A DNA match is not enough where the accused was a regular visitor, Supreme Court holds

Justices Manoj Misra and Vijay Bishnoi uphold a Himachal Pradesh acquittal in a double murder, faulting an investigation that recorded witnesses to create evidence rather than collect it.

The accused's blood was found on a cabinet in the room where a woman and her young son were strangled. The Supreme Court has held that this proves only that she was in that house at some point — and since the prosecution's own case was that she visited every two or three months, it proves nothing about the night of the murders. Dismissing the State of Himachal Pradesh's appeal against her acquittal, Justices Manoj Misra and Vijay Bishnoi weighed each circumstance across sixty pages and found the chain broken throughout: the taxi driver and hotel worker who supplied the last-seen evidence appeared to have been set up to create it, the call records were obtained without tower locations, and no bequest was ever proved to support the alleged motive.

A locked house and a foul odour

On 7 September 2011 a man told the police that his daughter had been missing for six or seven days, that her house was locked, and that a foul odour was coming from it. The police entered after breaking the lock and found two bodies: the daughter and her minor son. The autopsy found homicidal death by strangulation, occurring five to seven days earlier.

The deceased woman was the second wife of a man whose first wife had died years earlier. The accused was his daughter by that first marriage, and the dead boy her half-brother. Mother and son lived at Diur; the accused lived at Chamba and visited her step-mother every two or three months. On the evening of 31 August 2011 the complainant visited the house, saw the accused there, and was told she would stay the night. The next day the doors were locked, and he assumed his daughter had gone somewhere. The prosecution's theory was that the accused killed both to grab property her father had bequeathed to the boy.

The Sessions Court at Chamba convicted her under Section 302 of the Indian Penal Code in November 2012. The High Court of Himachal Pradesh at Shimla allowed her appeal in July 2014 and set the conviction aside. The State came to the Supreme Court.

A last-seen account that changed, and a lead never followed

Everything turned first on the complainant, the dead woman's father, who was the only witness to place the accused at the house that evening. In court he deposed that he had seen the accused talking to his grandson there. In his earlier statement to the police he had said something materially different: that he had enquired from outside the house who would be staying with his daughter that night, and that she had answered from inside that the accused would. The discrepancy, the Court held, showed an improvement on his earlier account, and on his testimony alone it would be unsafe to hold that the accused was with the deceased that evening. Corroboration therefore had to be found elsewhere.

Other features of his evidence deepened the doubt. He admitted in cross-examination that of the four rooms in the house, his daughter had given one to him and his wife — so he lived in close proximity. Yet he stayed silent for six or seven days although he knew from the very next morning that the house was locked. His explanation, that he assumed she had gone to Mani Mahesh, appeared nowhere in his previous statement.

And there was a line of inquiry the police never pursued. His daughter-in-law had told him that two men had been asking about the deceased's properties a few days before her death, and he said the same two had come to his shop at about six in the evening and had then gone on to the deceased's house. The High Court held that this ought to have been thoroughly investigated, because the involvement of third parties could not be excluded. Taken with the rest, the Supreme Court held the prosecution case appeared contrived, and that the High Court's view that the complainant was unreliable could not be faulted.

Collecting evidence, and creating it

The prosecution's last-seen case rested on three witnesses: the complainant, a taxi driver who said he had driven the accused from Chamba to Diur that evening and back late at night to a hotel at Chamba and had noticed a bleeding injury on her hand, and a hotel worker who said he saw her there that night.

The Court's treatment of the latter two is the heart of the judgment. It began from a proposition it called well settled: the role of an investigating officer is to collect evidence and not to create it. Where there is no occasion for the officer to record a person's statement, and no reason for that person to bring the information to the police, and the officer records it anyway without explaining why he thought it necessary, a serious doubt arises whether the witness has been set up.

The Bench was careful to mark the legitimate case. An officer may properly pick up a clue from one statement to record another — if, after recording A, he learns that B may know something relevant, recording B is entirely bona fide. The difficulty arises where he records B straightaway, with no palpable reason to believe B has relevant information and no reason for B to come forward unprompted. Ordinarily evidence is collected from those present at the scene, those likely to know of the crime, those connected to the victim or the named accused, those identified through call records, or those thrown up by a disclosure statement. Where a person does not even know that what he knows incriminates anyone, he is unlikely to report it, so what propelled the officer to record him becomes important, and failure to explain may dent that witness's credibility.

Measured against that, the investigation failed. The investigating officer ducked the question of when he recorded the two witnesses and offered no explanation of what prompted him. He did not say the accused's disclosure statement mentioned travelling by taxi or staying at a hotel — only that she could get the keys and a mobile recovered. The complainant never said he had seen her arrive by taxi. And travelling in a taxi or staying at a hotel is not in itself incriminating, so the chance of the driver going to the police of his own accord was remote. Their statements, the Court concluded, appear to have been recorded only to create evidence.

