day, with the trial court relying extensively on the Section 164 confession; the accused remained unrepresented throughout and the court made no effort to provide legal aid; the order sheets are silent on whether the FSL report was supplied; an amicus was appointed only on 11.01.2017, the day prosecution evidence began, was changed on 31.01.2017 and the evidence was concluded within twenty-seven days, and a replacement counsel was compelled to cross-examine a witness the same day without time to prepare. The defence had no reasonable opportunity to prepare or cross-examine. (¶¶ 13, 14, 15, 16, 29)
- The 'last seen' evidence was demolished: the witnesses (PW-2, PW-3, PW-5, PW-6, PW-8 and PW-11) claimed to be present when the body was found and the police arrived, yet none told the police that the child had been seen with the appellant; the FIR lodged at about 10 AM contains no whisper of it, and according to the investigating officer the appellant's name surfaced only through village rumour on 27 June. PW-5 admitted identifying the appellant from a newspaper photograph published on the day her statement was recorded; PW-2, PW-3, PW-5 and PW-6 did not know him before, no test identification parade was held and they were not made to identify him in the dock; PW-8 and PW-11 admitted they did not see him take the child away. (¶¶ 18, 19, 20, 21, 23, 24, 26, 29, 32, 33, 34, 35, 36)
- The alleged recovery of blood- and semen-stained clothes from a bag the appellant was carrying two days after the incident, when he was free and had every opportunity to destroy them, was wholly unbelievable and clearly planted. (¶¶ 30, 46)
- The DNA/FSL report could not be read in evidence. The expert who conducted the profiling was not examined and the report was merely exhibited through the investigating officer; DNA reports are not admissible ipso facto under Section 293 CrPC, and the prosecution must prove the techniques were reliably applied. Further, the collection and forwarding of samples was riddled with lacunae: the medical officer did not say the samples taken from the accused were sealed or name the policeman they were handed to; no sealing memos were exhibited; witnesses contradicted each other on whether the body was sealed; the constable who carried the samples to the FSL was silent on who gave them to him and in what condition, and the constable who carried other articles was not examined; there was no evidence of deposit in the malkhana or of transmission, the malkhana in-charge and any FSL witness were not examined. To make a DNA report acceptable, reliable and admissible the prosecution must first prove the sanctity and chain of custody of the samples from collection until they reach the FSL through link evidence; absent that, tampering could not be ruled out. (¶¶ 38, 39, 40, 41, 42, 44, 45, 48, 49, 51, 53, 54, 55, 56)
- Permitting a police officer to narrate verbatim the confession made by the accused during investigation and exhibiting that confession in the officer's evidence is grossly illegal and contrary to Sections 24, 25 and 26 of the Evidence Act, and showed the distorted manner in which the trial was conducted. (¶¶ 47, 50)
- With the last-seen circumstance disbelieved, the confession discarded and the DNA/FSL reports eschewed, no evidence remained to connect the appellant with the crime; the conviction recorded by the trial court and affirmed by the High Court, and the death sentence, could not be sustained. (¶¶ 38, 56, 57)
Result
Appeals allowed; the trial court's judgments dated 05.04.2017 and 06.04.2017 and the High Court's judgment dated 05.01.2018 quashed and set aside; the appellant acquitted of all charges and to be released from custody forthwith if not wanted in any other case; pending applications disposed of.