The recovered bones were male; the victim was a girl: Supreme Court acquits man jailed for life

Justices Ujjal Bhuyan and Atul S. Chandurkar quash a life sentence affirmed by the Sikkim High Court, finding the chain of circumstantial evidence broken at every link.

A man convicted of raping and killing his young niece in Sikkim, sentenced to life imprisonment in 2016 and kept there through an appeal the High Court dismissed, has been acquitted by the Supreme Court. The body was never found. The prosecution relied on six circumstances, and the Court examined each separately: the witnesses were unsure he was ever last seen with the child; the recovery was from a spot cattle herders visited; the forensic laboratory could not say whether blood on a shawl was even human; and the DNA report on the bones recovered at his instance found them to be of male origin, when the victim was a girl. Justices Ujjal Bhuyan and Atul S. Chandurkar held the chain was broken at various places and the guilt not established beyond reasonable doubt.

A child missing in 2013, an FIR in 2014

On the morning of 6 November 2013 the appellant was sent by his mother to buy vegetables. He asked his maternal niece to come along, and the child's grandmother — the complainant in the case — did not permit it. The prosecution case is that he took the child anyway. When neither returned, the grandmother searched for them and told the child's mother she was missing.

A missing report was lodged at Rongli police station on 12 November 2013, naming both the child and her maternal uncle. He was traced at Siliguri much later. The FIR, dated 13 May 2014, records that while being brought back from Siliguri he stated he had raped the child and then throttled her to death on 6 November 2013. He was charged under Sections 376(2)(i), 302 and 201 of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, denied the charge, and was tried. Sixteen witnesses were examined. The Sessions Court convicted him on 20 April 2016 and sentenced him to life imprisonment; the High Court of Sikkim, re-appreciating the entire evidence, affirmed.

Ms Sangeeta Kumar, for the appellant, argued that the circumstances were insufficient, that the witnesses were not confident about the last-seen evidence, that the delay between the missing report of November 2013 and the FIR of May 2014 was unexplained, that the recovery was doubtful because the articles were unrelated to the child and the spot was frequented by the public, and that the forensic and DNA reports did not support the prosecution. Mr Sameer Abhyankar, for the State, submitted that in the absence of an eye-witness the prosecution was entitled to rely on clinching circumstances, that each pointed only to the appellant, that his answers under Section 313 failed to explain them, and that two courts had concurrently found him guilty.

The warning the Court began with

Before assessing the material, the Bench set out the rule from Hanumant v. State of Madhya Pradesh, a three-judge decision, including the warning it quotes from an English judge to a jury: that the mind is apt to take pleasure in adapting circumstances to one another, and even in straining them a little to force them to form parts of one connected whole — and that the more ingenious the mind, the more likely it is to overreach itself, to supply some little link that is wanting and to take for granted a fact consistent with its previous theory.

The circumstances from which guilt is to be drawn must first be fully established, must be consistent only with the hypothesis of guilt, must be conclusive in nature, and must exclude every hypothesis but the one proposed, leaving no reasonable ground for a conclusion consistent with innocence.

Taking the six circumstances one at a time

The prosecution's chain had six links: that the appellant was last seen with the child; the recovery of articles on discovery under Section 27 of the Evidence Act; the DNA report on bones and teeth recovered at his instance; the forensic laboratory report on articles from the place of occurrence; a brown shawl said to have been used after the killing; and his silence under Section 313 of the Code.

Last seen. The grandmother said in cross-examination that after she began her household chores she did not notice whether the appellant and the child left together or separately, and that two other people from the village had visited the house that day. She did not suspect him of killing the child. The head constable posted in the village admitted there was no witness who had seen the appellant taking the child from the house, none who had seen him missing from the village, and no complaint that he was missing. The child's mother admitted she could not say whether her daughter had gone with those two villagers. The investigating officer admitted no person had seen the accused take the child away.

The Court added the element of time. The child was last said to have been seen on 6 November 2013; her body was never traced; and the bones and teeth were discovered only on 15 May 2014, six months later. Applying State of U.P. v. Satish, it recorded that the last-seen theory operates where the gap between the two is so small that the possibility of anyone other than the accused being the author of the crime becomes impossible, and that where the gap is long and others may have come in between, it is hazardous to conclude guilt.

