RAHUL versus STATE OF DELHI MINISTRY OF HOME AFFAIRS & ANR. on 7 November 2022

RAHUL

v.

STATE OF DELHI MINISTRY OF HOME AFFAIRS & ANR.

(Criminal Appeal No. 611 of 2022)

NOVEMBER 07, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT AND BELA M. TRIVEDI, JJ.]

Penal Code, 1860 – ss. 365, 367, 376(2)(g), 302, 201 & 34 –A girl was kidnapped when she was returning from her job alongwith her friends – She was raped and killed later on and her bodywas thrown in open field – FIR was registered against the accused-appellant u/s 365, 367, 376(2)(g), 302, 201 read with 34 of IPC –Trial Court after appreciating the evidence on record and materialrecovered during investigation, convicted and sentenced them withdeath penalty – The same was confirmed by the High Court in DeathSentence Reference referred by the Session Court – On appeal,held: Neither any T.I. Parade was conducted by the investigatingofficer during the course of investigation for the identification ofthe accused, nor any of the witnesses had identified the accusedduring their respective depositions before the Court – Thecircumstances under which the accused were arrested and the carwas seized have also raised serious doubts in the story put-forth bythe prosecution – None of the witnesses had seen the registrationnumber of the car in which the victim was kidnapped – The trialCourt had allowed the entire disclosure statements of the threeaccused to be admitted in evidence, the said statements being innature of the confessions before the police were hit by s.25 of theEvidence Act – Trial Court had committed gross error in exhibitingthe entire disclosure statements of the accused recorded – Theincriminating articles were sent to the CFSL for examinationhowever, no conclusive opinion was given by the CFSL to establishtheir link with the accused – The call details record of the phonebeing electronic record, was also not proved in terms of s.65B ofthe Evidence Act – It has been noticed from the record that out ofthe 49 witnesses examined by the prosecution, 10 material witnesseswere not cross-examined and many other important witnesses werenot adequately cross-examined by the defence counsel – The

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1130SUPREME COURT REPORTS

AAppellants-accused were deprived of their rights to have a fair trial,apart from the fact that the truth also could not be elicited by thetrial Court – Judgments and orders of conviction and sentencepassed by the trial Court and the High Court set aside.

Evidence Act, 1872 – 27, 45 & 65B – Circumstantial EvidenceB– The circumstances taken cumulatively should form a chain socomplete that there is no escape from the conclusion that within allhuman probability, the crime was committed by the accused onlyand none else – The evidence with regard to the arrest of theappellants-accused, their identification, discoveries and recoveriesof the incriminating articles, identity of the Indica Car, the seizuresCand sealing of the articles and collection of samples, the medicaland scientific evidence, the report of DNA profiling, the evidencewith regard to the CDRs etc. were not proved by the prosecution byleading, cogent, clinching and clear evidence much less unerringlypointing the guilt of the accused.D

Evidence Act, 1872 – s.165 – Section 165 of the IndianEvidence Act confers unbridled powers upon the trial courts to putany question at any stage to the witnesses to elicit the truth – TheJudge is not expected to be a passive umpire but is supposed toactively participate in the trial, and to question the witnesses toEreach to a correct conclusion.

Allowing the appeal, the Court

Conclusion

HELD: 1.1 Neither any T.I. Parade was conducted by theinvestigating officer during the course of investigation for theidentification of the accused, nor any of the witnesses hadFidentified the accused during their respective depositions beforethe Court. Therefore, the very identity of the Appellants -accusedhaving not been duly established, the entire case of theprosecution falls flat on the very first circumstance having notbeen duly proved by any evidence much less clinching evidence,Gagainst the Appellants-accused. [Para 20][1147-D-E]

1.2 As regards the arrest of the accused-R, PW-12 ASI hadstated before the Court that the accused-R was seen driving thered Indica Car, and he looked perplexed; when he asked for thedocuments of the said vehicle, the accused-R could not produce H

them and therefore he (PW-12) apprehended ‘R’ and handed overhis custody to the SHO at P.S. Chhawla. The PW-12 ASI had triedto explain that there was a message from the Control Room thata girl was abducted in a red coloured Indica Car and the policehad to apprehend the said vehicle and to report to the concernedSHO, and therefore he apprehended R. Thus, the accused R wasapprehended because he was driving one red Indica Car.Pertinently, none of the witnesses examined by the prosecutionhad identified the Indica Car which was allegedly being driven by‘R’ on 13.02.2012. P.W-29, the complainant S had admitted inher cross-examination that she could not say with certainty thatit was the same car in which the victim was kidnapped. None ofthe witnesses had seen even the registration number of the carin which the victim was kidnapped. [Para 22][1148-B-D]

1.3 It may be noted that the trial court had allowed the entiredisclosure statements of the three accused to be admitted inevidence by exhibiting the same as Ex. PW-39/B, PW-41/B andPW-41/C. The said statements were recorded by the PW-48, SG,when they were in police custody. The said statements being innature of the confessions before the police were hit by Section25 of the Evidence Act. The law in this regard is very clear thatthe confession before the police officer by the accused when heis in police custody, cannot be called an extra-judicial confession.If a confession is made by the accused before the police, and aportion of such confession leads to the recovery of anyincriminating material, such portion alone would be admissibleunder Section 27 of the Evidence Act, and not the entireconfessional statements. In the instant case, therefore the trialcourt had committed gross error in exhibiting the entiredisclosure statements of the accused recorded by the PW-48 P1,for being read in evidence. Though, the information furnished tothe Investigating Officer leading to the discovery of the place ofthe offence would be admissible to the extent indicated in Section27 read with Section 8 of the Evidence Act, but not the entiredisclosure statement in the nature of confession recorded by thepolice officer. [Para 25][1149-F-H; 1150-A-B]

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A1.4 The recovery of a strand of hair found from the body ofthe deceased by ASI BS as per the Seizure Memo (Exhibit 34/A)is also highly doubtful, inasmuch as the same was allegedly foundfrom the body of the deceased which was lying in the open fieldfor about three days and three nights. The PW-8 father of thedeceased and PW-3 and PW-7 neighbours of the deceased whoBhad identified the dead body of the victim had not stated anythingabout the articles lying near the dead body. The learned advocatesfor the appellants had also drawn the attention of the Court withregard to number of inconsistencies and contradictions appearingin the evidence of the Haryana Police, Delhi Police and also inCthe testimonies of the formal witnesses, which render the entireevidence with regard to the discovery and recovery as also seizureof the incriminating articles, very unreliable. The seizure of thearticles like burnt ash, underwear of the deceased etc. on14.02.2012 at the instance of the accused were also not dulyproved by the prosecution. The said articles were sent to theDCFSL for examination however, no conclusive opinion was givenby the CFSL to establish their link with the accused. [Para27][1150-G-H; 1151-A-B]

1.5 In the instant case, the alleged incident of kidnappinghad taken place on 09.02.2012 and the dead body of the victimEwas found on 13.02.2012. Hence, the time of death was also verymuch significant, however in view of the state in which the deadbody was found, the Post-Mortem Report Ex.26/A is also notclear about the timing as to when the death had occurred. ThePost-Mortem report stated the time of death to be 72 to 96 hours Fi.e. between 10.02.2012 to 11.02.2012, as the post-mortem hadtaken on 14.02.2012. However, as per the case of the prosecution,death would have taken place on the intervening night of09.02.2012 to 10.02.2012. The body of the deceased also did notshow any signs of putrefaction. It is highly unlikely that the deadbody would have remained in the field for three days without beingGnoticed by anybody. [Para 29][1151-E-G]

1.6 The Amicus Curiae has also assailed the forensicevidence i.e., the report regarding the DNA Profiling dated18.04.2012 (Exhibit P-23/1) giving incriminating findings. She H

ANR.

