563/2014, 726/2014 and 1036/2014, whereby the High Court while affirming the sentence of death and other sentences imposed on the Appellants-accused by the Additional Sessions Judge, Special Fast Track Court, Dwarka Courts, New Delhi (hereinafter referred to as the ‘Trial Court’) in Sessions Case No 91/2013 had dismissed the criminal appeals filed by the Appellants-accused. To imprisonment for a period of three years with a fine of Rs.10,000/- each for the offence punishable 3 u/s201/34 IPC. On her statement being recorded to the effect that on 09.02.2012 at about 08:45 PM, when she was returning from her job at DLF Gurgaon along with her friends Pooja, Sangeeta and the victim Anamika (name is changed), and when they were walking near the Hanuman Chowk, a red coloured Indica Car came from behind; the driver suddenly applied breaks on reaching near to them; that a boy opened the door of the car and pulled Anamika forcibly inside the car; that there were other three or four boys sitting in the Indica Car.
During the course of interrogation of the accused Rahul by the Inspector Sandeep Gupta, Rahul confessed that he along with his brother Ravi and one Vinod @ Chhotu had kidnapped a girl from Qutub Vihar; had committed rape on her, had killed her and had thrown her dead body in the fields ahead of Jhajjar. Thereafter, inspector Sandeep Gupta alongwith his staff and the two accused Ravi and Vinod left for the search of the dead body of the victim, and found the same lying in the mustard fields, near Karawara Morel, 5 village Rodai, at the instance of the two accused. The hair strands of the deceased which had been preserved by the autopsy doctor were sent to Safdarjung Hospital for examination. The DNA reports were also obtained on the articles seized and sent to the CFSL, New Delhi. The Trial Court after appreciating the evidence on record adduced by the prosecution and by the accused, convicted and sentenced them as stated 7 hereinabove, which has been confirmed by the High Court vide the impugned order. Sirajudeen, appearing for the Appellants-accused and learned ASG Ms. Sonia Mathur and learned Senior Advocate Mr. 8 (iv) The recoveries of articles like broken piece of bumper, wallet and hair strands allegedly recovered from the place where the body of the deceased victim was found, were highly doubtful, as the same were not mentioned by the key witnesses during the course of their respective depositions.
(ii)
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The case against Rahul was proved by the prosecution by examining all material witnesses including the ASI Rajender Singh who had apprehended him, while he was driving red coloured Tata Indica Car in question. (iv) The injuries found on the victim Anamika were possible to have been caused by the jack and spanner found in the car (v) A broken piece of bumper found near the dead body of Anamika was opined to be the piece of bumper of red coloured Indica Car being driven by Rahul. The hair strand recovered from the dead body of Anamika matched with the DNA extracted from the blood sample of the accused Ravi.
Another application was also filed by one Yogita Bhayana to 12 implead her as a party respondent on the ground that she was a support person of the family of the deceased-victim and activist working in the field of providing counselling and succour to sexually abused children in Delhi as well as other states. (3) The female hair strand was found on the rear seat of the aforesaid Tata Indica car and DNA generated from it was found similar to the DNA of the deceased implying that it was the hair of the deceased. (8) A Jack and pana were recovered from the boot of the aforesaid Tata Indica car bearing registration No DL 3C AF 4348, which was having blood spots and DNA generated from the blood spots was found similar to that of the deceased implying that deceased was hit by said Jack and Pana. (14)
The location of mobile phones of the accused Rahul, accused Ravi and the deceased was around Jhajhar, Haryana in the night intervening between 09.2.2012 and 10.2.2012 when the deceased was kidnapped, raped and murdered.” The High Court also believing the same set of circumstances as “ proved ” further noted that the two incriminating circumstances of the DNA of a strand of hair recovered from Anamica’s dead body matching DNA of Ravi and DNA generated from semen spots found on seat cover of the 14 Indica car matching DNA profile of Vinod were overlooked by the Trial Court. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : “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.