The recovery. On 15 May 2014, at the appellant's instance and on a memorandum, clothes said to be the child's and other articles were discovered and seized. But one witness to the recovery accepted in cross-examination that there was an old road and a footpath used by cattle herders collecting fodder, that the spot was not thick jungle, that people collecting fodder visited the area, and that the spot could easily be seen by anyone who went there. A second recovery witness said the same. The grandmother added that a water channel ran nearby which people came to repair when it was blocked.

The Court applied the caution in State of Himachal Pradesh v. Jeet Singh, which holds it a fallacy that recovery from a place open or accessible to others vitiates evidence under Section 27 — anything can be concealed in an accessible place, and until it is disinterred its hidden state remains unhampered. The crucial question is not accessibility but whether the place was ordinarily visible to others. Here it was, so the reliability of the recovery had to be examined with care.

The DNA report. This is where the prosecution case failed most plainly. The items seized at the appellant's instance, including two pieces of bone and a bunch of black hair, went for DNA analysis. The report of 27 November 2014 concluded that the two pieces of bone were of human male origin and were not biologically related to the blood samples of the child's mother and sister, and that autosomal analysis was not possible from the hair. The victim was female; the bones were male, and so naturally did not match her relatives' samples.

The medico-legal specialist who examined the specimens admitted he had not stated in his report whether three suspected flat bones were human or animal, could not say whether a tooth was human, and was not sure whether a piece of nail was a nail or a piece of wood. The investigating officer admitted he could not say whether the bones and teeth belonged to the child. The prosecution, the Court held, had simply not established that what was recovered was the victim at all, and the report could not be a circumstance against the appellant.

The laboratory report. The analyst reported that she could not ascertain whether dried blood on the brown shawl was human or animal, could not ascertain the age of scalp hair found on the shawl or of other strands, and could not detect human remains in the soil sample. That report took the prosecution no further.

The brown shawl. The prosecution case was that the appellant had taken a brown shawl from his family's house, laid the child on it and covered her with his black jacket. The grandmother could not identify the shawl shown to her in court and did not know whose it was. The investigating officer admitted the shawl did not belong to the appellant's mother although the appellant had said it did, and that he had found no witness who saw the accused going to fetch it. Its origin and blood group could not be detected.

Silence that was not silence

The sixth circumstance was the appellant's statement under Section 313. Reading it whole, the Court found no failure on his part to explain any incriminating circumstance. He accepted that the grandmother had not permitted him to take the child, and that he had stood near the house while she stood by the door, but said he had gone to the shop alone. He accepted being at another witness's residence at about one o'clock that day and being heavily drunk. He said he had been falsely implicated at that witness's behest, was innocent, and had been arrested on suspicion.

The Court restated the law on what such a statement can do. Only where an accused fails to offer a reasonable explanation does his answer supply an additional link in a chain of circumstances already proved; it does not shift the burden of proof — a position taken from State of Rajasthan v. Kashi Ram, which the State itself had relied on. Drawing on Raj Kumar Singh v. State of Rajasthan, it recorded that a Section 313 statement is recorded to satisfy natural justice, cannot be made the basis of conviction, cannot be used to fill gaps left by prosecution witnesses, is not substantive evidence because it is not on oath, and that an adverse inference may be drawn only where the incriminating material stands fully established and is left unexplained, the accused having a right to remain silent.

Since the chain here was incomplete and did not inspire confidence, his answers could not be turned into a circumstance against him.

Order

Taken together, the Court held the prosecution evidence woefully short of pointing to the appellant's guilt. The witnesses were unsure whether he was last seen with the child. The discovery was from a place ordinarily visible to others. The DNA report in clear terms showed the bone extracts to be of male origin while the victim was female. The laboratory report advanced nothing. A doubt hung over the shawl. And the Section 313 statement could not serve as an additional link. The chain of circumstances had not been formed at all.

The Sessions Court, the Bench held, failed to notice material factors that were squarely on the record, and erred in convicting on circumstantial evidence; the High Court too failed to notice the infirmities. The Court recorded that the child met an unfortunate end, but said it would hardly be justifiable to convict the appellant for it when none of the circumstances pointed to his involvement, and he had to be given the benefit of doubt.

The judgment of the Sessions Court, as affirmed by the High Court, was quashed and set aside. The appellant was acquitted of the offences for which he was tried and convicted, and directed to be set free forthwith if not required in any other case. The appeal was allowed in those terms.