The Supreme Court has acquitted a man convicted of murder, holding that WhatsApp messages allegedly linking him to the crime could not sustain his conviction when the purported sender denied sending them and the prosecution witnesses did not support the prosecution's account of the incident.

A bench of Justice Manoj Misra and Justice Vijay Bishnoi heard the case, where the accused was convicted, inter-alia, based on a WhatsApp chat between two prosecution witnesses in which the accused was said to be responsible for the murder of his deceased friend. The chat disclosed the alleged role of the accused in the commission of the crime, stating that a fight had taken place between the accused and the deceased before his death. However, neither the sender nor the receiver had witnessed the alleged incriminating role of the accused, which was necessary to make the texting relevant.

“…the exchange of message between PW-5 and PW-6 does not prove that on the fateful night the deceased was present in the house of the accused and that the accused had assaulted the deceased, it, at best, creates a suspicion against the accused-appellant which by itself is not sufficient to sustain conviction.”, the Court said.

The Court declined to treat the texting as an exception to hearsay evidence under Section 6 of the Evidence Act so as to make it a relevant piece of evidence. For Section 6 to apply, it would have to be proved that the fact of texting the message was so connected with the crime as to form part of the same transaction. Since the timing of the death could not be ascertained, the Court held the texting to be irrelevant.

“Here the time of death has not been fixed by any substantive evidence, therefore, it is difficult to ascertain whether the message was texted at or about the time of occurrence so as to be part of the same transaction.”, the Court said.

The prosecution's case was that the deceased was found lying dead in an open field on February 9, 2019 with a motorcycle around him tied with a rope. The autopsy report suggested the homicidal death, following which an FIR was lodged against the unknown persons.

During investigation, police seized the mobile phones of two prosecuting witnesses i.e., PW-5 and PW-6. Forensic analysis revealed that a WhatsApp message was sent from PW-5's phone to PW-6's phone on the night of February 7-8, 2019, suggesting the appellant's involvement in the murder and referring to a fight between the appellant and the deceased.

Moreover, based on the accused's disclosure statement, police recovered an iron rod and a screwdriver from his house, along with a blood-stained shirt and blood-stained soil.

The appellant was charged under Sections 302 and 201 IPC and was convicted by the Sessions Court. Aggrieved by the High Court's decision to sustain his conviction, the accused moved to the Supreme Court challenging his conviction.

Before the Supreme Court, the accused argued that the conviction cannot be sustained based on texting when both the prosecution witnesses turned hostile, thereby denying texting to each other regarding the accused's alleged involvement in the crime.

Finding force in the accused's submissions, the judgment authored by Justice Misra observed that the prosecution tried to shift the entire weight on the texting to prove the conviction, when the entire prosecution case rested on the circumstantial evidence.

The Court noted that the exchange of messages between the PWs-5 and 6 was immaterial, given that both the witnesses denied seeing the accused with the deceased having a fight/quarrel. Moreover, the Court noted that, assuming that the exchange of messages is a relevant fact under Section 7 of the Evidence Act (Facts which are the occasion, cause or effect of facts in issue), the same would be irrelevant as both the witnesses denied exchanging messages.

“Assuming that texting is admissible under Section 7, it only indicates that on the fateful night a message had gone from PW-5's mobile to PW-6. Whether that information was based on PW-5's personal knowledge or on hearsay, or assumptions, would depend on his deposition in Court. PW-5 and PW-6 both made a statement that they have not witnessed the incident. PW-5 goes to the extent of saying that he has not sent the message. In such circumstances, who was the author of that message; whether that message was sent on the basis of personal knowledge of the person who sent the message or it was based on hearsay information received by its author, are all questions of which there is no answer.”, the Court said.

Apart from the unreliability of the messages, the Court also found that the chain of circumstantial evidence was incomplete, the DNA evidence was missing, and the possibility of an accident could not be ruled out.

“In so far as the recovery of blood-stained soil from the house of the appellant is concerned, this is an incriminating circumstance which has been denied by the accused. Besides, one of the witnesses of the seizure makes a statement that there was recovery only from one spot and that is the place where the dead body was found. Admittedly, the dead body was found in an open field, and not in the house of the accused. Whether the bloodstained soil was recovered from the house/ room of the accused or was recovered from the open field is an aspect on which one of the witnesses of the seizure memo has created a doubt. Additionally, the blood-stains could not be connected to the deceased and, admittedly, there is no DNA profile of the blood so recovered to match it with the DNA profile of the deceased. Same is the case with the iron rod and the screwdriver.”, the Court said.

As a result, the appeal was allowed, and the conviction was set aside.

Appearance:

Mr. Yasharth Kant, Adv. for the appellant-accused

Ms. Ankita Sharma, Adv. for the respondent-State