State of Maharashtra [(1973) 2 SCC 793 : “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (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 the 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. As per the case of the prosecution, the victim along with PW-1 Pooja Rawat, PW-29 Saraswati and PW-42 Sangeeta was returning home and when she and her friends were walking through Hanuman Chowk, a red-coloured Tata Indica car came from behind and suddenly stopped near them. PW-1
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Pooja Rawat, PW-4 Vikas, PW-29 Saraswati, and PW-42 Sangeeta, none of the said witnesses had identified the accused sitting in the Court during the course of their respective depositions. The PW-8 Kunwar Singh Negi, father of the deceased had stated that his daughter was kidnapped on 09.02.2012 by some unknown persons when she was returning from Gurgaon along with her friends, however, he having not witnessed the incident, also could not identify the accused. Again, turning to the case of prosecution, it appears that after the alleged 19 incident of kidnapping, an information was received by the Police Station Chhawla, New Delhi through call at 21:18 hours on 09.02.2012 to the effect that a girl was kidnapped in a red-coloured Tata Indica Car near Hanuman Chowk, Qutub Vihar, Chhawla. As regards the arrest of the accused-Rahul, PW-12 ASI Rajinder Singh had stated before the Court that the accused-Rahul was seen driving the red Indica Car, and he looked perplexed; when he asked for the documents of the said vehicle, the accused-Rahul could not produce them and therefore he (PW-12) apprehended Rahul and handed over his custody to the SHO 20 at P.S. PW-39/B) before Inspector Sandeep Gupta on the basis of which the other accused Vinod and Ravi were brought to the police station by the beat constables, and they were also arrested at 14:45 and 15:00 hours respectively.
The non-examination of the said beat constables has created a cloud of doubt in the story of the arrests of the accused, as in the further statements, recorded under Section 313 of Cr.P.C., the accused-Rahul had stated that 21 Ravi was lifted from his house, and when he (i.e., Rahul) reached to the police station in the evening to enquire about Ravi, he was arrested and the car was seized. Rewari, Haryana he further stated that thereafter, on the accused Ravi and Vinod having indicated, they all reached to the spot i.e., the field where the dead body of 22 the victim was lying. If a confession is made by the accused before the police, and a portion of such confession leads to the recovery of any incriminating material, such portion alone would be admissible under Section 27 of the Evidence Act, and not the entire confessional statements. Though, the information furnished to the Investigating Officer leading to the discovery of the place of the offence would be admissible to the extent indicated in Section 27 read with Section 8 of the Evidence Act, but not the entire disclosure statement in the nature of confession recorded by the police officer. Further, the seizure memo of the wallet (Exhibit 34/A) mentioned only that one red coloured wallet containing Rs.365 and a list of things was seized.
The recovery of a strand of hair found from the body of the deceased by ASI Balwan Singh as per the Seizure Memo (Exhibit 34/A) is also highly doubtful, inasmuch as the same was allegedly found from the body of the deceased which was lying in the open field for about three days and three nights. Hence, the time of death was also very much significant, however in view of the state in which the dead body was found, the Post-Mortem Report Ex.26/A is also not clear about the timing as to when the death had 26 occurred. The learned Senior Advocates appearing for the appellants have also rightly drawn the attention of the Court to the timings and the manner in which the samples were collected during the course of post-mortem of the deceased, to submit that the PW-48 P1 Sandeep Kumar was present at the hospital when the post-mortem was conducted on 14.02.2012, and therefore there was no reason to collect the samples from the body of the deceased on 16.02.2012. There is no clear evidence as to who was in custody of the said car after its seizure till it was sent to CFSL for examination and as to whether the car was sealed during the said period. The learned Amicus Curiae has also assailed the forensic evidence i.e., the report regarding the DNA Profiling dated 18.04.2012 (Exhibit P-23/1) giving incriminating findings. The relevant extracts of the article are reproduced below: “Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. Mitochondrial DNA (mtDNA) found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance.
Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples. Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison: 1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.
Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case.
The Law Commission of India in its report, observed as follows: “DNA evidence involves comparison between ge netic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue.
Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with 32 DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. Thus, having regard to the totality of circumstances and the evidence on record, it is difficult to hold that the prosecution had proved the guilt of the 33 accused by adducing cogent and clinching evidence.
Case Title: RAHUL Vs. THE STATE OF DELHI MINISTRY OF HOME AFFAIRS (2022 INSC 1176)
Case Number: Crl.A. No.-000611-000611 / 2022
