While acquitting a man convicted of raping and murdering his six-year-old maternal niece, the Supreme Court on Thursday (October 1) held that the conviction cannot be recorded solely based on defence statements under Section 313 Cr.P.C. / Section 351 BNSS when the prosecution otherwise failed to prove the guilt of the accused beyond a reasonable doubt.

In other words, the accused's answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Only when the accused fails to furnish any explanation of the incriminating materials established against him, an adverse inference can be drawn against him, the Court said.

A bench of Justice Ujjal Bhuyan and Justice Atul S. Chandurkar set aside the conviction of a man in an alleged offence of a rape and murder of a minor girl, who was sentenced to a life imprisonment, after noting that the accused's responses under Section 313 Cr.P.C. formed the basis for the conviction, despite other circumstantial evidence found unsatisfactory to prove his guilt beyond a reasonable doubt.

The Court held that a mere finding that an accused's responses to the prosecution's questions under Section 313 Cr.P.C. are unsatisfactory would not amount to a failure of the accused to furnish any explanation under Section 313.

“…when it is found that the chain of circumstances relied upon by the prosecution is not complete and that the same does not inspire confidence for its acceptance, the response of the appellant recorded in his statement under Section 313 of the Code cannot be a circumstance against him, especially when other circumstantial evidence is not found to be satisfactory pointing out to the guilt of the appellant alone and none other.”, the Court observed, relying on Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan 2013 INSC 313.

In essence, the Section 313 statement could not be used as an additional link because the chain itself had never been established through independent prosecution evidence, the Court said, after finding that the accused never failed to explain any incriminating circumstance against him.

“…we do not find that there has been any failure on his part to explain any incriminating circumstance against him. It has to be borne in mind that only if an accused fails to offer reasonable explanation in discharge of burden placed on him in a case resting on circumstantial evidence, the same would provide an additional link in the chain of circumstances proved against him. Thus, the appellant's silence or failure to provide any reasonable explanation can merely act as an additional link that would complete the chain.”, the Court said.

Apart from the aforesaid factor, several other factors such as the unproved last seen theory, the non-conclusive DNA and FSL reports, and irrelevant recovery evidence under Section 27 of the Evidence Act also formed the Court's decision to acquit the Appellant.

“…we find that the evidence led by the prosecution is woefully short of pointing to the guilt of the appellant. The witnesses examined were not sure as to whether the appellant was last seen with the victim, as they had their own doubts in that regard. The discovery effected under Section 27 of the Act of 1872 was from a place that was ordinarily visible to others, thus, requiring such discovery to be considered with caution. The DNA report in clear terms refers to the bone extracts being of male origin while the victim was a female. The said bones naturally did not match with the blood samples of the victim's mother and sister. The report from the FSL also does not take the case of the prosecution any further. There is a doubt created as to whether the brown shawl claimed by the prosecution to be brought by the appellant from his mother was the same as the appellant's mother had denied that it belonged to her. Therefore, the appellant's statement under Section 313 of the Code cannot be taken as an additional link in the chain of circumstances. In other words, the chain of circumstances has not been formed on the basis of the prosecution evidence. The Sessions Court, in our view, failed to notice these material factors that were very much available on record. It, therefore, erred in convicting the appellant on the basis of circumstantial evidence. The High Court too failed to notice all these infirmities in the case of the prosecution. The guilt of the appellant has not been established beyond reasonable doubt. A strong doubt about his involvement in the offence is created in view of the prosecution evidence. It is also true that the victim met an unfortunate end. However, on the basis of such material on record, it would hardly be justifiable to convict the appellant for the same when none of the circumstances point towards his involvement. In the circumstances, he has to be given the benefit of doubt.”, the Court said.

As a result, the appeal was allowed.

Headnote

Criminal Law – Circumstantial Evidence – Golden Principles – Chain of Circumstances – Benefit of Doubt - In cases resting solely on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn must be fully established, conclusive in nature, consistent only with the hypothesis of guilt, and must exclude every other hypothesis - Suspicion or conjecture cannot take the place of legal proof - Where the chain of circumstances is broken at multiple places and the evidence is woefully short of establishing guilt beyond reasonable doubt, the accused is entitled to the benefit of doubt and acquittal. [Relied On Hanumant v. State of Madhya Pradesh, 1952 INSC 41; Reg v. Hodge, (1838) 2 Lew. 227; Paras 6, 7, 10, 11]

Criminal Jurisprudence – "Last Seen" Theory – Applicability – Long Time-Gap - The "last seen" theory comes into play only when the time gap between the point when the accused and deceased were last seen alive and when the deceased is found dead is so minimal that the possibility of any person other than the accused being the author of the crime becomes impossible - When there is a prolonged gap of several months (in this case, six months between the date the victim went missing and the alleged recovery of skeletal remains) and prosecution witnesses themselves express doubt as to whether the accused and the victim left the house together, it is hazardous to convict the accused on the basis of the "last seen" circumstance alone. [Relied On State of U.P. v. Satish (2005) 3 SCC 114; Paras 9(a)(i) (v), 10].

Indian Evidence Act, 1872 – Section 27 – Recovery/Discovery of Incriminating Articles – Evidentiary Value of Recovery from a Place Ordinarily Visible to Others - While Section 27 does not render a recovery inadmissible merely because the place was open or accessible to others, the crucial legal question is whether the place was ordinarily visible to others - Where recovery of articles is effected from an open area frequented by villagers for cattle grazing and collecting fodder, and the articles were in a spot that could be easily seen by any passerby, the reliability of such discovery becomes highly suspect and must be examined with great caution. [Relied on State of Himachal Pradesh v. Jeet SinghParas (1999) 4 SCC 370, Paras 9, 10].

Code of Criminal Procedure, 1973 (CrPC) – Section 313 – Scope and Object – Evidentiary Value – Silence or Inculpatory Answers Cannot Fill Gaps in Prosecution Case - A statement under Section 313 CrPC is recorded in adherence to principles of natural justice to afford the accused an opportunity to furnish an explanation of incriminating circumstances - It is not a substantive piece of evidence and cannot be made the sole basis of conviction, nor can it be used by the court to fill in lacunae or missing links in the prosecution's evidence - An adverse inference or reliance on the accused's explanation/silence can only arise as an additional link if and only if the incriminating circumstantial evidence has already been fully established by the prosecution - The accused has a constitutional and statutory right to remain silent and cannot be forced to become a witness against himself. [Relied on Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan (2013) 5 SCC 722; State of Rajasthan v. Kashi Ram (2006) 12 SCC 254; Paras 9(f)(i)–(ii), 10].

Expert Evidence – DNA and Forensic Evidence – Negative Report Exonerating Accused - Where the forensic DNA report shows that the recovered bones were of male origin and did not match the biological samples of the deceased female child's mother and sister, and FSL analysis failed to detect human remains or confirm the origin/grouping of blood on recovered articles, such scientific evidence completely negatives the prosecution hypothesis linking the accused to the alleged murder. Conviction set aside. [Paras 9(c)(i)–(iii), 9(d)(i), 10, 11].

Appearance:

For Appellant(s) : Ms. Sangeeta Kumar- 725, AOR Ms. Vidushi Garg, Adv.

For Respondent(s) : Mr. Sameer Abhyankar, AOR Mr. Krishna Rastogi, Adv. Mr. Aryan Srivastava, Adv. Mr. Aakash Thakur, Adv.