evidence available on the record, the testimonies and the arguments
adduced by the counsel for both the parties, we are of the considered
view that the case of the prosecution solely rests upon the DNA test
conducted on one of the condoms seized from the spot, whilst, there is
no other corroborating evidence to support the story of the
prosecution. There is no reason accorded as to why DNA profiling
could not be done on the other condom that was collected from the
same place at the same time. Further, we cannot rule out the
possibility of error committed while conducting the DNA test and the
condition in which the samples were kept. In this regard Modi
Medical Jurisprudence and Toxicology assumes importance at Page
543, wherein it has been noted as under:
“(a) Technical Errors
Firstly, the DNA-probe can be contaminated or
degraded. This is specially the case with field samples.
The contamination can be caused by bacterial , viral,
other non-human DNA or by blood or saliva traces of
police officers or laboratory personnel when handling
the DNA. The degradation is especially likely when the
DNA is in warm, moist conditions. Normally, DNA
degrades in a couple of days and vaginal swabs even in a
few hours since the vaginal secretions penetrate the DNA
of the sperm.
xxxx
Another point is the handling of the recovered DNAprobe.
The probe has to be put immediately in a deep
freezing cooling as low as -70°C or even lower.
xxxx
Furthermore, the DNA samples can be mixed up by the
police or the laboratory personnel, or the amount of
DNA can be insufficient. Secondly, a significant „source
of error‟ is the incomplete digestion of the DNA by the
restriction enzymes. The other extreme can be an overdigestion
also called „star activity‟. Thirdly a „band shift‟
can occur, meaning that the DNA fragments which are
put in several lanes next to each other can influence each
other‟s mobility, thus causing wrong results of the gel
electrophoresis..
xxxx
Finally, the expert who determines a match can be biased
or put in other words : „ …people tend to see what they
expect to see and it is true that there are very large
financial interest in the success of the tests, and their
continued adoption by the courts. The people carrying
out the tests have vested institutional interests in
prosecutions being successful‟. All these points are, by
far, not the only ones but they show that „… the practical
problems of actually doing the test should not be
underestimated.”
(b) Population Genetic Errors
To establish a match, the comparison of the DNA sample
from the scene of the crime or from the victim and the
DNA of the suspect is insufficient. The result would only
imply that the samples are identical, yet this does not
verify the hypothesis that the suspect is the factual
offender. To ascertain that the frequency of such a
matching DNA-profile that might occur by chance in the
relevant population must be calculated.”
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL. A. 1728/2014
Judgment pronounced on: 8th December, 2016
PREM SINGH
V
STATE (GOVT OF NCT OF DELHI)
CORAM:
HON’BLE MR. JUSTICE G. S. SISTANI
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. The present Criminal Appeal has been filed under Section 374(2) of
the Code of Criminal Procedure against the impugned judgment dated
25.11.2013 and order on sentence dated 15.01.2014 passed by the
Additional Sessions Judge, Saket Court, New Delhi in Sessions Case
No. 70/11, by virtue of which the appellant has been convicted under
Section 302 of the Indian Penal Code and sentenced to imprisonment
for life and to pay a fine of Rs. 20,000/- and in default of payment of
fine to further undergo simple imprisonment for a period of one year
for the offence punishable under Section 302 of the Indian Penal
Code.
2. The brief facts of the case as noted by the trial court are as under:
“On 27.05.2011 at 8.40 am, an information was received
in PS Okhla Industrial Area. The informant told about
murder of his niece at Tehkhand Balmiki Mohalla,Gopal
Ji Ka Makaan near Railway Line. The information was
recorded as DD No. 2A. It was marked to ASI Ranpal.
The IO reached at spot alongwith Ct. Sanjay. At 9.02 pm,
another information was received about a lady having
committed suicide at House No. 203, Balmiki Mohalla
and it was recorded as DD No. 3A. Copy of it was also
sent to ASI Ranpal. Dead body of one lady known as Smt.
Poonam was found lying at House No. 13/2, Third Floor,
Gupta Colony, Balmiki Mohalla, Tehkhand. Pieces of
condom, one quarter bottle (half filled) on which golden
border whisky was written, one tumbler and one bottle
containing some water were found near the dead body.
Apart from all this, one bottle of limca (half filled) an
another water bottle were lying near western side wall of
room. Two used condoms of pink colour were lying
behind the doors. Sh. Dinesh Singh, brother of deceased
met at spot.
xxxx
Crime team was called at the spot, who lifted chance
prints. IO picked exhibits from the spot. Same were
sealed by seal of P.K. photographer clicked photos from
different angles. Dead body was sent to mortuary of
AIIMS. IO collected call details of mobile phone
belonging to Anoop Singh and his relatives. From
inspection of call details, IO came to know that someone
contacted deceased from three numbers belonging to one
Shailesh. The latter was operating an STD booth. From
scrutiny of call details of Anoop Singh, the latter was
found in contact with co-accused Prem Singh at the
relevant time. After completion of investigation, both of
accused were indicted by police for offences punishable
U/s 302/120B/34 IPC.”
3. After the investigation was complete, charges under Section
302/120B/34 of the Indian Penal Code were framed against the
appellant and the co-accused, to which they pleaded not guilty and
claimed trial.
4. To bring home the guilt of the appellant and the co-accused, the
prosecution examined 31 witnesses in all. The statements of the
appellant and the co-accused were recorded under Section 313 of the
Code of Criminal Procedure wherein they denied all the incriminating
evidence and their involvement in the commission of the said offence.
