Three DNA matches settled who did it. The question the trial court never answered was whether they had to die for it

The Gauhati High Court affirms the conviction of three men for the rape and murder of two minor girls, and declines to confirm the death sentence — because the prosecution led no evidence at all on whether they could be reformed.

A death sentence passed by a trial court does not take effect by itself. It has to be confirmed by the High Court, and the reference that brings it there is not an appeal by anybody — it is a statutory requirement that a second court look at the whole case before a life is ended by the State. The convicts may appeal as well, and usually do, but the reference would come up even if they did not.

Criminal Appeal No. 86 of 2022 and Death Sentence Reference No. 1 of 2022 came before the Gauhati High Court together, both arising from the judgment of the Special Judge (POCSO), Kokrajhar dated 8 April 2022 in Special Case No. 32 of 2021. A Bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury heard them as one, and delivered judgment on 24 September 2026, the opinion written by Justice Choudhury.

The conviction was affirmed. The death sentence was not confirmed. The two halves of that result rest on different kinds of failure — one by the defence, one by the prosecution — and the judgment is worth reading for the clarity with which it separates them.

Two girls, a jungle, and a scene arranged to look like something else

On 11 June 2021 two minor girls, aged about 14 and 16 and both from the same family, were found hanging from a tree inside the Singimari jungle in Kokrajhar district. The Court refers to them throughout as V-1 and V-2, and this report does the same.

The village headman informed the police. A general diary entry was made, the bodies were brought down in the presence of local witnesses, and an unnatural death case was registered. On that footing, what the police had was two apparent suicides.

The charges the Special Judge convicted on were the full set the facts attracted: Sections 376D, 376DA, 376A, 120B and 302 of the Indian Penal Code — gang rape, gang rape of a woman under sixteen, death caused in the course of rape, criminal conspiracy and murder — read with Section 6 of the Protection of Children from Sexual Offences Act for aggravated penetrative sexual assault, and with Sections 3(1)(w)(i) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Mr. Azad Ahmed appeared with Mr. A.M. Ahmed and Mr. Arif Ahmed for the appellants; Ms. B. Bhuyan, Senior Advocate and Additional Public Prosecutor for Assam, assisted by Ms. R. Saloi, appeared for the State in both matters. Judgment was reserved on 10 September 2026.

The post-mortem said otherwise, and the medical evidence is the first pillar of the case. PW-11, one of the doctors on the post-mortem team, deposed that the deaths were caused by asphyxia resulting from ante-mortem manual strangulation and were homicidal in nature. The report disclosed injuries over the neck, including contusions and a fracture of the thyroid cartilage. The ligature marks were attributable to peri-mortem hanging.

That last finding is the one that changes the character of the case. The hanging was not the cause of death; it happened in connection with or after the homicidal act. Somebody strangled the girls and then put their bodies in a tree.

The same medical evidence disclosed injuries to the private parts, with findings suggesting recent sexual intercourse. Vaginal smears were positive for spermatozoa. The medical opinion recorded forcible vaginal and anal penetration. The relevant swabs and articles of clothing were collected, sealed and sent for forensic examination.

In cross-examination the defence established that the doctor could not identify the precise material used for strangulation, could not say which victim died first or the interval between the deaths, and accepted that asphyxia can also occur in suicidal hanging. The Bench held that these answers did not dent his substantive opinion on the nature of the injuries; the opinion that the deaths resulted from ante-mortem manual strangulation and were homicidal remained firm. Two other doctors from the same team, PW-12 and PW-13, both of the forensic medicine department at FAAMCH, Barpeta, concurred, and nothing adverse was elicited from either.

Before reaching the science, the Bench worked through the lay witnesses and said plainly what each could and could not carry. PW-6, a family member, deposed that she returned from the field at about 3 pm to find both girls gone, was told they had left to fetch the cows, and later went to the Singimari jungle on hearing that something had happened and saw them hanging from a tree. PW-7 and PW-8 also reached the spot on being informed and saw the bodies. Their evidence established the disappearance and the discovery — and nothing about the identity of the perpetrators. PW-2 had seen the two girls heading towards the Singimari jungle at about 2.30 pm, and PW-26 had seen them alive that day, told by them that they were going to fetch the cows; nothing adverse was extracted from either in cross-examination.