vehemently submitted that apart from the fact that the collectionof the samples sent for examination itself was very doubtful, thesaid forensic evidence was neither scientifically nor legally provedand could not have been used as a circumstance against theAppellants-accused. The Court finds substance in the saidsubmissions made by the Amicus Curiae. The DNA evidence isin the nature of opinion evidence as envisaged under Section 45and like any other opinion evidence, its probative value variesfrom case to case. It is true that PW-23, Senior Scientific Officer(Biology) of CFSL, New Delhi had stepped into the witness boxand his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove itscontents. The record shows that all the samples relating to theaccused and relating to the deceased were seized by theInvestigating Officer on 14.02.2012 and 16.02.2012; and they weresent to CFSL for examination on 27.02.2012. During this period,they remained in the Malkhana of the Police Station. Under thecircumstances, the possibility of tampering with the samplescollected also could not be ruled out. Neither the Trial Court northe High Court has examined the underlying basis of the findingsin the DNA reports nor have they examined the fact whether thetechniques were reliably applied by the expert. In absence ofsuch evidence on record, all the reports with regard to the DNAprofiling become highly vulnerable, more particularly when thecollection and sealing of the samples sent for examination werealso not free from suspicion. [Paras 31 & 32][1152-C-E; 1157-F-H; 1158-A-B]

2. Thus, having regard to the totality of circumstances andthe evidence on record, it is difficult to hold that the prosecutionhad proved the guilt of the accused by adducing cogent andclinching evidence. As per the settled legal position, in order tosustain conviction, the circumstances taken cumulatively shouldform a chain so complete that there is no escape from theconclusion that within all human probability, the crime wascommitted by the accused only and none else. The circumstantialevidence must be complete and incapable of explanation of anyother hypothesis than that of the guilt of the accused and suchevidence should not only be consistent with the guilt of the accused AB

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Abut should be inconsistent with his innocence. As demonstratedearlier, the evidence with regard to the arrest of the Appellants-accused, their identification, discoveries and recoveries of theincriminating articles, identity of the Indica Car, the seizures andsealing of the articles and collection of samples, the medical andscientific evidence, the report of DNA profiling, the evidenceBwith regard to the CDRs etc. were not proved by the prosecutionby leading, cogent, clinching and clear evidence much lessunerringly pointing the guilt of the accused. The prosecution hasto bring home the charges levelled against them beyondreasonable doubt, which the prosecution has failed to do in theCinstant case, resultantly, the Court is left with no alternative butto acquit the accused, though involved in a very heinous crime.It may be true that if the accused involved in the heinous crimego unpunished or are acquitted, a kind of agony and frustrationmay be caused to the society in general and to the family of thevictim in particular, however the law does not permit the CourtsDto punish the accused on the basis of moral conviction or onsuspicion alone. No conviction should be based merely on theapprehension of indictment or condemnation over the decisionrendered. Every case has to be decided by the Courts strictly onmerits and in accordance with law without being influenced byEany kind of outside moral pressures or otherwise. The Court isconstrained to make these observations as the Court has noticedmany glaring lapses having occurred during the course of thetrial. It has been noticed from the record that out of the 49witnesses examined by the prosecution, 10 material witnesseswere not cross-examined and many other important witnessesFwere not adequately cross-examined by the defence counsel. Itmay be reminded that Section 165 of the Indian Evidence Actconfers unbridled powers upon the trial courts to put any questionat any stage to the witnesses to elicit the truth. As observed inseveral decisions, the Judge is not expected to be a passiveGumpire but is supposed to actively participate in the trial, and toquestion the witnesses to reach to a correct conclusion. In theinstant case, material witnesses examined by the prosecutionhaving not been either cross-examined or adequately examined,and the trial court also having acted as a passive umpire, it is H

found that the Appellants-accused were deprived of their rightsto have a fair trial, apart from the fact that the truth also could notbe elicited by the trial court. It is left to the wisdom and discretionof the trial courts to exercise their powers under Section 165 ofthe Indian Evidence Act for eliciting the truth in the cases beforethem, howsoever heinous or otherwise they may be. [Paras 33-35][1158-B-H; 1159-A-B; 1160-F-G]

Sharad Birdhichand Sarda vs. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Padala VeeraReddy vs. State of Andhra Pradesh & Ors. (1989) Suppl.2 SCC 706; Navaneethakrishnan vs.State by Inspectorof Police (2018) 16 SCC 161 – relied on.

Manoj and Ors. Vs. State of Madhya Pradesh (2022)SCC Online SC 677; State of Rajasthan vs. Ani aliasHanif and Others (1997) 6 SCC 162 : [1997] 1 SCR199 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.611 of 2022.

From the Judgment and Order dated 26.08.2014 of the High Courtof Delhi at New Delhi in Crl. A No.563/2014.

With

Criminal Appeal Nos.612-613 And 614-615 of 2022.

Ms. Aishwarya Bhati, ASG, Ms. Sonia Mathur, Sr. Adv.,/AmicusCuriae, A. Sirajudeen, Ms. Kiran Suri, Sr. Advs., Ms. Shivani Misra,Ms. Khushboo Aggarwal, Ms. Prerna Dhall, Simarjeet Singh Saluja,Harinder Mohan Singh, Parnam Prabhakar, Karthik Vasan, Ms. Nidhi,S.S. Ray, Prashant Singh, Ms. Ruchi Kohli, Abhay Kumar, SughoshSubramanyam, Gurmeet Singh Makker, Dr. (Ms.) Charuwali Khanna,Dharmendra Pal, Krishna Kumar, Ms. Nandani Gupta, Dr. (Ms.) VipinGupta, Advs. for the appearing parties.

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AThe Judgment of the Court was delivered by BELA M. TRIVEDI, J.

1. All the appeals arise out of the common judgment and orderdated 26.08.2014 passed by the High Court of Delhi at New Delhi, inthe Death Sentence Reference No. 01/2014 with Criminal Appeal Nos.B563/2014, 726/2014 and 1036/2014, whereby the High Court whileaffirming the sentence of death and other sentences imposed on theAppellants-accused by the Additional Sessions Judge, Special Fast TrackCourt, Dwarka Courts, New Delhi (hereinafter referred to as the ‘TrialCourt’) in Sessions Case No. 91/2013 had dismissed the criminal appealsCfiled by the Appellants-accused. The Trial Court vide the Order dated19.02.2014 had convicted all the three Appellants-accused i.e., A1 RaviKumar, A2 Vinod @ Chhotu and A3 Rahul for the offences punishableunder Sections 365/34, 367/34, 376(2)(g), 302/34 and 201/34 IPC,however had acquitted all the three from the charge under Section 377/34 IPC. The order of sentences imposed on the accused read as under:-D

“1. To imprisonment for a period of five years alongwith a fine ofRs.25,000/- each for the offence punishable under Section 365/34 IPC. The convicts shall undergo further imprisonment for aperiod of six months each in case of default in payment of fine;and E

2. To imprisonment for a period of five years alongwith a fine ofRs.25,000/- each for the offence punishable u/s. 367/34 IPC. Theconvicts shall undergo further imprisonment for a period of sixmonths each in case of default in payment of fine; and F3. To imprisonment with a fine of Rs.50,000/- each for the offencepunishable u/s 376(2) (g) IPC. The convicts shall undergo furtherimprisonment for a period of one year each in cases of non-payment of fine; and

4. To death for the offence punishable u/s 302/34 IPC with a fineof Rs.50,000/- each; and G

5. To imprisonment for a period of three years with a fine ofRs.10,000/- each for the offence punishable u/s201/34 IPC. Theconvicts shall undergo further imprisonment for a period of sixmonths each in case of non-payment of fine.”