No defence witness was examined to substantiate their defence.
5. The learned trial court, after scrutinising the arguments addressed by
the counsel for the parties and evidence adduced by them, concluded
that no offence is made out against co-accused Anoop Singh and
acquitted him of all the charges whilst, holding that the prosecution
has been successful in establishing the guilt of the appellant beyond
reasonable doubt and held him guilty under Section 302 of the Indian
Penal Code.
6. Mr. Joginder Tuli, learned counsel appearing on behalf of the
appellant, while assailing the judgment of the trial court, contended
that the conviction of the appellant is perverse and based on
conjectures and surmises, resulting in flagrant miscarriage of justice.
He further submitted that the impugned judgment cannot be sustained
in law as the present case is a case of circumstantial evidence and the
prosecution has failed to complete the chain of events for the offence.
7. The learned counsel vehemently argued that the trial court has grossly
erred in not considering the inherent contradictions in the case of the
prosecution, for which benefit of doubt ought to have been given to
the appellant, as was given to the co-accused. To substantiate his
argument, learned counsel for the appellant has relied upon a decision
of the Apex Court in Sukhram vs. State of Madhya Pradesh reported
in AIR 1989 SC 772, wherein the Hon‟ble Supreme Court held that
where benefit of doubt has been given to a co-accused, the other coaccused
would also be entitled to acquittal. The relevant paragraphs
are as under:
“10. There is another aspect of the matter which has also
escaped the notice of the High Court when it sustained
the conviction of the appellant under Section 302 read
with Section 34 and Section 436 read with Section 34
IPC while acquitting accused Gokul of those charges.
Though the accused Gokul and the appellant were
individually charged under Sections 302 and 436 IPC
they were convicted only under the alternative charges
under Section 302 read with Section 34 and Section 436
read with Section 34 IPC by the Sessions Judge.
Consequently, the appellant's convictions can be
sustained only if the High Court had sustained the
convictions awarded to accused Gokul also. Inasmuch as
the High Court has given the benefit of doubt to accused
Gokul and acquitted him, it follows that the appellant's
convictions for the two substantive offences read with
Section 34 IPC cannot be sustained because this is a case
where the co-accused is a named person and he has been
acquitted and by reason of it the appellant cannot be held
to have acted conjointly with anyone in the commission
of the offences. This position of law is well settled by this
Court and we may only refer to a few decisions in this
behalf vide Prabhu Babaji v. State of Bombay [AIR 1956
SC 51 : (1956) Cri LJ 147] , Krishna Govind
Patil v. State of Maharashtra [(1964) 1 SCR 678 : AIR
1963 SC 1413 : 1963 (2) Cri LJ 351] and Baul v. State of
U.P. [(1968) 2 SCR 450 : AIR 1968 SC 728 : 1968 Cri LJ
872].
11. It therefore, follows that even if the evidence of the
prosecution witnesses did not suffer from any infirmity,
the acquittal of the other named accused Gokul would
stand in the way of the appellant being convicted
constructively under Section 34 IPC for the substantive
offences under Section 302 and Section 436 IPC.”
8. The learned counsel for the appellant urged that the trial court has
based the conviction of the appellant on a DNA test of the condom
allegedly found in the room of the deceased but failed to take into
consideration the statement of the appellant recorded under Section
313 of the Code of Criminal Procedure, wherein it has been stated that
the semen of the appellant was forcibly taken by the police officials
after his arrest, in one of the condoms sent for the DNA test. Further,
learned counsel drew attention of this court to the fact that DNA
profiling was conducted only upon one of the two condoms found at
the spot even though they were collected from the same place at the
same time sand sent to FSL at the same time. Further, there is nothing
on record to suggest that the samples were kept under sanitary
conditions at the police station.
9. The learned counsel further pointed out that DNA of the foetus inside
the deceased did not match with the appellant or the husband of the
deceased (co-accused), which proves the probability of a third person
responsible for the death of the deceased.
10. The learned counsel went on to submit that no independent witness
has been examined by the prosecution to prove the presence of the
appellant at the spot. He also contended that no recovery of any kind
of weapon was made from the appellant. Furthermore, the recovery of
the mobile phone of the deceased from the appellant was planted and
pictures of his family from his personal mobile phone were transferred
to the mobile phone of the deceased.
11. The learned counsel also submitted that prosecution has failed to
prove that there was any motive on the part of the appellant to cause
death of the deceased. Furthermore, it is a case of circumstantial
evidence and failing to prove motive on part of the appellant to
commit the crime is fatal to the case of the prosecution.
12. The learned counsel also pointed towards the fact that the crime team
took 8 chance prints from the place of the incident but the results of
the said chance prints are not exhibited anywhere which is fatal to the
case of the prosecution.
13. Lastly, the learned counsel concluded his argument by stating that as
per the MLC, the injuries on the appellant were one or two weeks old.
However, difference between the date of MLC and the date of
incident is almost three weeks.
14. In order to substantiate his argument that in cases based on
circumstantial evidence, all the circumstances must be conclusive and
the chain of evidence be so complete so as to leave no reasonable
ground which leads to the innocence of the accused. Reliance was
placed on a judgment titled as Hanumant Govind Nargundkar v.
