2022 Supreme(SC) 1136

SUPREME COURT OF INDIA
UDAY UMESH LALIT, CJI., S. RAVINDRA BHAT, BELA M. TRIVEDI, JJ.
Rahul – Appellant
Versus
State of Delhi Ministry of Home Affairs and Another – Respondents
Criminal Appeal No. 611 of 2022
WITH
Ravi Kumar – Appellant
Versus
State of NCT of Delhi – Respondent
Criminal Appeal Nos. 612-613 of 2022
WITH
Vinod @ Chhotu – Appellant
Versus
The State Govt. of NCT of Delhi Home Affairs – Respondent
Criminal Appeal Nos. 614-615 of 2022
Decided On : 07-11-2022

IMPORTANT POINTS
(1) Rape and murder – In view of Section 357(A), Cr.P.C., family members of deceased-victim would be entitled to compensation even though accused have been acquitted.
(2) Extra-Judicial confession – Confession before police officer by accused when he is in police custody, cannot be called an extra-judicial confession.
(3) DNA evidence is in nature of opinion evidence and like any other opinion evidence, its probative value varies from case to case.
(4) No conviction should be based merely on apprehension of indictment or condemnation over decision rendered.

Headnote:

(A) Indian Penal Code, 1860 – Sections 365/34, 367/34, 376(2)(g), 302/34 and 201/34 – Indian Evidence Act, 1872 – Sections 25, 27 and 65B read with Section 8 – Criminal Procedure Code, 1973 – Section 357-A – Kidnapping, gang rape, murder and screening of evidence – Common intention – Death sentence – Circumstantial evidence – Neither any T.I. Parade was conducted by investigating officer during course of investigation for identification of accused, nor any of witnesses had identified accused during their respective depositions before Court – Very identity of Appellants -accused having not been duly established, entire case of prosecution falls flat on very first circumstance having not been duly proved by any evidence much less clinching evidence, against Appellants-accused – None of witnesses had seen even registration number of car in which victim was kidnapped – Non-examination of beat constables has created cloud of doubt in story of arrests of the accused – Though, information furnished to Investigating Officer leading to discovery of place of offence would be admissible to the extent indicated in Section 27 read with Section 8 of Evidence Act, but not entire disclosure statement in nature of confession recorded by police officer – Prosecution had also not proved by cogent evidence that broken piece of bumper lying near the dead body of the victim was of red coloured car seized from accused – Call details record of Phone being electronic record was also not proved in terms of Section 65B of Evidence Act – Neither Trial Court nor High Court has examined underlying basis of findings in DNA reports nor have they examined the fact whether techniques were reliably applied by expert – In absence of such evidence on record, all reports with regard to DNA profiling become highly vulnerable, more particularly when collection and sealing of samples sent for examination were also not free from suspicion – Court is left with no alternative but to acquit accused, though involved in a very heinous crime – Appellants-accused acquitted from charges levelled against them by giving them benefit of doubt – In view of Section 357(A), Cr.P.C., family members of deceased-victim would be entitled to compensation even though accused have been acquitted – Parents of victim would be entitled to compensation by Delhi State Legal Services Authority, as may be permissible in accordance with law. (Paras 20, 22, 23, 25, 26, 28, 32, 33, 36 and 37)

(B) Criminal Law – Circumstantial evidence – There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with innocence of accused and it must be such as to show that within all human probability act must have been done by accused – Circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of accused and such evidence should not only be consistent with guilt of accused but should be inconsistent with his innocence. (Paras 16, 17 and 33)

(C) Indian Evidence Act, 1872 – Sections 25 and 27 – Extra-Judicial confession and disclosure statement – Confession before police officer by accused when he is in police custody, cannot be called an extra-judicial confession – If a confession is made by accused before police and a portion of such confession leads to recovery of any incriminating material, such portion alone would be admissible under Section 27 of Evidence Act, and not entire confessional statements. (Para 25)

(D) Indian Evidence Act, 1872 – Section 45 – DNA Profiling – DNA evidence is in nature of opinion evidence as envisaged under Section 45 and like any other opinion evidence, its probative value varies from case to case. (Para 31)

(E) Criminal Procedure Code, 1973 – Sections 232 and 235 – Acquittal of accused – It may be true that if accused involved in heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to society in general and to family of victim in particular, however law does not permit Courts to punish accused on the basis of moral conviction or on suspicion alone – No conviction should be based merely on apprehension of indictment or condemnation over decision rendered – Every case has to be decided by Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise. (Para 33)

(F) Indian Evidence Act, 1872 – Section 165 – Cross-examination of witness by Judge – Judge is not expected to be a passive umpire but is supposed to actively participate in trial and to question witnesses to reach to a correct conclusion – In instant case, material witnesses examined by prosecution having not been either cross-examined or adequately examined, and trial court also having acted as a passive umpire, Appellants-accused were deprived of their rights to have a fair trial, apart from fact that truth also could not be elicited by trial court. (Paras 34 and 35)

Facts of the case:

Instant appeals arise out of the common judgment and order dated 26.08.2014 passed by High Court of Delhi at New Delhi, in the Death Sentence Reference No. 01/2014 with Criminal Appeal Nos. 563/2014, 726/2014 and 1036/2014, whereby High Court while affirming sentence of death and other sentences imposed on Appellants-accused by Trial Court, had dismissed the criminal appeals filed by Appellants-accused. Trial Court vide the Order dated 19.02.2014 had convicted all the three Appellants-accused for the offences punishable under Sections 365/34, 367/34, 376(2)(g), 302/34 and 201/34 IPC, however had acquitted all three from the charge under Section 377/34 IPC.

Findings of Court:

Court has noticed many glaring lapses having occurred during the course of the trial. It has been noticed from the record that out of the 49 witnesses examined by the prosecution, 10 material witnesses were not cross-examined and many other important witnesses were not adequately cross-examined by defence counsel.

Result : Appeals allowed.