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2. The case of prosecution as emerging from the record andproceedings of the Trial Court is that an information was received in thePolice Station Chhawla on 09.02.2012 at 09:18 PM from the police controlroom that a girl was kidnapped in the red-coloured Tata Indica Car nearHanuman Chowk, Qutub Vihar, Chhawla and the car had proceededtowards Shyam Vihar. The information was recorded as DD No. 27 A,and the investigation was entrusted to SI Prakash Chand. Accordingly,SI Prakash Chand along with the constable Rakesh reached at the spotnear Hanuman Chowk, Qutub Vihar, where they met a girl namedSaraswati. On her statement being recorded to the effect that on09.02.2012 at about 08:45 PM, when she was returning from her job atDLF Gurgaon along with her friends Pooja, Sangeeta and the victimAnamika (name is changed), and when they were walking near theHanuman Chowk, a red coloured Indica Car came from behind;the driversuddenly applied breaks on reaching near to them; that a boy opened thedoor of the car and pulled Anamika forcibly inside the car; that therewere other three or four boys sitting in the Indica Car. On the basis ofthe said statement of the complainant Saraswati, an FIR was registeredunder Section 363 of IPC. The investigation was commenced by the SIPrakash Chand.

3. On 12.02.2012, the investigation of the case was transferred tothe special staff south-west New Delhi and was entrusted to SI AshokKumar. On 13.02.2012, further investigation of the case was entrustedto Inspector Sandeep Gupta. On thesame day ASI Rajender Singhproduced the accused Rahul and a red coloured Indica Car bearingregistration no. DL-3 CAF-4348 before the Inspector Sandeep Gupta,stating that accused Rahul who was found perplexed and roaming in thesaid car near Metro station, sector-9 Dwarka, New Delhi.

4. During the course of interrogation of the accused Rahul by theInspector Sandeep Gupta, Rahul confessed that he along with his brotherRavi and one Vinod @ Chhotu had kidnapped a girl from Qutub Vihar;hadcommitted rape on her, had killed her and hadthrown her dead bodyin the fields ahead of Jhajjar. The said accused Rahul therefore wasarrested, and subsequently the accused Ravi and accused Vinod werealso arrested.The disclosure statements of the other two accused werealso recorded wherein they had admitted to have kidnapped, gang rapedand killed the victim.

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A5. As per the further case of the prosecution, when the aforesaidTata Indica car was seized, mobile phones were recovered from thepersonal search of the accused Rahul and the accused Ravi, and theywere also seized. Thereafter, inspector Sandeep Gupta alongwith hisstaff and the two accused Ravi and Vinod left for the search of the deadbody of the victim, and found the same lying in the mustard fields, nearBKarawara Morel, village Rodai, at the instance of the two accused.Information about the same was conveyed to P.S. Rodai. ThereafterASI Balwan alongwith his Crime Team from P.S. Rodai also reached atthe spot. The Crime Team lifted some hair strands from the body of thedeceased as well as two plastic glasses, one empty pouch of snacks,Cpiece of earthenware pot, a broken piece of a red-coloured plastic bumperand one wallet near the dead body. Thereafter ASI Balwan Singh sentthe dead body to Civil Hospital, Rewari for postmortem examination.The two accused were brought to Delhi and were got medically examined.During the course of further interrogation, the accused Rahul gotrecovered the mobile phone of the deceased. The accused also gotDrecovered the panty of the deceased which she was wearing at the timeof incident and the steel Parat, in which they had burnt the articlesbelonging to the deceased.

6. On 15.02.2012 further investigation of the case was entrustedto Inspector Ranjeet Singh. He got the aforesaid Tata Indica Car inspectedEby CFSL team. Hair strands found inside the car as well as in its seatcovers were seized. He obtained the opinion from the autopsy doctorregarding the Jack and Pana, which were found in the Tata Indica Carand it was opined by the doctor that the external injuries found on thebody of the deceased were possible by the said Jack and Pana. The hairFstrands of the deceased which had been preserved by the autopsy doctorwere sent to Safdarjung Hospital for examination. All the articles liftedfrom and near the dead body were sent to CFSL for examination. TheTata Indica Car was also sent to CFSL for examination. The IO alsoobtained the call details record of mobile no. [REDACTED] of the deceased,mobile no. [REDACTED] of the accused Rahul and mobile no. [REDACTED]Gof the accused Ravi. The DNA reports were also obtained on the articlesseized and sent to the CFSL, New Delhi.

7. After completion of the investigation, Charge Sheet was laidbefore the concerned court. Upon the committal of the case to the courtof Sessions, Charges u/s 365/34 IPC, u/s 367/34, u/s 376(2)(g) IPC, u/sH

377/34 IPC, u/s 302 IPC and u/s 201/34 IPC were framed against all thethree accused on 26.05.2012. Since the accused pleaded not guilty tothe said charges, trial was held.

8. The prosecution had examined 49 witnesses to bring home theguilt of the accused. The accused were examined u/s. 313 Cr.PC on27.11.2013 wherein all of them denied the incriminating facts andcircumstances put to them and claimed false implication. One witnesswas examined on behalf of the accused Rahul and Ravi in their defence.He was the Legal Assistant of ‘Nav Bharat Times’ and had brought theissue dated 15.02.2012 of daily newspaper ‘Nav Bharat Times’ Ex.DW1/A.

9. The Trial Court after appreciating the evidence on recordadduced by the prosecution and by the accused, convicted and sentencedthem as stated hereinabove, which has been confirmed by the HighCourt vide the impugned order.

10. The present appeals were filed by the accused through theSupreme Court Legal Services Committee. Considering the facts onrecord, the Court vide order dated 05.12.2019 had requested learnedSenior Counsel Ms. Sonia Mathur to appear as an Amicus Curiae.Accordingly learned Amicus Curiae Ms. Mathur and learned SeniorAdvocate Mr. A. Sirajudeen, appearing for the Appellants-accused andlearned ASG Ms. Aishwarya Bhati appearing for the Respondent-statewere heard at length.

11. The learned Amicus Curiae Ms. Sonia Mathur and learnedSenior Advocate Mr. Sirajudeenfor the appellants broadly made thefollowing submissions:

(i) The identity of any of the Appellants-accused in the allegedabduction of the victim was not established.

(ii) The circumstances under which the possession of redcoloured Tata Indica Car was recovered from the appellantRahul, and the circumstances under which all the threeaccused were arrested, were not proved.

(iii) The recoveries made from the scene of offence allegedlyat the instance of the appellants on 13.02.2021, were alsonot proved.

(iv) The recoveries of articles like broken piece of bumper, walletand hair strands allegedly recovered from the place where A

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Athe body of the deceased victim was found, were highlydoubtful, as the same were not mentioned by the keywitnesses during the course of their respective depositions.

(v) There were discrepancies with regard to the photographyand the videography done by the Delhi Police and HaryanaBPolice and with regard to the position of the arm, visibilityof the jeans lining and mud on the jeans of the deceasedand the presence of a wallet seen in the photographs, whichcreated a dent in the credibility of the investigation carriedby the prosecution.

C(vi)Recoveries of articles made on 14.02.2012 from the openplaces which were easily accessible to the public was notsupported by any independent witnesses.

(vii) The post-mortem report did not prove the time of the deathof the victim, in view of the state in which the body wasdiscovered.D

(viii) The forensic evidence collected against the accused duringthe course of investigation was not scientifically and legallyproved and therefore could not be used as a circumstanceagainst the appellants.

E(ix)The call details record of the accused Rahul and Ravi werenot proved to be incriminatory.

(x) There was violation of fair trial rights of the accused, asten material witnesses were not cross-examined, and manyother crucial witnesses were not adequately examined byFthe defence counsel during the course of the trial.

12. The learned ASG Ms. Aishwarya Bhati has made the followingsubmissions:

(i) There being concurrent findings of the facts and convictionsrecorded by the Trial Court and the High Court after fullyGappreciating the evidence on record,this Court may notdisturb the same considering the gravity of the offences forwhich the appellants were charged.