State of Madhya Pradesh reported in AIR 1952 SC 343, wherein the
Apex Court held as under:
“10. It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should
in the first instance be fully established, and all the facts
so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused.”
15. The learned counsel further relied upon a decision by the Hon‟ble
Supreme Court in Naseem Ahmed v. Delhi Administration reported
in (1974) 3 SCC 668, wherein it was observed as under:
“10. This is a case of circumstantial evidence and it is
therefore necessary to find whether the circumstances on
which prosecution relies are capable of supporting the
sole inference that the appellant is guilty of the crime of
which he is charged. The circumstances, in the first
place, have to be established by the prosecution by clear
and cogent evidence and those circumstances must not be
consistent with the innocence of the accused. For
determining whether the circumstances established on the
evidence raise but one inference consistent with the guilt
of the accused, regard must be had to the totality of the
circumstances. Individual circumstances considered in
isolation and divorced from the context of the over-all
picture emerging from a consideration of the diverse
circumstances and their conjoint effect may by themselves
appear innocuous. It is only when the various
circumstances are considered conjointly that it becomes
possible to understand and appreciate their true effect.”
16. On the converse, Ms. Aashaa Tiwari, learned Additional Public
Prosecutor submitted that the impugned judgment does not call for
any interference and the trial court has rightly convicted the appellant
for the offence punishable under Section 302 of the Indian Penal
Code.
17. Learned Additional Public Prosecutor argued that evidence adduced
on record clearly establishes the guilt of the appellant which is duly
corroborated by the medical and forensic evidence and the testimonies
of the witnesses. She further submitted that there is no reason to
disbelieve the findings of PW-26 Ms. Shashi Bala, Senior Scientific
Officer that the DNA profiling conducted on the condom matches
with the DNA of the appellant.
18. The Additional Public Prosecutor further argued that no explanation
has been accorded to the injuries found on the body of the appellant
found during his medical examination and there is nothing on record
to suggest that the appellant was incapable of performing sexual
intercourse or the appellant was forced by the police officials to give
his semen for sample.
19. To substantiate her argument, the learned Additional Public
Prosecutor relied upon a decision of the Hon‟ble Supreme Court in
Bhagwan Das vs. State of Rajasthan reported in AIR 1957 SC 589,
wherein the Apex Court held as under:
“13. The learned Sessions Judge was of the opinion that
the evidence of the doctor PW 11 made the story that
Shivlal could walk for a little distance upto the Khala of
Hukma or was able to talk so as to make a dying
declaration, improbable. But the learned Judges of the
High Court disposed of this matter by saying that the
doctor was comparatively young and that his statement
was not in accord with the opinion expressed in books on
Medical Jurisprudence by authors like Modi and Lyon.
But it cannot be said that the opinions of these authors
were given in regard to circumstances exactly similar to
those which arose in the case now before us nor is this a
satisfactory way of disposing of the evidence of an expert
unless the passages which are sought to discredit his
opinion are put to him. This Court in Sundarlal v. State
of Madhya Pradesh [AIR 1954 SC 28] disapproved of
Judges drawing conclusions adverse to the accused by
relying upon such passages in the absence of their being
put to medical witnesses. The learned Judges of the High
Court were, therefore, in error in accepting the testimony
of these witnesses in support of the correctness of the two
dying declarations nor could the statement of the
deceased alleged to have been made in the circumstances
of this case be considered sufficient to support the
conviction of the accused. The recovery of the kassi is a
wholly neutral circumstance because it has not been
proved that it belonged to Bhagwandas.”
20. The learned counsel for the State further relied upon a judgment of the
Apex Court titled as Smt. Kamti Devi vs. Poshi Ram reported in AIR
2001 SC 2226, wherein the Hon‟ble Supreme Court held that the
results of a DNA test are accurate and conclusive in nature. The
relevant paragraphs are as under:
“4. The marriage between the appellant Kamti Devi and
the respondent Poshi Ram was solemnised in the year
1975. For almost fifteen years thereafter Kamti Devi
remained childless and on 4-9-1989 she gave birth to a
male child (his name is Roshan Lal). The long period in
between was marked by internecine legal battles in which
the spouses engaged as against each other. Soon after the
birth of the child it was sought to be recorded in the
register under the Births, Deaths and Marriages
Registration Act. Then the husband filed a civil suit for a
decree declaring that he is not the father of the child, as
he had no access to the appellant Kamti Devi during the
period when the child would have been begotten.
xxxx
11. We may remember that Section 112 of the Evidence
Act was enacted at a time when the modern scientific
advancements with deoxyribonucleic acid (DNA) as well
as ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result of a genuine
DNA test is said to be scientifically accurate. But even
that is not enough to escape from the conclusiveness of
Section 112 of the Act e.g. if a husband and wife were
living together during the time of conception but the DNA
test revealed that the child was not born to the husband,
the conclusiveness in law would remain irrebuttable. This
may look hard from the point of view of the husband who
would be compelled to bear the fatherhood of a child of
which he may be innocent. But even in such a case the
law leans in favour of the innocent child from being
bastardised if his mother and her spouse were living
together during the time of conception. Hence the
question regarding the degree of proof of non-access for
rebutting the conclusiveness must be answered in the
light of what is meant by access or non-access as
delineated above.”