The investigating side fared no better as substantive proof. PW-38, the Sub-Inspector posted as Second Officer at Kokrajhar police station that day, deposed to the investigative steps, and in cross-examination admitted omissions in the statements he had recorded. The Bench held that his evidence did not constitute substantive evidence of the occurrence at all; it established the course of the investigation.

So two facts stood proved beyond reasonable doubt: the deaths were homicidal by manual strangulation, and the victims had been subjected to forcible sexual intercourse before death. What the medical evidence could not supply, by its nature, was who.

What the forensic report actually established

PW-16, a Scientific Officer at the Directorate of Forensic Science, Assam, deposed to the DNA work. The exhibits received included the vaginal and anal swabs of both deceased girls and the semen and blood samples of the accused. The report of 13 August 2021 recorded that DNA was isolated by organic extraction and subjected to a multiplex PCR reaction for sixteen STR loci, alleles and amelogenin using the AmpFLSTR Identifiler Plus Kit, the amplified products analysed on a genetic analyser with GeneMapper IDX 1.2 software.

Three matches followed. The vaginal swab of V-1 matched the semen and blood samples of Nasibul Ali Sk. The anal swab of V-1 matched the samples of Muzammel Sk. The vaginal swab of V-2 matched the samples of Forizul Rahman.

The Bench was careful about why this mattered. This was not a case, it said, where a biological sample was merely found at the place of occurrence and said to be compatible with an accused. The report established a specific correspondence between biological material recovered from the bodies of the victims and the reference samples of individual accused persons. It further recorded that the profiles from the victim swabs did not match the reference samples of the other persons whose samples were examined — so the report gave both a positive association and the absence of a corresponding profile in the others tested.

And it fitted the medical findings exactly. The medical evidence established forcible vaginal and anal intercourse and the injuries from it; the forensic examination identified the material recovered from those swabs with the profiles of the accused. In the Court’s phrase, the DNA evidence supplied the missing identity that the medical evidence could not provide.

The Bench also accepted, expressly, the limits counsel for the appellants urged. A DNA report does not establish every aspect of a prosecution narrative — not the sequence of events, not the precise time of the assault, not the manner of the killing, and not, from the result alone, that each accused participated in every act alleged. Its value lies in the specific biological links it establishes, and those links have to be read with the remaining circumstances.

The chain-of-custody challenge, and why it failed

The defence attacked collection, preservation and transmission. PW-10 accepted that although the vials were sterile, the ice container used for preservation was not, and that the requisition did not specify the required sample quantity. PW-14 said that if the glass container were not sterile, contamination could occur, and that while consent of the accused was taken before collection he could not say whether written consent had been obtained.

The Bench held that these answers required consideration — and then drew the distinction that decided the point. Neither witness said that the particular samples collected were actually contaminated. There was no evidence of substitution, tampering or interference. The evidence spoke only to the possibility of contamination where proper precautions are not followed; it did not establish that contamination had occurred in the samples ultimately examined.

The Court therefore declined to discard the DNA evidence merely because questions were raised about the ideal manner of preservation, or because the expert fairly accepted the general possibility of degradation. Its task was to examine whether those possibilities had been established, and on meticulous scrutiny it found none.

The Bench was equally willing to discard prosecution material that did not survive the same scrutiny. On call detail records and tower location data, it accepted the witness’s own position that a tower location indicates where a mobile device connected, not where a person was, and declined to treat the CDR evidence as decisive, giving it only corroborative value. On the alleged confessional statements and recoveries, it held that because the accused were already in police custody when taken to the places of recovery, the statements could not be used as confessions of guilt, and their value was confined to the portion admissible under Section 27 of the Evidence Act that distinctly related to the fact discovered. The evidence of the many formal witnesses — to seizure, inquest, transport of bodies, videography of the scene recreation — was used only to prove the investigative steps and exhibits, none of them having witnessed the occurrence.