(ii) The case against Rahul was proved by the prosecutionbyexamining all material witnesses including the ASI RajenderH

Singh who had apprehended him, while he was driving redcoloured Tata Indica Car in question.A jack and spannerand a strand of hair were found in the said Tata Indica Carand the jack was found to be stained with blood.

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(iii) DNA profile generated from jack and hair found in the carand female fraction DNA obtained from the vaginal swabof Anamika were consistent with each other.

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(iv) The injuries found on the victim Anamika were possible tohave been caused by the jack and spanner found in the car

(v) A broken piece of bumper found near the dead body ofCAnamika was opined to be the piece of bumper of redcoloured Indica Car being driven by Rahul.

(vi) From the testimony of PW-10 Hari Om, it was establishedthat the car was with Rahul from 07:45 AM on January 9,2012 till around 10:00AM of February 10, 2012, during theperiod when the crime was allegedly committed.D

(vii) The semen of Rahul was detected on the seat cover of theIndica Car.(viii) A wallet containing two ATM cards, a driving licence,photocopies of school leavingcertificates and PAN card,was found near place where Anamika’s dead body wasrecovered and it was proved that it was the wallet of theaccused Rahul.

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(ix) The hair strand recovered from the dead body of Anamikamatched with the DNA extracted from the blood sample ofthe accused Ravi.

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(x) The accused Ravi was carrying a mobile phone havingtelephone no. [REDACTED] when he was arrested, and thecall details records showed that during the period Anamikawas removed from Delhi and her body dumped in villageRodai, the said phone was foundaround the area of villageRodai.

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(xi) So far as the accused Vinod was concerned, the DNAprofile of the semen extracted from the vaginal swab ofAnamika matched with his DNA profile, and his semen H

Awas also detected from the seat cover of Tata India Cardriven by Rahul.

13. After the arguments on the issue of conviction were concluded,certain directions were given by this Court to the Respondent-State toplace the report of the Probation Officer relating to the appellants, theBreport of the Jail Administration about the nature of the work done bythe appellants in jail. Directions were also issued to the DirectorVIMHANS to constitute a suitable team for the psychiatric evaluationof the appellants and to place the report on record. Accordingly, all thereports have been placed on record by the concerned authorities. Thefather of the victim Kunwar Singh Negi had filed an application beingCCrl.M.P. No. 5559 of 2015 seeking his impleadment as a party respondentto enable him to participate in the proceedings. Another application wasalso filed by one Yogita Bhayana to implead her as a party respondenton the ground that she was a support person of the family of the deceased-victim and activist working in the field of providing counselling and succourDto sexually abused children in Delhi as well as other states.

14. Having heard the learned counsel for the parties, in the lightof the evidence on record, it cannot be denied that the entire case ofprosecution rested on the circumstantial evidence, and that the victimwas raped and brutally murdered. The Trial Court relying upon theEfollowing circumstances as“proved” convicted and sentenced theAppellants-accused for the charged offences:

“(1) The deceased has been kidnapped in a red colour Tata Indicacar.

(2) The red colour Tata Indica car bearing registration No. DLF3C AF 4348 belonging to PW-10 was in the custody of accusedRahul from 07.45 am on 9.2.2012 till 9 a.m. on 10.2.2012 andfrom 11.2.2012 to 13.2.2012.

(3) The female hair strand was found on the rear seat of theaforesaid Tata Indica car and DNA generated from it was foundGsimilar to the DNA of the deceased implying that it was the hairof the deceased.

(4) The DNA generated from the semen spots found on the seatcovers of the aforesaid Tata Indica car was similar to that ofaccused Rahul.

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(5) The dead body of the deceased was recovered from the fieldsof village Rodai at the instance of accused Ravi and Vinod on13.2.2012.

(6) A red colour purse containing some cash, ATM cards as wellas PAN card and driving license in the name of Rahul were foundnear the dead body of the deceased.

(7) The three accused had pointed out the spot, on which theyhad smashed the head of the deceased with a ‘Matka’ in order tokill her.

(8) A Jack and pana were recovered from the boot of the aforesaidTata Indica car bearing registration No. DL 3C AF 4348, whichwas having blood spots and DNA generated from the blood spotswas found similar to that of the deceased implying that deceasedwas hit by said Jack and Pana.

(9) The autopsy doctor (PW26) opined that the injuries found onthe dead body of ‘Anamica’ could be possible by aforesaid Jackand Pana.

(10) A broken piece of bumper of the aforesaid Tata Indica carbearing registration No. DL 3C AF 4348 was also recovered fromnear the dead body of the deceased in the fields of village Rodai.

(11) The panty of the deceased was got recovered by accusedVinod from a vacant plot adjacent to house No. RZ-54, PalamVihar, Sector-6, Dwarka, belonging to PW-11 where the threeaccused were residing as a tenant.

(12) Accused Rahul had got recovered the broken mobile phoneof the deceased from amongst the bushes on the central verge infront of the road near Karnal Cinema Hall, near Rajinder Dhaba,Delhi.

(13) The vaginal swab of the deceased was found to have mixedmale DNA profile, which was similar to that of accused Vinod aswell as accused Ravi.

(14) The location of mobile phones of the accused Rahul, accusedRavi and the deceased was around Jhajhar, Haryana in the nightintervening between 09.2.2012 and 10.2.2012 when the deceasedwas kidnapped, raped and murdered.”

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A15. The High Court also believing the same set of circumstancesas“proved” further noted that the two incriminating circumstances ofthe DNA of a strand of hair recovered from Anamica’s dead bodymatching DNA of Ravi and DNA generated from semen spots found onseat cover of the Indica car matching DNA profile of Vinod wereoverlooked by the Trial Court.B

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16. The law pertaining to the appreciation of circumstantialevidence is quite well settled by this Court in catena of decisions. InSharad Birdhichand Sarda vs. State of Maharashtra[1], this Courtafter taking note of earlier decisions had carved out five principles: - “152. Before discussing the cases relied upon by the High CourtCwe would like to cite a few decisions on the nature, character andessential proof required in a criminal case which rests oncircumstantial evidence alone. The most fundamental and basicdecision of this Court is Hanumant v. State of MadhyaPradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this CourtDin a large number of later decisions up-to-date, for instance, thecases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969)3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State ofMaharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may beuseful to extract what Mahajan, J. has laid down in HanumantEcase [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :

“It is well to remember that in cases where the evidence is of acircumstantial nature, the circumstances from which the conclusionof guilt is to be drawn should in the first instance be fully established,and all the facts so established should be consistent only with thehypothesis of the guilt of the accused. Again, the circumstancesFshould be of a conclusive nature and tendency and they should besuch as to exclude every hypothesis but the one proposed to beproved. In other words, there must be a chain of evidence so farcomplete as not to leave any reasonable ground for a conclusionconsistent with the innocence of the accused and it must be suchGas to show that within all human probability the act must havebeen done by the accused.”

153. A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accused canbe said to be fully established:

(1) the circumstances from which the conclusion of guilt is to bedrawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 :

“Certainly, it is a primary principle that the accused must be andnot merely may be guilty before a court can convict and the mentaldistance between ‘may be’ and ‘must be’ is long and divides vagueconjectures from sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty,

(3) the circumstances should be of a conclusive nature andtendency,

(4) they should exclude every possible hypothesis except the oneto be proved, and

(5) there must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of a case based on circumstantialevidence.”

17. In Padala Veera Reddy vs. State of Andhra Pradesh &Ors[2] , it was observed as under:

“10………. (1) the circumstances from which an inference ofguilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringlypointing towards guilt of the accused;

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A(3) the circumstances, taken cumulatively, should form a chain socomplete that there is no escape from the conclusion that withinall human probability the crime was committed by the accusedand none else; and

(4) the circumstantial evidence in order to sustain conviction mustBbe complete and incapable of explanation of any other hypothesisthan that of the guilt of the accused and such evidence should notonly be consistent with the guilt of the accused but should beinconsistent with his innocence. (See Gambhir v. State ofMaharashtra .”