21. To further substantiate her argument that the reports of a DNA test are
scientifically accurate, the Additional Public Prosecutor relied upon
Santosh Kumar Singh vs. State Through CBI reported in (2010) 9
SCC 747. the Hon‟ble Supreme Court held as under:
“53. It is the primary submission of Mr Sushil Kumar that
the vaginal swabs and slides taken from the dead body at
the time of the post-mortem examination had been
tampered with and as there was some suspicion with
regard to the blood samples taken by Dr. N.S. Kalra on
25th January, the DNA report too could not be relied
upon. This is a rather far-fetched plea as it would mean
that not only the investigating agency, that is, the senior
officers of CBI and DSP Ohri in particular, the doctors
who had taken the vaginal swabs and slides, the doctors
and other staff who had drawn the blood samples, and the
scientists in Hyderabad had all been in a conspiracy to
harm the appellant. To our mind, this premise is
unacceptable.
xxxx
67. The statements of Dr. Lalji Singh and Dr. G.V. Rao
reveal that the samples had been tested as per the
procedure developed by the laboratory, that the samples
were sufficient for the purposes of comparison and that
there was no possibility of the samples having been
contaminated or tampered with. The two scientists gave
very comprehensive statements supported by documents
that DNA of the semen stains on the swabs and slides and
the underwear of the deceased and the blood samples of
the appellant was from a single source and that source
was the appellant.
xxxx
71. We feel that the trial court was not justified in
rejecting the DNA report, as nothing adverse could be
pointed out against the two experts who had submitted it.
We must, therefore, accept the DNA report as being
scientifically accurate and an exact science as held by
this Court in Kamti Devi v. Poshi Ram [(2001) 5 SCC
311 : 2001 SCC (Cri) 892 : AIR 2001 SC 2226] . In
arriving at its conclusions the trial court was also
influenced by the fact that the semen swabs and slides
and the blood samples of the appellant had not been kept
in proper custody and had been tampered with, as
already indicated above. We are of the opinion that the
trial court was in error on this score. We, accordingly,
endorse the conclusions of the High Court on
Circumstance 9.”
22. Lastly, the learned counsel for the State placed reliance on another
judgment of the Apex Court titled as Hardip Singh vs. State of
Punjab reported in (2008) 8 SCC 557, wherein the Hon‟ble Supreme
Court held that the delay in sending the parcels of sample to the FSL
cannot cause any prejudice to the appellant if the seal put on them is
intact. The relevant paragraph is as under:
“17. The then Station House Officer, Inspector Baldev
Singh, who was examined as PW 1, was posted at Police
Station Ajnala on the date of occurrence. He received the
said samples of opium along with case material, being
produced before him by PW 5. It has come on evidence
that Inspector Baldev Singh kept the entire case property
with him till it was deposited in the office of the Chemical
Examiner, Amritsar on 30-9-1997 through ASI Surinder
Singh (PW 3). It has also come on evidence that till the
date the parcels of sample were received by the chemical
examiner, the seal put on the said parcels was intact.
That itself proves and establishes that there was no
tampering with the aforesaid seal in the sample at any
stage and the sample received by the analyst for chemical
examination contained the same opium which was
recovered from the possession of the appellant. In that
view of the matter, delay of about 40 days in sending the
samples did not and could not have caused any prejudice
to the appellant. The aforesaid contention, therefore, also
stands rejected.”
23. We have heard learned counsel for the parties and have also carefully
examined the impugned judgment, the testimonies of various
witnesses and the documents placed on record.
24. To examine the guilt of the appellant, we must appreciate the evidence
adduced by the prosecution. The present case being a case of
circumstantial evidence, it is a well settled law that where there is no
direct evidence against the accused and the prosecution rests its case
on circumstantial evidence; the inference of guilt can be justified only
when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused. In other words, there
must be a chain of evidence so complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within all human
probability, the act must have been done by the accused. All the links
in the chain of circumstances must be complete and should be proved
through cogent evidence.
25. Law with regard to the conviction on the basis of circumstantial
evidence has been discussed in detail by the Supreme Court in the
case of Harishchandra Ladaku Thange vs. State of Maharashtra,
reported at AIR 2007 SC 2957. It would be useful to reproduce the
relevant paragraphs:-
“8. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the
guilt of any other person. (See Hukam Singh v.State of
Rajasthan 1977CriLJ639, Eradu v. State of
Hyderabad 1956CriLJ559, Earabhadrappa v. State of
Karnataka, State of U.P. v. Sukhbasi and
Ors. 1985CriLJ1479, Balwinder Singh alias Dalbir
Singh v. State of Punjab, 1987CriLJ330 and Ashok
Kumar Chatterjee v. State of M.P. 1989CriLJ2124. The
circumstances from which an inference as to the guilt of
the accused is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred
from those circumstances. In Bhagat Ram v. State of
Punjab AIR1954SC621 it was laid down that where the
case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances
must be such as to negative the innocence of the accused
and bring home the offences beyond any reasonable
doubt.
9. We may also make a reference to a decision of this
Court in C. Chenga Reddy and Ors. v. State of A.P.
1996CriLJ3461 , wherein it has been observed thus:
21. In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved
and such circumstances must be conclusive in
nature. Moreover, all the circumstances should be
complete and there should be no gap left in the
chain of evidence. Further, the proved
circumstances must be consistent only with the
hypothesis of the guilt of the accused and totally
inconsistent with his innocence.
