| Headnote |
Issue for consideration: In a case based on circumstantial evidence as there was no eyewitness to the kidnapping and murder, and where the prosecution’s case essentially turned upon the ‘recoveries’ made at the behest of the appellants-convicts, purportedly u/s.27, Evidence Act, whether their conviction on different counts and death sentence imposed on two out of the three appellants was justified, when the confessions were made before their arrest and prior to being ‘accused of any offence’. Evidence Act, 1872 – ss.26, 27 – Being in ‘the custody of a police officer’ and being ‘accused of an offence’ – Pre-requisites to render a confession made to the police admissible to a limited extent by bringing into play the exception postulated u/s.27: Held: s.26 provides that no confession made by any person whilst he is in the custody of a police officer shall be proved against such person, unless made in the immediate presence of a Magistrate – s.27 is in the nature of an exception to s.26 – It is essential u/s.27 that the person concerned must be ‘accused of an offence’ and being in the ‘custody of a police officer’, he or she must give information leading to the discovery of a fact and so much of that information, whether it amounts to a confession or not, that relates distinctly to the fact discovered, may be proved against him – Both aspects, viz, being in ‘the custody of a police officer’ and being ‘accused of an offence’, are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated u/s. 27 – In the present case, though one of the appellant was taken to the police station, be it on 29.03.2013 or even earlier, he could not be said to be in ‘police custody’ till he was arrested at 18:30 hours on 29.03.2013, as he did not figure as an ‘accused’ in the FIR and was not ‘accused of any offence’ till his arrest – Therefore, it was his arrest which resulted in actual ‘police custody’, and the confession made by him, before such arrest and prior to his being ‘accused of any offence’, would be directly hit by s.26 and there is no possibility of applying the exception u/s.27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact – Thus, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at his behest, cannot be proved against him, as he was not ‘accused of any offence’ and was not in ‘police custody’ at the point of time he allegedly made a confession – Similarly, the other two appellants were also not named as the ‘accused’ in the FIR and were not ‘accused of any offence’ till they were arrested and taken into ‘police custody’, well after the recording of their confessions and the alleged seizures based thereon – This lapse on the part of the police is fatal – There are yawning infirmities and gaps in the chain of circumstantial evidence – The degree of proof required to hold appellants guilty beyond reasonable doubt, on the strength of circumstantial evidence, not established – No valid reasons were put forth by the Trial Court and the High Court as to why this case qualified as the ‘rarest of rare cases’, for imposing and sustaining capital punishment – Conviction and sentences of all the appellants on all counts set aside and they are acquitted by giving them the benefit of doubt – Penal Code, 1860 – ss. 302, 364A, 120B, 201. [Paras 22, 27 and 39] Criminal Law – Investigation – Panchnamas and memos: Held: In the present case, the manner and method in which the panchnamas and memos were prepared leave the prosecution high and dry – The witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered, i.e., at whose instance and how – No lawful validity attaches to these proceedings recorded by the police in the context of collection of all this evidence – Code of Criminal Procedure, 1973. [Para 31, 32] Evidence – DNA evidence- hair, source and origin suspected – Non-reliance upon:Held: In the present case, DNA evidence was also relied upon by the prosecution, by projecting a scenario that the deceased had struggled with his assailant and in the course of that scuffle, he managed to pull out some hair from the head of his assailant and they remained in his hand till the discovery of his body – DNA analysis of that hair proved that they were those of one of the appellant, ‘RY’ – However, on facts, this story is found to be bereft of logic – Further, as there is a doubt as to when ‘RY’ was taken by the police and as to whether his hair could have been pulled out by the police while he was in their control, the possibility of such evidence being introduced by the police themselves cannot be ruled out – Thus, as the source and origin of the DNA evidence, viz., the hair, is rendered suspect, the end result of that DNA analysis serves no real purpose in establishing the prosecution’s case. [Para 33] |
