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Synopsis

The Supreme Court recently acquitted a man, who was awarded death penalty for rape and murder of a minor girl in Uttarakhand's Kashipur in 2016. Court rejected DNA/FSL reports in view of procedural irregularities and nonexamination of a scientific expert, which proved fatal to the case. 

A bench of Justices Vikram Nath, Sanjay Karol, and Sandeep Mehta also disbelieved the circumstance of the ‘last seen’ and discarded ‘confessional statement’, while setting free Karandeep Sharma alias Razia alias Raju.

In order to make the DNA report acceptable, reliable, and admissible, the prosecution would first be required to prove the sanctity and chain of custody of the samples/articles right from the time of their preparation/collection till the time they reached the FSL. For this purpose, the link evidence would have to be established by examining the concerned witness, the bench said.

In the case, the bench said, the very procedure of collection and forwarding of DNA samples to the FSL was full of lacunae and loopholes.

The trial court in 2017 sentenced the man to capital punishment for two offences under Sections 376A and 302 of the IPC. The high court by its judgment in 2018, dismissed the appeal preferred by the appellant and answered the reference in the affirmative thereby confirming the penalty of death sentence awarded to the appellant by the trial court.

According to the prosecution, the child-victim went missing from a Jagran function which was organised in the village Fasiyapura on the intervening night of June 25-26, 2016. The father of the victim lodged an FIR that his daughter had gone missing from the Jagran function. During the search operations, someone told him that the body of a girl child was lying in a nearby field.   

The appellant's counsel contended that the entire prosecution case was based on circumstantial evidence, which was purely conjectural and untrustworthy. There was no tangible evidence on record to connect the appellant with the crime. He also said the evidence of the witnesses of last seen circumstance, was totally unreliable. Further, the DNA report could not be read in evidence because the expert who conducted the DNA examination was not examined by the prosecution at the trial.

The counsel further submitted that the confession of the appellant was extracted under threat, duress and coercion and that was why neither the trial court nor the high court relied upon it.     

The state counsel, on the contrary, urged that the material prosecution witnesses had given unimpeachable testimony alleging that the child-victim was last seen in the company of the appellant on the night of the incident, whereafter she was not seen alive. He said the DNA expert’s report conclusively established that the DNA obtained from the t-shirt of the appellant matched with the DNA obtained from the blood sample of the child-victim. 

Examining the matter, the court found that the confession seemed to have been extracted under duress and could not be termed voluntary, the prosecution was, thus, left with the testimony of the witnesses of the last seen theory and the DNA/FSL report in its endeavour to bring home the guilt of the appellant.

Before discussing the evidence of the prosecution witnesses, the bench noted that the present case was yet another classic example of undue haste resulting in denial of proper opportunity to the accused to be tried in a just and fair manner. On none of the dates fixed by the trial court, right up to the framing of charges and summoning of the witnesses, did the court make any endeavour to provide legal aid counsel to the appellant despite noting the fact that he remained unrepresented throughout the said proceedings.

The court noted the recording of the evidence of prosecution witnesses began on the very same day, i.e., January 11, 2017, and the process was concluded within 27 days, i.e., on February 6, 2017. 

During this short period, the amicus curiae appointed to defend the appellant was changed on January 31, 2017. In view of these sequence of events, there was no possibility that the defense counsel could have had a reasonable opportunity to prepare the matter and conduct the cross-examination from the witnesses. 

" Thus, it is established beyond the pale of doubt that the trial was not conducted in a fair manner and that the appellant was not provided with a reasonable opportunity to defend himself," the bench said.        

In the evidence, the bench noted, surprisingly, the FIR gave no indication whatsoever that anyone had seen the child-victim in the company of the appellant, who operated the sound and light at the Jagran function. The witnesses of the last seen theory claimed to be present at the spot where the dead body was found but none of them divulged to the police officials who reached the spot that he/she had seen the child-victim and the accused-appellant moving together.

"If at all, there was an iota of truth in this version of the witnesses of last seen theory, then there was no reason as to why they kept silent and failed to give this vital information to the police officers who arrived at the spot to investigate the matter in the early morning hours of June 26, 2016. Manifestly, going by the evidence of the Investigating Officer, no witness came forward with this theory till June 27, 2016," the bench said.

The FIR does not contain a whisper that anyone from the village had seen the child-victim in the company of the appellant, any time prior to her dead body being found, it said.

"Hence, in our considered opinion, the conduct of these witnesses in remaining silent and not disclosing to the police regarding they having seen the appellant taking away the child-victim with himself, completely demolishes the prosecution case regarding the theory of last seen," the bench said.

With regard to DNA report, the bench said, the first flaw in the prosecution case on the aspect of DNA profiling was that the expert who conducted the DNA examination was not examined in evidence and the DNA report was merely exhibited in evidence by the Investigating Officer who undeniably is not connected with the report in any manner.

Referring to Rahul Vs State of Delhi, Ministry of Home Affairs & Anr (2023), while dealing with the issue concerning evidentiary value of DNA report, the bench pointed out, the top court has held that DNA profiling reports cannot be admitted in evidence ipso facto by virtue of Section 293 CrPC and it is necessary for the prosecution to prove that the techniques of DNA profiling were reliably applied by the expert.

"Thus, in the facts and circumstances of the present case, non-examination of the scientific expert who carried out the DNA profiling is fatal, and the DNA report cannot be admitted in evidence," the bench said.

The court also pointed out that from the very inception, the procedure of collecting the samples had been tainted on account of non-sealing of the forensic material collected from the accused-appellant.

The bench also noted the lopsided manner in which the trial was conducted was fortified from the evidence of sub-inspector Prahlad Singh who was allowed to narrate the entire confession of the appellant, in his examination-in-chief. 

"This procedure adopted by the trial court in permitting a police officer to verbatim narrate the confession made by an accused during investigation is grossly illegal and contrary to the mandate of Sections 24, 25 and 26 of the Indian Evidence Act, 1872. Not only this, the trial court even allowed the confessional statement of the appellant, to be exhibited in the evidence of the witness, which further establishes that the trial was conducted in a totally distorted manner," the bench said.             

With regard to DNA/FSL reports, evidently, the court said, there was not even a semblance of evidence on record to satisfy the court that the samples/articles collected from the dead body of the child-victim and those collected from the appellant which were later forwarded to the FSL were properly sealed or that the same remained in a self-same condition right from the time of the seizure till they reached the FSL. 

No witness from the FSL was examined by the prosecution to prove that the samples/articles were received in a sealed condition. Hence, there is every possibility of the samples being tampered/manipulated by the police officers so as to achieve a favourable result from the FSL, thereby, inculpating the appellant in the crime, the bench said. 

"Consequently, we feel that the DNA/FSL reports cannot be read in evidence. Once, these reports of the FSL are eschewed from consideration, there remains no evidence on the record of the case so as to connect the appellant with the crime," the bench said.

The court quashed and set aside the judgments passed by the trial court and the high court, holding that they did not stand to scrutiny. It acquitted the appellant of the charges and directed his release from prison forthwith, if not wanted in any other case.

Case Title: Karandeep Sharma @ Razia @ Raju vs. State of Uttarakhand