C18. The said principles have also been followed inNavaneethakrishnan vs. State by Inspector of Police (2018) 16 SCC161. Keeping in view the afore-stated principles, let us examine whetherthe circumstances relied upon by the Trial Court and the High Courtcogently and firmly established the guilt of the Appellants-accused.

D19. The first and foremost circumstance relied upon by theprosecution was with regard to the victim having been kidnapped in ared coloured Tata Indica Caron 09.02.2012 at about 8:45 p.m. In thisregard the prosecution has relied upon evidence of PW-1 Pooja Rawat,PW-2 Vikas Singh Rawat, PW-4 Vikas, PW-29 Saraswati and PW-42Sangeeta. As per the case of the prosecution, the victim along with PW-E1 Pooja Rawat, PW-29 Saraswati and PW-42 Sangeeta was returninghome and when she and her friends were walking through HanumanChowk, a red-coloured Tata Indica car came from behind and suddenlystopped near them. One boy thereafter came out of the car and pulledthe victim into the car. There were other three-four persons sitting in theFsaid car. At that time PW-4 Vikas tried to intervene, but the said boys inthe car started quarrelling with him and thereafter drove out the caralong with victim. Though the said story put forth by the prosecution toan extent,is supported by the concerned witnesses viz. PW-1 PoojaRawat, PW-4 Vikas, PW-29 Saraswati, and PW-42 Sangeeta, none ofthe said witnesses had identified the accused sitting in the Court duringGthe course of their respective depositions. Even the PW-4 Vikas, whohad some altercations with the boys attempting to kidnap the victimalsocould not identify any of the accused sitting in the Court during the courseof his deposition and say that the accused were the boys with whom hehadthe altercations as they were kidnapping the victim. Further, the PW-H1 Pooja Rawat stated that the Appellants-accused had covered their

faces, whereas PW-29 Saraswati and PW-4 Vikas stated that the facesof the accused could not be recognized because of darkness. PW-2Vikas Singh Rawat who happened to be the brother of PW-1 PoojaRawat and whose house was situated near Hanuman Chowk hadimmediately come out of the house and had stated to have seen the redcoloured Indica car going towards Tajpur. The said witness also thereforecould not identify the persons who had kidnapped the victim. The PW-8Kunwar Singh Negi, father of the deceased had stated that his daughterwas kidnapped on 09.02.2012 by some unknown persons when she wasreturning from Gurgaon along with her friends, however, he having notwitnessed the incident, also could not identify the accused. There wasno T.I. parade conducted by any of the Investigating Officers during thecourse of their respective investigations.

20. From the said evidence of the concerned witnesses, it clearlytranspires that neither any T.I. Parade was conducted by the investigatingofficer during the course of investigation for the identification of theaccused, nor any of the witnesses had identified the accused duringtheir respective depositions before the Court. Therefore, the very identityof the Appellants -accused having not been duly established, the entirecase of the prosecution falls flat on the very first circumstance havingnot been duly proved by any evidence much less clinching evidence,against the Appellants-accused.

21. The next important circumstance relied upon by theprosecution was the arrest of the accused Rahul with red coloured Indicacar on 13.02.2012. Again, turning to the case of prosecution, it appearsthat after the alleged incident of kidnapping, an information was receivedby the Police Station Chhawla, New Delhi through call at 21:18 hours on09.02.2012 to the effect that a girl was kidnapped in a red-coloured TataIndica Car near Hanuman Chowk, Qutub Vihar, Chhawla. The saidinformation was recorded as DD No.27A at the said police station. Onreceving the said information S.I. Prakash Chand (PW-45) who wasposted at P.S. Chhawla, along with constable Rakesh had gone to thespot at Hanuman Chowk, where they met the complainant- Saraswati.She gave her statement with regard to the alleged incident and on thebasis of her statement, the FIR was got registered under Section 363IPC by SI Prakash Chand. Thereafter on 13.02.2012 when theinvestigation was entrusted to the SHO, P.S. Chhawla, Inspector SandeepGupta (PW-48), the ASI Rajinder Singh from P.S. Sector-23, Dwarka AB

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A(PW-12) produced the accused-Rahul and one red coloured Indica Carbearing Registration No. DL 3C AF 4348 stating that the accused Rahulwas found roaming in the said car near Metro station, Sector 9, Dwarka,New Delhi.

22. As regards the arrest of the accused-Rahul, PW-12 ASIBRajinder Singh had stated before the Court that the accused-Rahul wasseen driving the red Indica Car, and he looked perplexed; when he askedfor the documents of the said vehicle, the accused-Rahul could notproduce them and therefore he (PW-12) apprehended Rahul and handedover his custody to the SHO at P.S. Chhawla. The PW-12 ASI Rajinderhad tried to explain that there was a message from the Control RoomCthat a girl was abducted in a red coloured Indica Car and the police hadto apprehend the said vehicle and to report to the concerned SHO, andtherefore he apprehended Rahul. Thus, the accused Rahul wasapprehended because he was driving one red Indica Car. Pertinently,none of the witnesses examined by the prosecution had identified theDIndica Car which was allegedly being driven by Rahul on 13.02.2012.P.W-29, the complainant Saraswati had admitted in her cross-examinationthat she could not say with certainty that it was the same car in whichthe victim was kidnapped. None of the witnesses had seen even theregistration number of the car in which the victim was kidnapped.

E23. Now, as per the further case of the prosecution, the accused-Rahul gave a disclosure statement (Ex. PW-39/B) before InspectorSandeep Guptaon the basis of which the other accused Vinod and Raviwere brought to the police station by the beat constables, and they werealso arrested at 14:45 and 15:00 hours respectively. They also gave theirdisclosure statements (Ex. P.W-39/A and Ex.PW-39/C) before P-1FSandeep Gupta. The said beat constables were not examined by theprosecution before the Trial Court. The non-examination of the said beatconstables has created a cloud of doubt in the story of the arrests of theaccused, as in the further statements, recorded under Section 313 ofCr.P.C., the accused-Rahul had stated that Ravi was lifted from hisGhouse, and when he (i.e., Rahul) reached to the police station in theevening to enquire about Ravi, he was arrested and the car was seized.The accused-Vinod and Ravi have also stated that they were picked upfrom their home. Thus, the circumstances under which the accused werearrested and the car was seized have also raised serious doubts in thestory put-forth by the prosecution.H

24. Curiously, the evidence with regard to the time as who reachedto the place of incident first where the body of the victim was lying,isalso not clear. PW-46 ASI Balwan Singh P.S. Rodai, Haryana, statedthat on 13.02.2012 on the receipt of DD No. 24, he along with headconstable Vinod and head constable Aman Kumar had reached to thefields near Karawara Railway Phatak, Rewari, where he found thatSHO P.S. Chhawla, Sandeep Gupta (PW-48) and other staff memberswere already there. In his cross-examination PW-46 stated that hereceived the DD No. 24 at about 11.30 a.m or 12.00 noon, and he hadreached to the spot at around 4.30 p.m. P.W. 48 P1 Sandeep Guptastated that on 13.02.2012, after arrest of all the three accused and visitingthe spot from where the alleged kidnapping had taken place, he alongwithhis team and the two accused Ravi and Vinod, leaving Rahul at thepolice station, had gone to P.S. Rodai, Distt. Rewari, Haryana he furtherstated that thereafter, on the accused Ravi and Vinod having indicated,they all reached to the spot i.e., the field where the dead body of thevictim was lying. Since a PCR van of P.S. Rodai was parked there, aninformation was sent to P.S Rodai through PCR officials and thereafterASI Balwant Singh along with his staff reached the spot. Thus, thereare contradictions in the respective depositions of P.W.-46 and P.W.-48as to how and when they reached to the spot where the dead body ofthe victim was found lying. Though the said DD No. 24 was an extremelycrucial piece of evidence, the said document was not got exhibited as anevidence by the prosecution.

