The Supreme Court has clarified that in a case based entirely on circumstantial evidence, the prosecution must establish a complete chain of circumstances. So, when a statement leading to recovery is made when the accused is not in police custody, Section 27 of the Evidence Act is not attracted. At best, such conduct may be admissible under Section 8 as a link in the chain of circumstances, but it is a weak piece of evidence and cannot by itself sustain conviction.
The Court held that matching of DNA evidence may conclusively establish the identity and death of the deceased, but unless the remaining circumstances firmly connect the accused to the crime, conviction cannot be sustained. Also, where the last seen theory is contradicted by documentary evidence and unexplained delays, and where serious doubts arise regarding arrest and investigation, the accused is entitled to the benefit of doubt.
“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 under Section 27 would all the same be acceptable evidence under Section 8, which by itself is a weak piece of evidence”, pointed out the Court.
Accordingly, the Supreme Court set aside the conviction and sentence, holding that the prosecution failed to establish a complete chain of circumstances beyond reasonable doubt.
A Two-Judge Bench comprising Justice Sanjay Kumar and Justice K. Vinod Chandran observed at the outset that a botched investigation had left many questions unanswered and that the conviction rested purely on conjectures. The Bench found that the missing complaint was lodged only on October 11, 2018, although the child was allegedly taken on October 05, 2018. Further, the First Information Statement recorded that the child went missing at 09:00 P.M. on October 06, 2018, which was after the appellant had already been arrested.
Therefore, finding material contradiction in the prosecution version, the Bench noted that one of the prosecution witnesses claimed to have informed the police seven days after the incident, though the family and police already knew from October 05, 2018 that the child had gone with the appellant. These inconsistencies rendered the last seen theory untenable.
On the issue of recovery under Section 27 of the Evidence Act, the Bench noted that the appellant was not in police custody at the time of making the statement on October 13, 2018 at 10:30 A.M., since formal arrest was shown only at 22:00 hours. The Bench emphasised that Section 27 requires that the information must be given while the accused is in custody.
Regarding DNA evidence, the Bench held that the matching of DNA profiles between the vertebrae and teeth recovered from the canal and the biological parents established beyond doubt the death of the child. However, the argument that DNA matching was not put to the accused under Section 313 CrPC was rejected.
The Bench emphasised that only some of the recovered bones matched the DNA profile; the skull and bones from the field did not. Further, the saree in which the bones were wrapped was not identified by the prosecution witness. Hence, the Bench concluded that the suspicious interpolation in arrest documents, the unexplained delay in lodging the missing complaint, the absence of a time of death (as corpus delicti was not fully recovered), and the inconsistencies in the prosecution story created reasonable doubt.
Briefly, appellant, who was living with his two wives, had one child from his first wife, and two children from his second wife. On a fateful day, a quarrel took place between the appellant and his second wife, and she left home after being physically assaulted, and was admitted to a hospital. On her request, her mother went to bring the grandchildren, but the first wife of the appellant informed her that the appellant had taken the younger child.
Not immediately, rather after some time, a missing complaint was registered at the Police Station. Pursuant to a statement made by the appellant under Section 27 of the Indian Evidence Act, he led the police to a field from where burnt bones and ashes were recovered, and to a canal from where a skull, vertebrae, and teeth wrapped in a green saree were recovered. The recovered remains were subjected to forensic examination, where the DNA profile of the vertebrae and teeth recovered from the canal matched with the DNA profiles of the second wife, the biological parents of the deceased child. However, the skull and bones recovered from the field did not match.
The prosecution relied upon three principal circumstances: (i) the last seen together theory through a neighbour; (ii) recovery of bone remnants at the instance of the appellant; and (iii) DNA matching to establish the identity and death of the child. The Trial Court convicted the appellant, and the High Court affirmed the conviction, also relying on Section 106 of the Evidence Act for absence of explanation by the appellant regarding the place of recovery.
The appellant, therefore, approached the Supreme Court proceedings, raising serious doubts regarding the timing of the appellant’s arrest, claiming that the arrest memo showed interpolations in date and time.
Appearances:
Senior Advocate Dr. Rajesh Pandey, AOR Chandrika Prasad Mishra, along with Advocates Prashasti Singh, Ayushi Pandey, Utsav Madan, and Swati Surbhi, for the Appellant
AOR Ankita Sharma, along with Advocates Arjun D. Singh, Ishika Neogi, and Divya Tripathi, for the Respondent
