‘Suspicion Can’t Replace Proof’: Supreme Court Acquits 3 in 2007 Murder of 10-Year-Old Boy

A bench of Justices M M Sundresh and Satish Chandra Sharma allowed the appeals filed by the three men against the Uttarakhand High Court's 2017 judgment. The high court had affirmed the 2014 verdict of the Additional Sessions Judge, Kashipur, which convicted them and awarded them life imprisonment for the killing, a matter arising out of a case of strangulation murder.

The minor boy died by strangulation on June 5, 2007, when he had gone to his family's mango orchard near Kishanpur to stand guard. The deceased boy's father initially expressed suspicion against six co-villagers with whom he had a long-standing enmity: Wahid, Muslim, Arman, Jahangir, Zahid, and Babu. Notably, two of the three appellants, Nazim and Aftab, were not named in the initial First Information Report (FIR) and were implicated only in the charge sheet.

The trial court acquitted five of the accused namely Wahid, Muslim, Jahangir, Zahid, and Babu, of all charges. However, it held the present appellants guilty, primarily relying on the testimony of the FIR’s scribe. This witness claimed to have overheard the accused persons conspiring on the night of June 04, 2007, to avenge an affront to their family's honour, alleging that a member of the victim's family had teased their sister. The high court found no infirmities in the trial court's findings and dismissed the appeals of the convicted men.

Examining the appeal, the apex court found that "the evidence on record could in no fathomable circumstance complete the chain of circumstances pointing to the guilt of the accused persons".

Court highlighted substantial gaps in the prosecution's case. "The first and most glaring circumstance is the omission of the names of Nazim and Aftab in the FIR. The complainant and the father of the deceased, expressly named six persons with whom he admittedly had long-standing enmity, yet he did not attribute any role to the present appellants, Nazim and Aftab," the court observed.

The bench held that this significant omission "struck at the root of the prosecution narrative, undermined its credibility, and constituted a material fact that had to weigh heavily in favour of the accused".

Court noted that the high court had acknowledged the omission but "brushed it aside as inconsequential". The bench deemed this approach "untenable" and stated, "In a case based solely on circumstantial evidence, every circumstance must withstand rigorous scrutiny. The failure to name two of the three appellants in the FIR, despite the complainant’s familiarity with them, casts a serious shadow on the subsequent attempt to implicate them. It raises a legitimate inference that their names were introduced at a later stage, thereby suggesting the possibility of false implication".

The bench also doubted the veracity of the first link of circumstantial evidence, which was the testimony of Tauhid Ali, the witness who claimed to have overheard the conspiracy to commit murder to avenge the alleged insult caused when Shamshad, the complainant’s nephew, teased their sister at a marriage reception.

"His explanation that he did not take the conversation seriously because of pre-existing enmity between Wahid Ali and Nanhe Khan’s families, and therefore assumed it was 'loose talk' is unconvincing," the bench said.

It noted that if he "had overheard an open and categorical threat to commit murder, it was inexplicable that he suppressed it from the complainant, from the police, and even from the FIR that he himself scribed".

Court opined that his testimony about overhearing such a grave conspiracy discussed publicly in a marriage feast, with several villagers and guests present "appeared inherently improbable and lacked plausibility".

Holding that "conspiracies to commit homicide are rarely, if ever, hatched so loudly and publicly as to be overheard by passers-by," the bench said the belated revelation, made for the first time during the trial, "bore all the hallmarks of an afterthought".

The bench also found serious infirmities in the "last-seen" evidence and noted that the identification of the appellants by two prosecution witnesses "could not be accepted with confidence".

The bench observed, "Even apart from the deficiencies in identification, the ‘last-seen’ theory is itself a weak link unless the prosecution establishes a narrow time gap between when the accused and the deceased were seen together and the recovery of the body, such that the possibility of intervention by a third person is excluded".

In the present case, the court said, the prosecution’s reliance on the last-seen theory was misplaced. One prosecution witness claimed to have seen the deceased conversing with Nazim around 11:00 a.m. on June 05, 2007, while another claimed to have seen Nazim, Aftab, and Arman walking together in the evening. As the body was recovered only the next morning, the court held, "The interval between the alleged sightings and the discovery of the corpse is too wide to exclude the possibility of intervention by others".

The bench concluded that "the last-seen evidence in this case, therefore, failed to meet the threshold laid down by this court. It neither rules out alternative hypotheses nor completes the chain of circumstances, and instead leaves wide gaps inconsistent with conviction".

Further, court found that the only available scientific evidence was "neutral" as it neither connected the appellants to the crime nor corroborated the oral testimony. The bench noted that despite the inconclusive forensic report, the high court dismissed the absence of DNA evidence as inconsequential and affirmed the conviction "solely on ocular testimony".

The bench stated, "Such an approach is untenable in a case based entirely on circumstantial evidence. Where scientific evidence is neutral or exculpatory, courts must give it due weight. To convict on doubtful testimony while ignoring scientific tests is to substitute suspicion for proof. The Supreme Court has repeatedly cautioned that suspicion, however strong, cannot replace evidence".

In summary, court held that the medical evidence proved the fact of homicidal death but did not implicate the appellants.

The bench concluded, "The forensic report is neutral, the recovery is procedurally suspect, and the High Court failed to grapple with these deficiencies. When the only scientific evidence available neither supports the prosecution’s narrative nor connects the accused to the crime, it is impermissible to uphold a conviction solely on doubtful eyewitness testimony".

Court also held that the motive was speculative and that there was no evidence that the appellants bore any grudge against a ten-year-old child. The court pointed out that the motive alleged by the prosecution was only that the appellants sought revenge for an insult to their sister, but no concrete evidence of animus was led. Court emphasised that "the absence of motive in a circumstantial case assumes significance and tilts the balance in favour of the accused."

The appellants had also relied on school records and a medical board report to claim that Nazim and Aftab were minors at the time of the incident, a claim which the Juvenile Justice Board dismissed based on an electoral roll.

Court pointed out that Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 gives primacy to matriculation or equivalent school certificates, or, in their absence, a birth certificate or medical opinion.

The bench stated, "We certainly do not find it necessary to decide this issue in view of our conclusion on merits, however, the summary rejection of the juvenility plea reinforces the overall perception that the High Court did not fully re-appreciate the evidence.