10. In Padala Veera Reddy v. State of A.P.
AIR1990SC79 it was laid down that when a case rests
upon circumstantial evidence, such evidence must satisfy
the following tests:
1) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and
firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape
from the conclusion that within all human
probability the crime was committed by the accused
and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence.
11. In State of U.P. v. Ashok Kumar Srivastava
[1992]1SCR37 it was pointed out that great care must be
taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two
inferences, the one in favour of the accused must be
accepted. It was also pointed out that the circumstances
relied upon must be found to have been fully established
and the cumulative effect of all the facts so established
must be consistent only with the hypothesis of guilt.
12. Sir Alfred Wills in his admirable book `Wills'
Circumstantial Evidence' (Chapter VI) lays down the
following rules specially to be observed in the case of
circumstantial evidence:
(1) the facts alleged as the basis of any legal inference
must be clearly proved and beyond reasonable doubt
connected with the factum probandum;
(2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal
accountability;
(3) in all cases, whether of direct or circumstantial
evidence the best evidence must be adduced which the
nature of the case admits
(4) in order to justify the inference of guilt, the
inculpatory facts must be incompatible with the
innocence of the accused and incapable of explanation,
upon any other reasonable hypothesis than that of his
guilt; and
(5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted.
13. There is no doubt that conviction can be based solely
on circumstantial evidence but it should be tested by the
touchstone of law relating to circumstantial evidence laid
down by this Court as far back as in 1952.”
26. In another case titled as Sanatan Naskar and Anr. v. State of West
Bengal reported in (2010) 8 SCC 249, it was observed by the Hon‟ble
Supreme Court as follows:-
“13. There cannot be any dispute to the fact that it is a
case of circumstantial evidence as there was no eye
witness to the occurrence. It is a settled principle of law
that an accused can be punished if he is found guilty even
in cases of circumstantial evidence provided, the
prosecution is able to prove beyond reasonable doubt
complete chain of events and circumstances which
definitely points towards the involvement and guilt of the
suspect or accused, as the case may be. The accused will
not be entitled to acquittal merely because there is no eye
witness in the case. It is also equally true that an accused
can be convicted on the basis of circumstantial evidence
subject to satisfaction of accepted principles in that
regard. "
27. Similarly, in another case titled as Dr. Sunil Clifford Daniel vs. State
of Punjab (Crl. Appeal No. 2001 of 2010 decided on 14.09.2012), the
Hon‟ble Supreme Court held as under:
"17. In Sharad Birdhichand Sarda vs. State of
Maharashtra AIR 1984 SC 1622, it was held by this
Court that, the onus is on the prosecution to prove, that
the chain is complete and that falsity or untenability of
the defence set up by the accused, cannot be made the
basis for ignoring any serious infirmity or lacuna in the
case of the prosecution. The Court then proceeded to
indicate the conditions which must be fully established
before a conviction can be made on the basis of
circumstantial evidence. These are:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established. The
circumstances concerned 'must' or 'should' and not 'may
be' established;
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis except
the one to be proved; and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
Thus, in a case of circumstantial evidence, the
prosecution must establish each instance of incriminating
circumstance, by way of reliable and clinching evidence,
and the circumstances so proved must form a complete
chain of events, on the basis of which, no conclusion
other than one of guilt of the accused can be reached.
Undoubtedly, suspicion, however grave it may be, can
never be treated as a substitute for proof. While dealing
with a case of circumstantial evidence, the court must
take utmost precaution whilst finding an accused guilty,
solely on the basis of the circumstances proved before it."
28. Being a case of circumstantial evidence, the circumstances should be
of such a conclusive nature so as to exclude every hypothesis. It must
be such as to show that within all human probability the act must have
been done by the accused beyond all reasonable doubt. To determine
these aspects, we would consider the evidence in this case in detail.
Medical/Forensic Evidence
29. After perusing the arguments adduced by the counsel for the parties,
we can draw an inference that the case of the prosecution solely rests
upon the medical/forensic evidence. Hence, it would be pertinent to
discuss the FSL report placed on record. The relevant portion of the
FSL report is as under:
“Forensic Sample received on 17.06.2011
Parcel 1a : One sealed plastic dibbi sealed with the seal
of “PK” containing exhibit „1a‟.
Exhibit 1a : One damp foul smelling condom along with
dirty yellowish putrefied liquid.
Parcel 1b : One sealed plastic dibbi sealed with the seal
of “PK” containing exhibit „1b‟.
Exhibit 1b : One damp foul smelling condom along with
dirty yellowish putrefied liquid.
Parcel 2 : One sealed plastic container with the seal of
“MSL DEPARTMENT OF FORENSIC MEDICINE
AIIMS NEW DELHI” containing exhibit „2‟.
Exhibit 2 : Foetus with umbilical cord and fleshy
material.
xxxx
Parcel 7 : One sealed plastic dibbi sealed with the seal of
“MSL DEPARTMENT OF FORENSIC MEDICINE
AIIMS NEW DELHI” containing exhibit „7‟.
Exhibit 7 : Gauze cloth piece having brown stains
described as gauze of accused Prem Singh.
Parcel 8 : One sealed plastic dibbi sealed with the seal of
“MSL DEPARTMENT OF FORENSIC MEDICINE
AIIMS NEW DELHI” containing exhibit „8‟.
Exhibit 8 : Gauze cloth piece having few brown stains
described as gauze of accused Anoop Singh.