25. At this juncture, it may be noted that the trial court had allowedthe entire disclosure statements of the three accused to be admitted inevidence by exhibiting the same as Ex.PW-39/B, PW-41/B and PW-41/C. The said statements were recorded by the PW-48, Sandeep Gupta,when they were in police custody. The said statements being in natureof the confessions before the police were hit by Section 25 of the EvidenceAct. The law in this regard is very clear that the confession before thepolice officer by the accused when he is in police custody, cannot becalled an extra-judicial confession. If a confession is made by the accusedbefore the police, and a portion of such confession leads to the recoveryof any incriminating material, such portion alone would be admissibleunder Section 27 of the Evidence Act, and not the entire confessionalstatements. In the instant case, therefore the trial court had committedgross error in exhibiting the entire disclosure statements of the accusedrecorded by the PW-48 P1 Sandeep Kumar Gupta, for being read in ABC

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Aevidence. Though, the information furnished to the Investigating Officerleading to the discovery of the place of the offence would be admissibleto the extent indicated in Section 27 read with Section 8 of the EvidenceAct, but not the entire disclosure statement in the nature of confessionrecorded by the police officer.B26. This takes us to the next circumstance with regard to thealleged discovery of incriminating articles on 13.02.2021 namely, thebroken piece of bumper, wallet containing the documents connecting theaccused-Rahul etc. In this regard, the evidence of the Delhi Police andthe Haryana Police Officers would be relevant. Though PW-32 HeadConstable Omkar Singh of P.S. Chhawla and PW-36 ASI Atar Singh, inCcharge of Crime Team South-West District, New Delhi, stated aboutthe recovery of the said incriminating articles, PW-37, PW-38, PW-39and PW-41 who were also there at the spotdid not make any mentionabout the said articles. Again PW-31 photographer called at the instanceof P.S. Rodai also did not state about the said articles. The other non- Dofficial witnesses i.e. PW-3, PW-7, PW-8 and PW-14 also did not stateanything about such discoveries or recoveries. The prosecution had alsonot proved by cogent evidence that the broken piece of bumper lyingnear the dead body of the victim was of the red coloured indica carseized from the accused-Rahul. Further, the seizure memo of the wallet(Exhibit 34/A) mentioned only that one red coloured wallet containingERs.365 and a list of things was seized. There was no mention about anydocument in the seizure memo which could connect the accused Rahul.If the ATM cards, driving licence, photocopies of school leavingcertificates and PAN card connecting the accused Rahul, were foundfrom the said wallet, no Investigating Officer would commit such a blunder Fof not mentioning them in the seizure memo. The accused-Rahul in hisfurther statement under Section 313 had stated that the said articleswere taken away from him at the police station.

27. The recovery of a strand of hair found from the body of thedeceased by ASI Balwan Singh as per the Seizure Memo (Exhibit 34/A)Gis also highly doubtful, inasmuch as the same was allegedly found fromthe body of the deceased which was lying in the open field for aboutthree days and three nights. The PW-8 father of the deceased and PW-3 and PW-7 neighbours of the deceased who had identified the deadbody of the victim had not stated anything about the articles lying nearthe dead body. The learned advocates for the appellants had also drawnH

the attention of the Court with regard to number of inconsistencies andcontradictions appearing in the evidence of the Haryana Police, DelhiPolice and also in the testimonies of the formal witnesses, which renderthe entire evidence with regard to the discovery and recovery as alsoseizure of the incriminating articles, very unreliable. The seizure of thearticles like burnt ash, underwear of the deceased etc. on 14.02.2012 atthe instance of the accused were also not duly proved by the prosecution.The said articles were sent to the CFSL for examination however, noconclusive opinion was given by the CFSL to establish their link with theaccused.

28. The next circumstance relied upon by the prosecution wasthe alleged recovery of the phone of the deceased at the instance of theaccused Rahul from the bushes on the road divider opposite to RajinderDhaba near Kamal Cinema. Though PW-8 Kunwar Singh Negi, fatherof the deceased had stated that mobile phone no.[REDACTED] was in hisname and was used by his daughter, he was not shown the phoneinstrument for the purpose of identity. The call details record of the saidphone being electronic record, was also not proved in terms of Section65B of the Evidence Act. Hence, this part of the evidence also does nottake the case of the prosecution any further.

29. In the instant case, the alleged incident of kidnapping hadtaken place on 09.02.2012 and the dead body of the victim was found on13.02.2012. Hence, the time of death was also very much significant,however in view of the state in which the dead body was found, thePost-Mortem Report Ex.26/A is also not clear about the timing as towhen the death had occurred.The Post-Mortem report stated the timeof death to be 72 to 96 hours i.e. between 10.02.2012 to 11.02.2012, asthe post-mortem had taken on 14.02.2012. However, as per the case ofthe prosecution, death would have taken place on the intervening nightof 09.02.2012 to 10.02.2012. The body of the deceased also did notshow any signs of putrefaction. It is highly unlikely that the dead bodywould have remained in the field for three days without being noticed byanybody.

30. The learned Senior Advocates appearing for the appellantshave also rightly drawn the attention of the Court to the timings and themanner in which the samples were collected during the course of post-mortem of the deceased, to submit that the PW-48 P1 Sandeep Kumarwas present at the hospital when the post-mortem was conducted on A

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A14.02.2012, and therefore there was no reason to collect the samplesfrom the body of the deceased on 16.02.2012. The collection and sealingof the samples during the MLC of the accused which had taken placeon 14.02.2012 at the RTMR Hospital, Jaffarpur also does not inspireconfidence. The story of blood stains and semens found on the seatcovers of the Indica Car seized on 13.02.2012 and sent to the CFSL forBexamination also appears to be highly improbable and unreliable. Thereis no clear evidence as to who was in custody of the said car after itsseizure till it was sent to CFSL for examination and as to whether thecar was sealed during the said period.

31. The learned Amicus Curiae has also assailed the forensicCevidence i.e., the report regarding the DNA Profiling dated 18.04.2012(Exhibit P-23/1) giving incriminating findings. She vehemently submittedthat apart from the fact that the collection of the samples sent forexamination itself was very doubtful, the said forensic evidence wasneither scientifically nor legally proved and could not have been used asDa circumstance against the Appellants-accused. The Court findssubstance in the said submissions made by the Amicus Curiae. The DNAevidence is in the nature of opinion evidence as envisaged under Section45 and like any other opinion evidence, its probative value varies fromcase to case. In this regard a very pertinent observations made by thisCourt in case of Manoj and Ors. Vs. State of Madhya Pradesh[3 ]deserveEto be made. This Court has in detail dealt with the issue of DNA profilingmethodology and statistical analysis, as also the collection andpreservation of DNA evidence. The relevant paragraphs read as under:- “138. During the hearing, an article published by the CentralForensic Science Laboratory, Kolkatawas relied upon. The relevantFextracts of the article are reproduced below:

“Deoxyribonucleic acid (DNA) is genetic material presentin the nuclei of cells of living organisms. An average human bodyis composed of about 100 trillion of cells. DNA is present in thenucleus of cell as double helix, supercoiled to form chromosomesGalong with Intercalated proteins. Twenty-three pairs ofchromosomes present In each nucleated cells and an individualInherits 23 chromosomes from mother and 23 from fathertransmitted through the ova and sperm respectively. At the timeof each cell division, chromosomes replicate and one set goes to

each daughter cell. All Information about Internal organisation,physical characteristics, and physiological functions of the body isencoded in DNA molecules in a language (sequence) of alphabetsof four nucleotides or bases: Adenine (A), Guanine (G), Thymine(T) and Cytosine (C) along with sugar-phosphate backbone. Ahuman haploid cell contains 3 billion bases approx. All cells of thebody have exactly same DNA but it varies from individual toIndividual in the sequence of nucleotides. Mitochondrial DNA(mtDNA) found in large number of copies in the mitochondria iscircular, double stranded, 16,569 base pair in length and showsmaternal inheritance. It is particularly useful in the study of peoplerelated through the maternal line. Also being in large number ofcopies than nuclear DNA, it can be used in the analysis of degradedsamples. Similarly, the Y chromosome shows paternal inheritanceand is employed to trace the male lineage and resolve DNA frommales in sexual assault mixtures.

