The Punjab and Haryana High Court has set aside the death sentence awarded to a man for the 2018 murder of a toddler in Hisar district and acquitted him, holding that the prosecution failed to produce legally admissible evidence connecting him to the crime beyond reasonable doubt.

A Division Bench of Justice Anoop Chitkara and Justice Harmeet Singh Deol considered the earliest documented account of the events, a Childline 1098 record made three days before the child's body was found, which named the person beating the child as "Mahabir" and not the accused, Hem Raj. Holding that this variance "goes to the root of the question of identity," the Court faulted both the investigation and the trial court for failing to address it.

"It was incumbent upon the Investigating Officer and their Supervising Officers to have investigated about Mahabir," the Court said, adding that there was "no investigation worth the name" on who Mahabir was, where he lived, or who had spoken to Childline claiming to be the accused's brother.

"It was a bare minimum requirement on their part to have carried out an investigation in this regard to ensure that the person whom they had already arrested was not innocent and that the recoveries that had been effected were not unconnected with the crime. The investigating agency did not even investigate whether 'Mahabir' was an alias of 'Hem Raj' or whether they were the same person," it added.

On June 16, 2018, the headless body of a child of about two and a half years was found in a fallow agricultural field in village Gaibipur, District Hisar, with the severed skull, bone fragments and bloodstained clothes lying nearby. An FIR was registered at Police Station Barwala under Sections 302 and 201 IPC.

On June 19, 2018, the child's mother gave a statement under Section 164 CrPC before a Judicial Magistrate, alleging that on the night of June 13, 2018, Hem Raj, with whom she had been living since April 2018, killed the child by slamming him onto the road and striking him with a kassi (hoe), and threatened her into silence. Hem Raj was arrested on June 20, and the police claimed that, following his disclosure statements, he identified the child's clothes and led them to the kassi in a field near the spot.

By judgment dated March 7, 2022, the trial court convicted Hem Raj under Sections 302 and 201 IPC, and on March 14, 2022, sentenced him to death for murder and to seven years' rigorous imprisonment with a fine of Rs 10,000 for destruction of evidence. The trial court sent a reference for confirmation of the death sentence, and Hem Raj filed an appeal.

Identity of the body not proved beyond reasonable doubt

The Court held that, apart from the clothes, there was no evidence to identify the body as that of the missing child. Several witnesses, including the forensic expert who examined the scene, testified that the body was not identifiable. The doctor who conducted the post-mortem recorded that only the lower portion of the body was present, and that the head, neck, upper limbs and most of the chest were missing.

The Court noted a material discrepancy in the mother's deposition. The English version recorded that she identified her son's clothes, but the Hindi version, the language in which she testified, said only that she identified her son. Relying on the Supreme Court's decision in Naim Ahamed v. State (NCT of Delhi), the Bench reiterated that where a question arises about what a witness actually said, it is the original deposition, not the translated version, that must be taken into account.

The clothes were never shown to the mother at trial for identification, even though she was the most competent witness to say her son was wearing them when he went missing. The Court also noted that the trial judge did not exercise the power under Section 165 of the Evidence Act to put the clothes to her.

DNA testing failed as well, with the forensic laboratory reporting that no profile could be obtained from the bone sample, so the mother's blood sample could not be compared. Noting that the child was the only one found missing in the area, the Court held that the body was "most probably" his, but that this could not be said with certainty.

Identification of clothes by accused in custody inadmissible

The Court held that the accused's identification of the child's clothes while in police custody amounted to a confession barred by Section 26 of the Evidence Act, and that the memo and the police officials' testimony on it "lack legal sanctity."

It also held that the burden under Section 106 of the Evidence Act did not shift to the accused merely because the child had been living with him, since the quality and uncertainty of the prosecution's evidence did not establish a prima facie case calling for his explanation.

Mother's Section 164 statement not substantive evidence=

At trial, the mother turned hostile. She admitted that she had made the Section 164 statement but said it was given under threat from her relatives, and she denied that Hem Raj had killed her son in her presence. The Court noted that, given the Magistrate's unrebutted testimony that she was not under pressure, it could not be said the earlier statement was made under duress.

Even so, the Court held that a Section 164 statement is not substantive evidence and can only be used to corroborate or contradict a witness. It noted that testimony on oath at trial, given in the presence of the accused and subject to cross-examination, "stands on the highest pedestal," and that a hostile witness's testimony is not wholly effaced. Since the mother's substantive evidence at trial absolved the accused, the Court held it would be perilous to rely on her earlier statement while ignoring her deposition only because it did not support the prosecution.

Disclosure statement "appears to be fabricated"

According to the police, Hem Raj made a first disclosure statement at the police station saying the kassi was hidden near Faridabad, and then, while being taken there, made a second disclosure at Bahadurgarh saying it was in the field near the crime spot. The investigating officers testified that this second statement was signed at Bahadurgarh, after which they returned.

The Court found that this statement was a computer-typed, printed document, and that the prosecution offered no explanation of how it was typed and printed on the roadside, with no claim that the police were carrying a laptop and printer or that it was prepared at a nearby office. "Consequently, Ext P-6 appears to be fabricated," the Court held, concluding that the making of the statement stood disproved.