DNA EXAMINATION
xxxx
DNA profile was prepared for the exhibits „1b‟, „2‟, „7‟
and „8‟. However DNA profile could not be prepared for
the exhibits „1a‟ and „6‟ due to non amplification.
RESULTS OF EXAMINATION
The alleles as from the source of exhibit „7‟ (Gauze cloth
piece of accused Prem Singh ) are accounted in the
alleles as from the source of exhibit „1b‟ (condom).
However the alleles as from the source of exhibit „7‟
(Gauze cloth piece of accused Prem Singh) are not
accounted in the alleles as from the source of exhibit „2‟
(foetus). The alleles as from the source of exhibit „8‟
(Gauze cloth piece of accused Anoop Singh) are not
accounted in the alleles as from the source of exhibit „1b‟
(condom) and exhibit „2‟ (foetus).
CONCLUSION
The DNA profiling (STR analysis) performed on the
exhibits provided is sufficient to conclude that the source
of exhibit „7‟ (gauze cloth piece of accused Prem Singh)
is responsible for the biological stains i.e. seminal fluid
present on the source exhibit „1b‟ (condom)”
30. In the light of the above, the testimony of PW-26 Ms. Shashi Bala,
Senior Scientific Officer, FSL, Delhi (who conducted the forensic
examination) assumes importance wherein she proved the results of
the FSL report. PW-26 deposed as under:
“Upon examination, I came to the conclusion that the
Alleles from the source of exhibit 7 i.e. gauze cloth piece
of accused Prem Singh are accounted in the Alleles as
from the source of Ex. 1b (condom), however, the Alleles
as from the source of Ex. 7 (gauze cloth piece of accused
Prem Singh) are not accounted in the Alleles as from the
source of Ex. 2 (foetus). The Alleles as from the source of
Ex. 8 (gauze cloth piece of accused Anoop Singh) are not
accounted in the Alleles as from the source of Ex. 1b
(condom) and Ex. 2 (foetus).
The DNA profiling (STR analysis) performed on the
exhibits provided is sufficient to conclude that the source
of Ex. 7 is responsible for the biological stand i.e.
seminal fluid present on the condom (1b).”
31. PW-26 Ms. Shashi Bala in her cross examination stated as under:
“xxxx
At this time, I cannot tell the exact date when I examined
said samples. It depends upon the condition of sample of
semen that it source could be determined. It is not hard
and fast rule that after 30 days of taking semen sample,
its source cannot be determined. Vol: it depends upon the
condition of that sample.”
32. However, it is noteworthy that the appellant in his statement under
Section 313 of the Code of Criminal Procedure stated as under:
“Q48 : It is in evidence against you that on 17.06.2011
Ms. Shashi Bala (PW-26) examined the exhibits sent to
FSL and prepared a report Ex.PW26/A in this regard.
What do you have to say?
Ans. The condoms which were sent by the IO to the FSL
in one of the condoms my semen was forcibly taken by the
IO during my police custody in the police station. Hence,
the report given by FSL is based on the condom planted
by the IO.”
33. As far as the injuries on the body of the appellant are concerned, the
appellant stated in his statement under Section 313 of the Code of
Criminal Procedure which reads as under:
“Q34A It is in evidence against you that on
14.06.2011, Dr. Raghvendra Kumar (PW9) examined
you accused Prem Singh and prepared MLC Ex.PW9/B
and some injuries were found on your body. What do you
have to say about those injuries.?
A. I do not know how the injuries were caused.
I used to play cricket in the village and the injuries may
have been caused while playing.”
34. Attention of this court was also drawn towards the MLC of the
appellant with regard to the injuries found on his body. The relevant
portion of the MLC of the appellant is as under:
“All are looked liked scratch marks and appears to be 1-
2 weeks old”
Further, the date on the MLC appears to be 14.06.2011, whereas the
date of the incident as per the First Information Report was
26/27.05.2011. This appears to be in contradistinction with the MLC
of the appellant as the gap between the MLC and the date of incident
is around 3 weeks. Moreover, there were injuries also found on the
body of the co-accused Anoop Singh, for which no explanation has
been accorded. Henceforth, it would not be justified to rely upon this
ground of the conviction as considered by the trial court.
35. After perusal of the medical/scientific and forensic evidence, we are
of the considered view that the presence of semen of the appellant on
one of the condoms i.e. exhibit „1b‟ found at the spot of incident is
established. Whilst, there is no explanation accorded to why DNA
profiling was done only on one condom i.e. exhibit „1b‟ and not on
exhibit „1a‟ raises a doubt as to the admissibility of this evidence as
both the condoms were collected from the same spot at the same time
and sent to FSL at the same time.
36. In this backdrop, where the admissibility of scientific evidence is in
doubt, it would be necessary to corroborate the results of the DNA
report with the surrounding circumstances.
Motive
37. Since the case is based on the circumstantial evidence, motive plays a
vital role in determining the guilt of the accused. To deal with the
contention of the counsel for the appellant that there was no motive to
commit the aforementioned offence, we are of the view that there is
no direct evidence in the case and since it is a case of circumstantial
evidence, thus, the prosecution has to establish motive for the crime.
The test for proving a case of circumstantial evidence stands entirely
on a different footing than a case of direct evidence.
38. The fact that the prosecution itself has failed to adduce any evidence
on record to prove the motive on part of the appellant to commit the
said offence convinces us to draw an adverse inference in this regard.