Only 0.1 % of DNA (about 3 million bases) differs from oneperson to another. Forensic DNA Scientists analyse only fewvariable regions to generate a DNA profile of an individual tocompare with biological clue materials or control samples.

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DNA Profiling Methodology

DNA profile is generated from the body fluids, stains, and otherbiological specimen recovered from evidence and the results arecompared with the results obtained from reference samples. Thus,a link among victim(s) and/or suspect(s) with one another or withcrime scene can be established. DNA Profiling Is a complexprocess of analyses of some highly variable regions of DNA. Thevariable areas of DNA are termed Genetic Markers. The currentgenetic markers of choice for forensic purposes are Short TandemRepeats (STRs). Analysis of a set of 15 STRs employingAutomated DNA Sequencer gives a DNA Profile unique to anIndividual (except monozygotic twin). Similarly, STRs present onY chromosome (Y-STR) can also be used in sexual assault casesor determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presenceof high level of female portion or in case of azoo11permic or

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SUPREME COURT REPORTS

vasectomized” male. Cases In which DNA had undergoneenvironmental stress and biochemical degradation, min lSTRs canbe used for over routine STR because of shorter amplicon size.

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DNA Profiling is a complicated process and each sequential stepinvolved in generating a profile can vary depending on the facilitiesavailable In the laboratory. The analysis principles, however, remainsimilar, which include:

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1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping C

4. statistical analysis & interpretation.

In mtDNA analysis, variations in Hypervariable Region I & II(HVR I & II) are detected by sequencing and comparing resultswith control samples:….

DStatistical Analysis

Atypical DNA case involves comparison of evidence samples,such as semen from a rape, and known or reference samples,such as a blood sample from a suspect. Generally, there are threepossible outcomes of profile comparison:

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1) Match: If the DNA profiles obtained from the two samples areindistinguishable, they are said to have matched.

2) Exclusion: If the comparison of profiles shows differences, itcan only be explained by the two samples originating from differentsources.

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3) Inconclusive: The data does not support a conclusion Of thethree possible outcomes, only the “match” between samples needsto be supported by statistical calculation. Statistics attempt toprovide meaning to the match. The match statistics are usuallyGprovided as an estimate of the Random Match Probability (RMP)or in other words, the frequency of the particular DNA profile ina population.

In case of paternity/maternity testing, exclusion at more than twoloci is considered exclusion. An allowance of 1 or 2 loci possiblemutations should be taken Into consideration while reporting a H

match. Paternity of Maternity Indices and Likelihood Ratios arecalculated further to support the match.

Collection and Preservation of Evidence

If DNA evidence is not properly documented, collected, packaged,and preserved, It will not meet the legal and scientific requirementsfor admissibility in. a court of law. Because extremely smallsamples of DNA can be used as evidence, greater attention tocontamination issues is necessary while locating, collecting, andpreserving DNA evidence can be contaminated when DNA fromanother source gets mixed with DNA relevant to the case. Thiscan happen when someone sneezes or coughs over the evidenceor touches his/her mouth, nose, or other part of the face and thentouches area that may contain the DNA to be tested. The exhibitshaving biological specimen, which can establish link amongvictim(s), suspect(s), scene of crime for solving the case shouldbe Identified, preserved, packed and sent for DNA Profiling.”

139. In an earlier judgment, R v. Dohoney & Adams the UKCourt of Appeal laid down the following guidelines concerningthe procedure for introducing DNA evidence in trials: (1) thescientist should adduce the evidence of the DNA comparisonstogether with his calculations of the random occurrence ratio; (2)whenever such evidence is to be adduced, the Crown (prosecution)should serve upon the defence details as to how the calculationshave been carried out, which are sufficient for the defence toscrutinise the basis of the calculations; (3) the Forensic ScienceService should make available to a defence expert, if requested,the databases upon which the calculations have been based.

140. The Law Commission of India in its report, observed asfollows:

“DNA evidence involves comparison between genetic materialthought to come from the person whose identity is in issue and asample of genetic material from a known person. If the samplesdo not ‘match’, then this will prove a lack of identity between theknown person and the person from whom the unknown sampleoriginated. If the samples match, that does not mean the identityis conclusively proved. Rather, an expert will be able to derivefrom a database of DNA samples, an approximate number A

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reflecting how often a similar DNA “profile” or “fingerprint” isfound. It may be, for example, that the relevant profile is found in1 person in every 100,000: This is described as the ‘randomoccurrence ratio’ (Phipson 1999).

Thus, DNA may be more useful for purposes of investigation butnot for raising any presumption of identity in a court of law.”

141. In Dharam Deo Yadav v. State of UP this court discussedthe reliability of DNA evidence in a criminal trial, and held asfollows:

“The DNA stands for deoxyribonucleic acid, which is the biologicalblueprint of every life. DNA is made-up of a double standardstructure consisting of a deoxyribose sugar and phosphatebackbone, cross-linked with two types of nucleic acids referredto as adenine and guanine, purines and thymine and cytosinepyrimidines…..DNA usually can be obtained from any biologicalmaterial such as blood, semen, saliva, hair, skin, bones, etc. Thequestion as to whether DNA tests are virtually infallible may be amoot question, but the fact remains that such test has come tostay and is being used extensively in the investigation of crimesand the Court often accepts the views of the experts, especiallywhen cases rest on circumstantial evidence. More than half acentury, samples of human DNA began to be used in the criminaljustice system. Of course, debate lingers over the safeguards thatshould be required in testing samples and in presenting the evidencein Court. DNA profile, however, is consistently held to be validand reliable, but of course, it depends on the quality control andquality assurance procedures in the laboratory.”

142. The US Supreme Court, in District Attorney’s Office forthe Third Judicial District v. Osborne, dealt with a post-convictionclaim to access evidence, at the behest of the convict, who wishedto prove his innocence, through new DNA techniques. It wasobserved, in the context of the facts, that “Modern DNA testing can provide powerful new evidence unlikeanything known before. Since its first use in criminal investigationsin the mid-1980s, there have been several major advances in DNAtechnology, culminating in STR technology. It is now often possibleto determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceedwithout any forensic and scientific testing at all, there is notechnology comparable to DNA testing for matching tissues whensuch evidence is at issue. DNA testing has exonerated wronglyconvicted people, and has confirmed the convictions of manyothers.”

143. Several decisions of this court - Pantangi Balarama VenkataGanesh v. State of Andhra Pradesh, Santosh Kumar Singh v. StateThrough CBI, Inspector of Police, Tamil Nadu v. JohnDavid, Krishan Kumar Malik v. State of Haryana, SurendraKoli v. State of Uttar Pradesh, and Sandeep v. State of UttarPradesh, Rajkumar v. Stateof Madhya Pradesh and Mukeshv. State for NCT of Delhi have dealt with the increasingimportance of DNA evidence. This court has also emphasizedthe need for assuring quality control, about the samples, as wellas the technique for testing-in Anil v. State of Maharashtra “7. Deoxyribonucleic acid, or DNA, is a molecule that encodesthe genetic information in all living organisms. DNA genotypecan be obtained from any biological material such as bone, blood,semen, saliva, hair, skin, etc. Now, for several years, DNA profilehas also shown a tremendous impact on forensic investigation.Generally, when DNA profile of a sample found at the scene ofcrime matches with DNA profile of the suspect, it can generallybe concluded that both samples have the same biological origin.DNA profile is valid and reliable, but variance in a particular resultdepends on the quality control and quality procedure in thelaboratory.”