The Court also held that the accused pointing out the crime spot had no evidentiary value since the spot was already known to the police and villagers. Relying on the Supreme Court's recent ruling in Sahab Singh v. State of Haryana, it reiterated that there can be no discovery of an already discovered fact.

Disclosure inconsistent with condition of the body

The Court further held that even if the disclosure statements were treated as admissible, they contradicted the physical evidence. The statements claimed the body was cut into two with the kassi and buried, but the body was found lying in an open field, not buried, and there was no mention of a dug-up pit, drag marks or mud on the body's cut surfaces. The Court noted that the lower body was almost intact with no animal bites on exposed parts, which suggested the body had been placed in the field only shortly before it was found, rather than lying there since June 13.

As for the kassi, the field owner was not associated with its recovery, the origin of the blood on it could not be determined because the material had disintegrated, and it was never shown to the doctor who conducted the post-mortem to ask whether it could have caused the injuries. The Court called the last omission "a serious lapse."

Six-fold test for Section 27 disclosures

Referring the case laws on Section 27 of the Evidence Act, the Bench restated a six-fold test that a disclosure and discovery must pass before courts examine whether its contents were proved. The disclosure must be made by a person already arraigned as an accused for that offence, who must be in custody for that offence when making it. It must be made voluntarily, without compulsion, coercion, threats, inducement or deception. The information must disclose a fact relevant to the crime and must be distinctly connected with the fact discovered, and the fact discovered must not already have been known. The Court held that the disclosures, the recovery of the kassi and its connection to the crime did not satisfy these requirements.

The Childline record and the Sarpanch's testimony

The village Sarpanch testified that on the night of June 13, 2018, the accused's family members came to his house and told him Hem Raj and the mother were drowning the child, after which he called Childline 1098. The Court held that his version of drowning was falsified by the scientific evidence, since diatoms were not found in the child's remains and the doctor attributed death to head injury from skull fractures. It also found a material contradiction between his two depositions, as he first named five family members who visited him that night and later said only one family member came.

The Court held that the Sarpanch's account of the beating was hearsay since he had not witnessed it. However, it held that his phone call to Childline at about 9:32 pm on June 13, proved through call detail records and Childline's own record, was admissible as part of the same transaction under Section 6 of the Evidence Act.

That Childline record, sent to the police in response to a notice, stated that the caller reported a man named "Mahabir," whose caste was also specified, beating a woman and her child named Siva. The Court noted that the names do not sound alike and there was no suggestion that a poor connection caused the error. It held the record relevant under Section 9 of the Evidence Act, since naming a different person "rebuts the inference" that Hem Raj committed the murder.

Applying the maxim that the spoken word flies while the written word remains, the Court held, "A contemporaneous written record that remains unimpeached must take precedence over a subsequent oral assertion that departs from it."

The Court also noted that the Sarpanch claimed to have given Childline the phone number of the accused's brother the next morning, but at trial said he did not have that number. It observed that "in all likelihood" the Sarpanch had manipulated the call and supplied another number to mislead Childline, and that no evidence was collected on who the number belonged to. The Court pointed out that although the defence had specifically argued before the trial court that no evidence showed Mahabir and Hem Raj were the same person, the trial court's judgment did not address the submission.

Defence witnesses and good character

Reiterating that defence witnesses are entitled to equal treatment with prosecution witnesses, the Court held that the testimony of the accused's brother and a neighbour, that Hem Raj was good-natured and fond of the child, was relevant under Section 53 of the Evidence Act and rendered the prosecution's case of ill-treatment highly improbable. However, it declined to read their claim that the Sarpanch had falsely implicated the family over an election grudge, since this was never put to the Sarpanch in cross-examination.

The Court also found the accused's examination under Section 313 CrPC defective, as the entire evidence was put to him in two omnibus questions. It held that no further discussion was needed since the evidence did not establish guilt in any event.

"Time buries the truth"

Before concluding, the Court flagged that the investigation never explained, the scalp was missing from the skull, the upper torso and arms were never recovered, and yet the lower body was largely intact. It observed that the investigation should have ruled out other possibilities. Describing the case as "a gruesome murder of an innocent child," it remarked that truth, once buried, "mostly decays while in slumber," and that its recovery depends on whether systems are protected against mediocrity.

Holding that the impugned judgment "either failed to address material contradictions or addressed them improperly," the Court acquitted Hem Raj of all charges, dismissed the murder reference as infructuous, and directed his immediate release on furnishing a personal bond under Section 481 BNSS, without sureties.

Appearance: Mr. Rahul Mohan, Additional AG, Mr. Karan Sharma and Mr. Shiva Khurmi, Deputy AGs, and Mr. Yuvraj Shandilya, Assistant AG, Haryana, for the State. Mr. Partap Singh, Mr. Kulwant Singh Dhanora, Ms. Kritika Mandhan, Mr. Manav Sharma, Ms. Harshita Sanghwan and Mr. Harsh, Advocates for the appellant/convict. Mr. G.S. Punia, Senior Advocate with Ms. Harveen Kaur, Mr. Sanjeev Sharma and Mr. T.P.S. Bawa, Advocates, as Amicus Curiae.