39. Moreover, the trial court also noted the absence of motive on part of
the appellant to commit the aforementioned offence. The relevant
portion of the impugned judgment is as under:
“So far plea of Ld. Defence counsel that accused Prem
Singh had no motive to kill victim Poonam, is concerned,
it is well settled that it is not necessary always that
motive of accused to do crime is proved on record.
Motive takes birth in the mind of a person and remains
hidden in most of cases.”
40. The law relating to the role of motive in cases of circumstantial
evidence is very clear as laid down in a catena of decisions of the
Hon‟ble Supreme Court and this court as well. The Apex Court in the
case of Surinder Pal Jain vs. Delhi Administration reported in 1993
SCR (2) 226, observed as under:
“12. There is no motive established in this case by the
prosecution for the appellant to commit murder of his
wife and the evidence of Tara Chand father of the
deceased as well as the sister of the deceased and the
tenants living in the same house disclosed that the
relations between the husband and wife were cordial. In
a case based on circumstantial evidence, motive assumes
pertinent significance as existence of the motive is an
enlightening factor in a process of presumptive reasoning
in such a case. The absence of motive, however, puts the
court on its guard to scrutinise the circumstances more
carefully to ensure that suspicion and conjecture do not
take place of legal proof.”
41. A similar view was upheld in a decision of the Hon‟ble Supreme
Court in Pannayar vs. State of Tamil Nadu by Inspector of Police
reported in (2009) 9 SCC 152, wherein the Apex Court held as under:
“13. It has also come in evidence of Subbiah that the
accused was a known person to his family members. One
wonders as to why would the accused whom the deceased
knew would venture to rob her. Motive of robbery does
not seem to be present in the present case. The absence
of motive in a case which depended on circumstantial
evidence is more favourable to the defence.”
42. Similarly, in Gosu Jairami Reddy & Anr. vs. State of Andhra
Pradesh (Criminal Appeal No. 1321 of 2006 decided on 26.07.2011),
the Hon‟ble Supreme Court held as under:
“13. It is settled by a series of decisions of this Court that
in cases based on eye witness account of the incident
proof or absence of a motive is not of any significant
consequence. If a motive is proved it may supports the
prosecution version. But existence or otherwise of a
motive plays a significant role in cases based on
circumstantial evidence.”
43. In another case titled as Munish Mubar vs State of Haryana (Crl. A.
294/2010) the Hon‟ble Supreme Court held as under:
“20. In a case of circumstantial evidence, motive
assumes great significance and importance, for the
reason that the absence of motive would put the court on
its guard and cause it to scrutinize each piece of evidence
very closely in order to ensure that suspicion, emotion or
conjecture do not take the place of proof.”
44. In view of the settled position of law, in the cases of circumstantial
evidence, motive plays a significant role. We find that in the present
case the co-accused was the husband of the deceased and to prove the
involvement of the appellant, who was a friend of the deceased motive
will assume significance. It is worth mentioning that from the scrutiny
of the records, it is apparent that the appellant was charged for the said
offence only on the mere fact that he was in contact with the
co-accused at the relevant time. We are of the opinion that merely on
the basis of call details of the co-accused, no motive can be espoused
on the appellant. Moreover, the prosecution has failed to adduce any
other evidence on record to substantiate its case in relation to motive
that the co-accused Anoop Singh, husband of the deceased conspired
with the appellant to eliminate the deceased as he was doubting her
character and mere details of call record is not sufficient evidence to
connect the appellant with the commission of the aforementioned
offence.
Other Evidence
45. It is further in evidence that PW-2 Shiv Muni Singh Yadav, a material
witness, had failed to recognize the appellant in court. In his crossexamination,
PW-2 stated as under:
“(Ld. Addl. PP pointed towards accused Prem Singh). I
cannot say that he i.e. Prem Singh is same person.
Accused Anoop Singh had requested to allow me for stay
of Prem Singh at my house on that day. It is wrong to say
that I am deliberately not identifying accused Prem Singh
today. Vol: as it was 10.30 pm, I could not see him
properly. I cannot say that it was 13th June 2011 when
accused were brought to me by the police. It is wrong to
say that on 13.06.2011, I had seen accused Prem Singh
present in court today in the custody of police. It is
wrong to say that I am not deposing properly against the
accused person as the accused Anoop Singh is previously
known to me.
xxxx
It is correct that I did not recognize the person who came
with Anoop Singh in the night of 24/25.05.2011.
Similarly, I could not identify the person who was
brought by the police on 13.06.2011 along with accused
Anoop Singh. It is true that I have signed documents
mentioned above in police station.”
46. From the above testimony of PW-2 Shiv Muni Singh Yadav, it is clear
that he failed to recognize the appellant who allegedly came to his
house (jhuggi) to ask for permission to stay in the intervening night of
the day of incident. Moreover, no other witness has said anything
about the appellant being connected with the commission of the said
offence. This goes against the case of the prosecution and raises a
serious doubt.
47. The attention of this court was also drawn towards the fact that the
foetus inside the deceased did not match with the appellant or the
husband of the deceased (co-accused), which is confirmed by the
medical and forensic evidence discussed above in detail. This raises a
doubt in our mind about the probability of a third person being
involved in causing death of the deceased.
