Uttaranchal High Court: In the connected appeals preferred under Section 374(2), Criminal Procedure Code, 1973 (CrPC) challenging the common judgment dated 18 February 2019 passed by the Additional Sessions Judge, Haldwani (trial court) where by both appellants were convicted under Sections 363, 366-A, 376(2)(l), and 376-D, Penal Code, 1860 (IPC), the Division Bench comprising of Ashish Naithani* and Ravindra Maithani, JJ.,set aside Appellant 2’s convictions under Sections 376(2)(l) and 376-D IPC, set aside Appellant 1’s convictions under Sections 376(2)(l), 376-D, and 366-A IPC and affirmed the conviction under Section 363 IPC. The Court held that the evidentiary value of the forensic evidence does not rest solely upon the scientific conclusions but equally upon the sanctity, continuity, and transparency of the chain through which such forensic exhibits pass and any unexplained break or infirmity in this chain would have the potential to erode the reliability of the scientific opinion.
Background:
The prosecution case commenced with a missing report lodged on 8 March 2018 by the victim’s brother stating that the victim, described as a 13-year-old girl suffering from intellectual disability and speech difficulty, had gone missing on 7 March 2018 at about 4:00 p.m.
After being found the next evening, it was discovered by her blood-stained pyjamas, injury marks and signs and gestures made by her that she had been sexually and physically assaulted. In a CCTV footage, one of the Appellants was seen with her the night she went missing so the FIR was filed and the medical examination of the victim was conducted. The Medical report neither confirmed rape nor ruled out its possibility.
As per the Forensic report, one of the Appellant’s DNA matched whereas the other’s did not. On the basis of the overall evidence on record, the trial court convicted the appellants under Sections 363, 366-A, 376(2)(l), and 376-D IPC Assailing the same, the present appeal was filed by the appellants.
Observations and Decision:
The Court observed that in the medical examination, which was conducted after 3 days from the incident, the victim could not respond to the questions related to sexual violence due to her intellectual disability and speech difficulty. The medical findings suggested sexual activity but no definite conclusion regarding rape could be drawn.
The Court went on to examine the reliability of the chain of custody in respect of the forensic exhibits stating that such infirmities do not render the whole forensic evidence inadmissible, however convictions should not be solely based on such material. The Court went on to state,
“The evidentiary value of forensic material does not rest solely upon the scientific conclusions drawn by the Forensic Science Laboratory, but equally upon the sanctity, continuity, and transparency of the chain through which such exhibits pass, commencing from the point of collection and culminating in forensic examination. Any unexplained break or infirmity in this chain would have the potential to erode the reliability of the scientific opinion.”
Due to absence of a complete and demonstrable chain of custody of forensic evidence and anomalies therein, the Court held that the forensic findings cannot be treated as conclusive in itself and must be evaluated as corroborative. Since the prosecution relied solely upon forensic and medical evidence and the foundational requirement of an unbroken and duly proved chain of custody of the incriminating exhibits was not established, the possibility of tampering, substitution or contamination could not be ruled out. Circumstances raised grave suspicion but the evidentiary requirement to sustain conviction under Section 376 was not met. Thus, the Court held that without any evidentiary sanctity, the appellant cannot be convicted on the basis of such evidence as conviction must rest on legally proved evidence and not suspicion.
In the case of Appellant 1, against whom CCTV footage was available, the forensic evidence unequivocally excluded him from the act of sexual assault, so the charges of rape or aggravated rape were not proved against him but the electronic evidence (CCTV) proved offence of kidnapping from lawful guardianship under Sections 361 and 363 IPC against him.
The Court further held that although the victim was found to be biologically major, but due to her condition was incapable of giving consent and the protection under Section 361 IPC is not confined to minors alone but extends to persons who, by reason of mental unsoundness or intellectual disability, are incapable of safeguarding their own interests and remain under the care and protection of a guardian. Therefore, Appellant 2 was only found to be culpable for the offence of kidnapping from lawful guardianship.
The Court asserted that “Criminal law mandates that a conviction must rest on legally proved evidence and not on suspicion, however strong.” The Court categorically held that “the circumstance of last seen… cannot substitute for proof of sexual assault.”
Conclusively, Appellant 1’s conviction was modified and the Appellant 2 was acquitted of the charges.
*Judgment authored by: Justice Ashish Naithani
Advocates who appeared in this case:
For Appellants: Mahavir Kohli, Asif Ali
For Respondents: J.S.Virk, Deputy Advocate General for State
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