The chain, assembled

The Bench then took the established circumstances cumulatively. The girls were last seen alive around 4 to 4.30 pm on the day of occurrence, having said they were going to fetch the cows, and their bodies were found hanging in the Singimari forest. The medical evidence established homicidal death by ante-mortem manual strangulation and forcible sexual intercourse. The three accused were established to have been seen in the same jungle at around 4 to 4.30 pm that day. And the forensic evidence established the three specific biological links.

The Court set the settled rule against those facts: in a case on circumstantial evidence, each circumstance must be firmly established, and the circumstances taken cumulatively must form a complete chain pointing to guilt and inconsistent with innocence; a circumstance that merely creates suspicion cannot substitute for proof.

Here, it held, the principal incriminating circumstance was not suspicion or an inference from mere presence. It was the scientifically established biological linkage. Presence in the vicinity, the Bench noted, is comparatively weak in isolation — the decisive connecting circumstance was the forensic evidence, independently supported by the medical findings and by the evidence of the accused being in the area. The defence suggestion that some other person could have committed the offence did not account for three specific DNA matches coupled with the presence of all three accused, and no plausible innocent explanation was offered for the presence of their biological material in the swabs.

The chain was complete. The conviction was affirmed.

Why the death sentence was not confirmed

On sentence, the Bench began by agreeing with the trial court about the crime. It had no doubt that the offence proved was extremely grave: two minor girls sexually assaulted and then killed by strangulation, with the subsequent hanging of their bodies demonstrating an attempt to give the deaths the appearance of suicide.

But gravity, it said, is only one part of the sentencing exercise. The law requires a court to consider the circumstances of the crime and those of the criminal. Life imprisonment remains the normal rule; death is an exceptional punishment, to be imposed only where the alternative is unquestionably foreclosed.

Examined from that perspective, the record was empty on the side that mattered. The prosecution had brought no material demonstrating that the appellants were beyond the possibility of reformation or rehabilitation. There was no evidence about their conduct in custody, their antecedents, their family circumstances, their age, or anything else that would establish that life imprisonment would be wholly inadequate. And the Bench refused to fill the gap by inference: it could not conclude that the possibility of reformation was foreclosed merely by the brutality of the crime.

The sentencing exercise, it held, must be based on evidence and not on conjecture — and the material before it did not permit the conclusion the trial court had reached.

That left the Court needing a sentence that reflected the exceptional gravity without imposing death. It found the answer in Union of India v. Sriharan @ Murugan, (2016) 7 SCC 1, where a Constitution Bench recognised a constitutional court’s power to impose a special category of life imprisonment outside the ordinary remission framework — an alternative lying between ordinary life imprisonment and capital punishment. Sitting in appellate and constitutional jurisdiction over a Death Sentence Reference, the Bench held itself competent to mould the sentence accordingly.

The order

The conviction under the judgment of the Special Judge (POCSO), Kokrajhar was affirmed. The Death Sentence Reference was answered in the negative and the death sentence was not confirmed. The sentence of death was set aside and substituted by imprisonment for life for the remainder of the appellants’ natural lives, without ordinary remission or commutation, subject to the constitutional powers under Articles 72 and 161. The appeal was allowed in part to that extent, and the trial court record ordered returned.

The shape of the judgment is worth holding on to. The defence lost on conviction because its attack on the forensic evidence established a possibility and not a fact, and the Court insisted on the difference. The prosecution lost on sentence for the mirror-image reason: it asked for the irreversible punishment on the gravity of the offence alone, having led nothing about the men it wanted executed. Both halves apply the same discipline, which is that a court decides on what is proved rather than on what can be supposed — and on the sentencing side, that discipline is what stands between the record as it exists and a sentence that cannot be taken back.