48. As far as the recovery of the mobile phone of the deceased from the
appellant is concerned, it is the case of the appellant that the recovery
of the mobile phone was planted and the pictures of his family taken
from his personal mobile phone were transferred to the mobile phone
of the deceased. In his statement under Section 313 of the Code of
Criminal Procedure, the appellant has specifically denied the recovery
of any such mobile phone and mentioned that this recovery was
planted and pictures of his family were transferred from his personal
mobile phone to the allegedly recovered mobile phone by the police.
The appellant stated as under:
“Q19 : It is in evidence against you that two mobile
phones, one make of NOKIA (black colour) and other
make of LAVA were recovered from your possession and
you stated that the phone make NOKIA was being used
by deceased and on being checked it was found having
no SIM however, some photographs were in it, both of
these mobile phones were seized vide seizure memo
Ex.PW18/D (of Nokia) and Ex.PW18/E (of Lava). What
do you have to say?
Ans. It is incorrect as only mobile of make Lava was
recovered from my personal search.
xxxx
Q49 : It is in evidence against you that on 27.06.2011
Virender Singh (PW-27) examined one NOKIA mobile
phone model 2700-C-2(1) along with 2 GB memory SD
card and prepared his report Ex.PW27/A in this regard.
What do you have to say?
Ans. The photographs of my family which were installed
by me in my mobile phone make Lava were transferred
by the IO in the mobile make Nokia of the deceased and
were sent for examination.”
49. If we are to believe this contention of the appellant for the sake of
arguments, then there can possibly be no witness to such an act done
by the Investigation Officer. Further, there is nothing on record to
suggest that the recovery of the mobile phone of the deceased from
the appellant cannot be planted. Moreover, it is not believable that
after committing the offence of murder, such a person would transfer
their family photographs to the mobile phone of the deceased.
50. In view of the above discussed settled law and after perusal of the
evidence available on the record, the testimonies and the arguments
adduced by the counsel for both the parties, we are of the considered
view that the case of the prosecution solely rests upon the DNA test
conducted on one of the condoms seized from the spot, whilst, there is
no other corroborating evidence to support the story of the
prosecution. There is no reason accorded as to why DNA profiling
could not be done on the other condom that was collected from the
same place at the same time. Further, we cannot rule out the
possibility of error committed while conducting the DNA test and the
condition in which the samples were kept. In this regard Modi
Medical Jurisprudence and Toxicology assumes importance at Page
543, wherein it has been noted as under:
“(a) Technical Errors
Firstly, the DNA-probe can be contaminated or
degraded. This is specially the case with field samples.
The contamination can be caused by bacterial , viral,
other non-human DNA or by blood or saliva traces of
police officers or laboratory personnel when handling
the DNA. The degradation is especially likely when the
DNA is in warm, moist conditions. Normally, DNA
degrades in a couple of days and vaginal swabs even in a
few hours since the vaginal secretions penetrate the DNA
of the sperm.
xxxx
Another point is the handling of the recovered DNAprobe.
The probe has to be put immediately in a deep
freezing cooling as low as -70°C or even lower.
xxxx
Furthermore, the DNA samples can be mixed up by the
police or the laboratory personnel, or the amount of
DNA can be insufficient. Secondly, a significant „source
of error‟ is the incomplete digestion of the DNA by the
restriction enzymes. The other extreme can be an overdigestion
also called „star activity‟. Thirdly a „band shift‟
can occur, meaning that the DNA fragments which are
put in several lanes next to each other can influence each
other‟s mobility, thus causing wrong results of the gel
electrophoresis..
xxxx
Finally, the expert who determines a match can be biased
or put in other words : „ …people tend to see what they
expect to see and it is true that there are very large
financial interest in the success of the tests, and their
continued adoption by the courts. The people carrying
out the tests have vested institutional interests in
prosecutions being successful‟. All these points are, by
far, not the only ones but they show that „… the practical
problems of actually doing the test should not be
underestimated.”
(b) Population Genetic Errors
To establish a match, the comparison of the DNA sample
from the scene of the crime or from the victim and the
DNA of the suspect is insufficient. The result would only
imply that the samples are identical, yet this does not
verify the hypothesis that the suspect is the factual
offender. To ascertain that the frequency of such a
matching DNA-profile that might occur by chance in the
relevant population must be calculated.”
51. Furthermore, we are of the considered view that there are various
lacunas in the case of prosecution in establishing the chain of
circumstantial evidence against the appellant. Neither any last seen
evidence nor any motive on the part of the appellant for commission
of the said offence punishable under Section 302 of the Indian Penal
Code was proved by the prosecution. Moreover, the prosecution has
not produced any independent witness including a neighbour or a
close relative of the deceased to show that they were having frequent
fights and their relation was not cordial which instigated the husband
of the deceased to conspire with the appellant to eliminate the
deceased. Further, there is no cogent evidence brought on record
which proves the guilt of the appellant beyond reasonable doubt.
Henceforth, we are of the opinion that the prosecution has failed to
complete the chain of evidence and the guilt of the appellant beyond
all reasonable doubt and benefit of doubt be given to the appellant.
52. Accordingly, in view of the forgoing reasons, the appeal is allowed
and the appellant is acquitted of all the charges levelled against him.
53. A copy of this judgment be sent to Jail Superintendent, Tihar Jail. The
appellant is ordered to be released forthwith if not wanted in any other
case.
SANGITA DHINGRA SEHGAL, J
G. S. SISTANI, J
DECEMBER 8th,2016
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