The driver's own cross-examination sharpened it. He said the police contacted him about nine or ten days later, called him to the station, and that a senior officer asked whether he knew the accused — who was present in court. His statement was therefore recorded after the arrest, by which time the police had seen the injury on her hand and held the hospital slip recording its date, and so had the opportunity to weave a story about a bleeding thumb carried from the scene of the crime. Why he was called to the station at all, the Court said, remains a mystery.

Two further reasons told against him. The High Court had noted that although he described a bleeding injury and giving first aid, he saw no blood spilled in his vehicle; the Supreme Court thought that insufficient on its own but an added reason to doubt him. And if the accused had hired a taxi from Chamba to Diur, there was no need for her to stay overnight in a Chamba hotel rather than go home. As for the hotel worker, he admitted that no record of her stay was given to the police — and hotels are required in the ordinary course to maintain a guest register. Both were held untrustworthy and unable to corroborate the complainant, who had himself improved on his earlier statement and was not wholly reliable.

Call records without a tower

The investigating officer had the mobile numbers of both the deceased and the accused, and both sets of call records formed part of the police papers. Only one was proved in court; the deceased's was never exhibited. More importantly, neither disclosed the tower location of the phones.

That lapse mattered twice over. Tower data would have helped establish whether the deceased died on the date and at the time the prosecution asserted or at some later point, and whether the accused and the deceased were in one place at any given moment. Its absence, combined with the failure to exhibit one record at all, created the impression that the prosecution was suppressing vital information. It also undercut the recovery of the keys and the deceased's mobile at the accused's instance, which the Court held did not inspire confidence. Nor was it proved beyond reasonable doubt that the lock produced in court was the lock that had been on the door.

The DNA, and what it could carry

The forensic report concluded that the profile from the accused's liquid and dried blood samples completely matched the profile from dried blood scraped from a trunk in the room and from a cotton thread used to lift blood from it.

The Court recorded misgivings about how that came to be the only surviving sample. Every other sample had disintegrated save the scrape from the cabinet and the thread lift from the same place; the control sample from the cabinet was never sent for examination; and if all the stains were collected at about the same time, the disintegration of every one but this puzzled the Bench. The author of the report was not called for cross-examination, and the defence made little effort to show the seals had been tampered with. In those circumstances, the Court said, though it had questions in its mind, it had no option but to accept the report as it stood.

What the report could then prove was the real question, and the answer was: much less than the State needed. The presence of the accused's blood in the room shows at best that she was present there at some point in time. It does not show she was present on 31 August 2011, or on any particular date. The prosecution's own case was that she had been visiting the house regularly, so the possibility of an earlier injury spilling blood on the cabinet could not be ruled out. And the decisive absence: her blood was not found on the clothes of either deceased, nor on the cloth with which they were allegedly strangled. Even accepted as proved, the circumstance was not conclusive of her being the perpetrator.

The injury on her thumb went the same way. It existed, and she had it stitched on 1 September 2011. But she explained it — crushed in a car door while travelling to Mani Mahesh — led a defence witness on that travel, and had voluntarily handed the hospital slip to the police herself. With the taxi driver and hotel worker discarded, the injury carried little weight.

A motive with no bequest behind it

On motive the Court restated the rule: in circumstantial cases a strong motive lends credence to the prosecution, and absence of motive is not by itself fatal; but where the other circumstances are inconclusive or lack probative value, the absence of motive becomes an important reason to give the accused the benefit of doubt.

Here the asserted motive was that the accused resented her father having bequeathed his property to her half-brother. No evidence came on record that any such bequest existed. And the arithmetic defeated the theory in any case: the father had five daughters by his first wife, so removing the half-brother would have benefited all of them, not the accused alone. There was, the Court held, no strong motive to commit the crime.

Order

Summarising, the Bench held that although the deaths were homicidal, it was not proved beyond doubt that they occurred on the night of 31 August; the medical evidence did not rule out death a day or two later. The accused's presence in the house on 31 August was not proved beyond reasonable doubt, the complainant being not wholly reliable and the two corroborating witnesses not credible. It was not proved that the lock produced in court was the lock from the door. The recovery of the keys and the mobile did not inspire confidence, given the investigative lapse over the call records. The DNA match was not conclusive, because the accused had been a regular visitor and her blood was absent from the clothes and the ligature. And the suppression of the deceased's call record and tower location created the impression of vital information being withheld.

In short, neither were the incriminating circumstances proved beyond reasonable doubt, nor did they form a chain complete enough to exclude every hypothesis consistent with innocence and point conclusively to the accused and no one else as the person who, in all human probability, committed the murders.

The Court held without hesitation that the prosecution had failed to bring home the charge, found no reason to interfere with the High Court's decision, and dismissed the appeal. Pending applications were disposed of.