32. It is true that PW-23 Dr. B.K. Mohapatra, Senior ScientificOfficer (Biology) of CFSL, New Delhi had stepped into the witness boxand his report regarding DNA profiling was exhibited as Ex. PW-23/A,however mere exhibiting a document, would not prove its contents. Therecord shows that all the samples relating to the accused and relating tothe deceased were seized by the Investigating Officer on 14.02.2012and 16.02.2012; and they were sent to CFSL for examination on27.02.2012. During this period, they remained in the Malkhana of thePolice Station. Under the circumstances, the possibility of tamperingwith the samples collected also could not be ruled out.Neither the TrialCourt nor the High Court has examined the underlying basis of the findings A

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Ain the DNA reports nor have they examined the fact whether thetechniques were reliably applied by the expert. In absence of suchevidence on record, all the reports with regard to the DNA profilingbecome highly vulnerable, more particularly when the collection andsealing of the samples sent for examination were also not free fromsuspicion.B33. Thus, having regard to the totality of circumstances and theevidence on record, it is difficult to hold that the prosecution had provedthe guilt of the accused by adducingcogent and clinching evidence. Asper the settled legal position, in order to sustain conviction, thecircumstances taken cumulatively should form a chain so complete thatCthere is no escape from the conclusion that within all human probability,the crime was committed by the accused only and none else. Thecircumstantial evidence must be complete and incapable of explanationof any other hypothesis than that of the guilt of the accused and suchevidence should not only be consistent with the guilt of the accused butDshould be inconsistent with his innocence. As demonstrated earlier, theevidence with regard to the arrest of the Appellants-accused, theiridentification, discoveries and recoveries of the incriminating articles,identity of the Indica Car, the seizures and sealing of the articles andcollection of samples, the medical and scientific evidence, the report of DNA profiling, the evidence with regard to the CDRs etc. were notEproved by the prosecution by leading, cogent, clinching and clear evidencemuch less unerringly pointing the guilt of the accused. The prosecutionhas to bring home the charges levelled against them beyond reasonabledoubt, which the prosecution has failed to do in the instant case,resultantly, the Court is left with no alternative but to acquit the accused,Fthough involved in a very heinous crime.It may be true that if the accusedinvolved in the heinous crime go unpunished or are acquitted, a kind ofagony and frustration may be caused to the society in general and to thefamily of the victim in particular, however the law does not permit theCourts to punish the accused on the basis of moral conviction or onsuspicion alone. No conviction should be based merely on theGapprehension of indictment or condemnation over the decision rendered.Every case has to be decided by the Courts strictly on merits and inaccordance with law without being influenced by any kind of outsidemoral pressures or otherwise.

34. The Court is constrained to make these observations as theHCourt has noticed many glaring lapses having occurred during the course

of the trial. It has been noticed from the record that out of the 49 witnessesexamined by the prosecution, 10 material witnesses were not cross-examined and many other important witnesses were not adequately cross-examined by the defence counsel. It may be reminded that Section 165of the Indian Evidence Act confers unbridled powers upon the trial courtsto put any question at any stage to the witnesses to elicit the truth. Asobserved in several decisions, the Judge is not expected to be a passiveumpire but is supposed to actively participate in the trial, and to questionthewitnesses to reach to a correct conclusion. This Courtwhile notaccepting the submission that it was improper for the Court to haveinterjected during the course of cross-examination of the witness, hadobserved in the case of State of Rajasthan vs. Anialias Hanif andOthers[4 ]thus: - “11. We are unable to appreciate the above criticism. Section165 of the Evidence Act confers vast and unrestricted powers onthe trial court to put “any question he pleases, in any form,at any time, of any witness, or of the parties, aboutany fact relevant or irrelevant” in order to discover relevantfacts. The said section was framed by lavishly studding it with theword “any” which could only have been inspired by the legislativeintent to confer unbridled power on the trial court to use the powerwhenever he deems it necessary to elicit truth. Even if any suchquestion crosses into irrelevancy the same would not transgressbeyond the contours of powers of the court. This is clear from thewords “relevant or irrelevant” in Section 165. Neither of the partieshas any right to raise objection to any such question.

12. Reticence may be good in many circumstances, but a Judgeremaining mute during trial is not an ideal situation. A taciturnJudge may be the model caricatured in public mind. But there isnothing wrong in his becoming active or dynamic during trial sothat criminal justice being the end could be achieved. Criminaltrial should not turn out to be a bout or combat between two rivalsides with the Judge performing the role only of a spectator oreven an umpire to pronounce finally who won the race. A Judgeis expected to actively participate in the trial, elicit necessarymaterials from witnesses in the appropriate context which he feelsnecessary for reaching the correct conclusion. There is nothing A

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Awhich inhibits his power to put questions to the witnesses, eitherduring chief examination or cross-examination or even during re-examination to elicit truth. The corollary of it is that if a Judge feltthat a witness has committed an error or a slip it is the duty of theJudge to ascertain whether it was so, for, to err is human and thechances of erring may accelerate under stress of nervousnessBduring cross-examination. Criminal justice is not to be founded onerroneous answers spelled out by witnesses during evidence-collecting process. It is a useful exercise for trial Judge to remainactive and alert so that errors can be minimised.

13. In this context it is apposite to quote the observations ofCChinnappa Reddy, J. in Ram Chander v. State of Haryana [(1981)3 SCC 191 : 1981 SCC (Cri) 683 : AIR 1981 SC 1036] : (SCC p.193, para 2)

“The adversary system of trial being what it is, there is anunfortunate tendency for a Judge presiding over a trial to assumeDthe role of a referee or an umpire and to allow the trial to developinto a contest between the prosecution and the defence with theinevitable distortions flowing from combative and competitiveelements entering the trial procedure. If a criminal court is to bean effective instrument in dispensing justice, the presiding JudgeEmust cease to be a spectator and a mere recording machine. Hemust become a participant in the trial by evincing intelligent activeinterest by putting questions to witnesses in order to ascertain thetruth.”

35. In the instant case, material witnesses examined by theFprosecution having not been eithercross-examined or adequatelyexamined, and the trial court also having acted as a passive umpire, wefind that the Appellants-accused were deprived of their rights to have afair trial, apart from the fact that the truth also could not be elicited bythe trial court. We leave it to the wisdom and discretion of the trialcourts to exercise their powers under Section 165 of the Indian EvidenceGAct for eliciting the truth in the cases before them, howsoever heinousor otherwise they may be.

36. Having said that and for the reasons stated above, the judgmentsand orders of conviction and sentence passed by the trial court and theHigh Court are set aside. The Appellants-accused are acquitted fromH

the charges levelled against them by giving them a benefit of doubt, andthey are directed to be set free forthwith if not required in any othercase. The appeals deserve to be allowed accordingly.

37. It is needless to say that in view of Section 357(A) Cr.PC, thefamily members of the deceased- victim would be entitled to thecompensation even though the accused have been acquitted. Hence,while allowing these appeals and acquitting the Appellants- accused, wedirect that the parents of the victim would be entitled to the compensation,if not awarded so far by the Delhi State Legal Services Authority, asmay be permissible in accordance with law.

38. In view of the above, the appeals stand allowed. All pendingapplications also stand disposed of.

39. Before parting, we place on record the valuable assistancerendered by the Amicus Curiae Ms. Sonia Mathur and the learned SeniorAdvocates and their associates appearing for the parties.

Ankit Gyan

Appeal allowed.

(Assisted by : Rahul Rathi, LCRA)

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