2025 INSC 1203 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 3633 -3634 OF 2024

DASHWANTH ...APPELLANT(S)

VERSUS

STATE OF TAMIL NADU ...RESPONDENT(S)

J U D G M E N T

Mehta, J.

1. Heard.

2. The appellant herein was tried by the learned

Sessions Judge, Mahila Court, Chengalpet

1 in

Special Sessions Case No. 33 of 2017 for the offences

punishable under Sections 363, 366, 354 -B, 302,

and 201 of the Indian Penal Code, 1860

2 and Section

8 read with Section 7 and Section 6 read with Section

5(m) of the Protection of Children from Sexual

Offences Act, 2012

3. The trial Court, vide judgment

of conviction and order of sentence dated 19

th

1

Hereinafter, referred to as ‘trial Court’.

2

For short, ‘IPC’.

3

For short, ‘POCSO Act’.

2

February, 2018 convicted the accused-appellant

4 for

the aforementioned offences and sentenced him in

the terms indicated below: -

Section Sentence

S. 363 IPC 7 years

S. 366 IPC 10 years

S. 354-B IPC 7 years

S. 201 IPC 7 years

S. 302 IPC Death Penalty

S. 6 r/w S. 5 (m) of POCSO Act 10 years

S. 8 r/w S. 7 of POCSO Act 5 years

3. Being aggrieved, the appellant preferred an

appeal

5 before the High Court of Judicature at

Madras

6 for assailing his conviction and the

sentences awarded to him. The trial Court also

forwarded a reference

7 under Section 366 of the Code

of Criminal Procedure, 1973

8 for confirmation of the

death sentence. The learned Division Bench of the

High Court vide common judgment dated 10

th July,

2018, dismissed the appeal preferred by the

appellant and answered the reference in the

4

Hereinafter, referred to as ‘appellant’.

5

Criminal Appeal No. 234 of 2018.

6

Hereinafter, referred to as ‘High Court’.

7

Referred Trial No. 1 of 2018.

8

Hereinafter, referred to as ‘CrPC’.

3

affirmative thereby confirming the death sentence

awarded to the appellant by the trial Court. The said

judgment of the High Court is the subject matter of

challenge in these appeals by special leave.

FACTUAL MATRIX: -

4. In brief, the story of the prosecution is that a

seven-year old female child victim

9, being the

daughter of C.S.D. Babu (PW-1)

10 and Sridevi (PW-2),

went missing on 5

th February, 2017. The parents had

gone out shopping, and when they returned at about

7:15 p.m., they did not see their daughter around,

upon which a search was made with the help of the

neighbours including the appellant. The police were

also informed, but the efforts to trace out the child

did not yield any results. The hapless father, C.S.D.

Babu (PW-1) filed a complaint

11 at Mangadu Police

Station at around 10:00 p.m. on 5

th February, 2017

itself and based upon the same, a missing persons’

case was registered. The complainant (PW-1), in his

efforts to get clues about the whereabouts of his

child, claims to have browsed video footage of a CCTV

9

Hereinafter, referred to as ‘victim’ or ‘child victim’.

10

Hereinafter, referred to as ‘complainant (PW-1)’.

11

Exhibit P-1

4

camera installed at a nearby temple which gave an

indication as to the manner in which the child victim

might have been kidnapped. The police also followed

the lead provided by the complainant (PW-1) and

went through the CCTV footage after which the

needle of suspicion turned towards the appellant.

5. Based on this suspicion, the appellant was

arrested on 8

th February, 2017 at about 9 a.m. He

allegedly confessed and made a disclosure

statement

12 to N. Ravikumar, 1

st Investigation Officer

(PW-29)

13 in the presence of Sumathi (PW-7), Village

Administrative Officer, Madanandhapuram Village,

and Mohandass (PW-8) who is the assistant of PW-7.

6. The Investigating Officer (PW-29) claims that

the charred body of the child victim was recovered on

8

th February, 2017 in furtherance of the disclosure

statement made by the appellant. The body was

identified by Muneesekar (PW-14), the Administrative

Officer of the school where the victim was studying.

Based on the said recovery of the victim’s body, the

missing persons’ case was converted to a crime

12

Exhibit P-8.

13

Hereinafter, referred to as ‘Investigation Officer (PW-29)’.

5

report

14 for the offences punishable under Sections

302, 201, 363, 366 and 354-B of the IPC and Section

8 read with Section 7 and Section 6 read with Section

5(m) of the POCSO Act. The disclosure statement of

the appellant further led to the recovery of an Apache

motorcycle and a Oppo mobile phone. The

Investigation Officer (PW-29) prepared an observation

mahazar

15 and a rough site sketch

16 of the place from

where the body of the victim was recovered. The

appellant also identified the blue-coloured travel

bag

17 in which undergarments

18 worn by the victim

and two cold drink bottles

19 were placed. Forensic

material was collected from the dead body of the

victim and the crime scene.

7. Thereafter, the appellant allegedly took the

police to his flat which was located on the second

floor of the very same building in which the

complainant (PW-1) also resided and pointed out the

place where the victim had been subjected to sexual

abuse and later, murdered. The Investigation Officer

14

FIR bearing Crime No. 285 of 2017.

15

Exhibit P-4.

16

Exhibit P-35.

17

Material Object No. 6.

18

Material Object No. 1.

19

Material Object No. 11.

6

(PW-29) prepared the observation mahazar

20 and site

inspection plan

21 of the said flat. The jeans pant

22 and

t-shirt

23 allegedly worn by the appellant at the time

of commission of the offence were recovered from the

flat and the earrings

24 and anklets

25 of the victim

along with the ATM card

26, PAN card

27, and identity

card

28 of the appellant were also recovered from his

purse

29 during this sequence. Recovery of a helmet

30

was also effected, based on the interrogation

conducted from the appellant.

8. After the completion of the inquest proceedings,

the child’s body was forwarded to the Kilpauk

Medical College and Hospital, Chennai for post -

mortem examination. The body of the victim was

subjected to post-mortem by Dr. Karthika Devi (PW-

16), medical officer, attached with the Kilpauk

Medical College and Hospital, Chennai. The medical

20

Exhibit P-6.

21

Exhibit P-36.

22

Material Object No. 12.

23

Material Object No. 13.

24

Material Object No. 2.

25

Material Object No. 3.

26

Material Object No. 16.

27

Material Object No. 17.

28

Material Object No. 18.

29

Material Object No. 14.

30

Material Object No. 19.

7

officer noticed that the body of the victim was charred

and there were bruises over the lower lip. The lower

incisor teeth were loosened with bruises around the

surrounding area. The thigh bones collected from the

dead body were forwarded for DNA analysis, and the

skull was forwarded for superimposition so as to

ascertain the identity of the victim. Since the body

was completely charred, the medical officer expressed

inability to give a definite opinion regarding the exact

cause of her death. However, on queries raised by the

Investigation Officer (PW-29), the medical officer gave

an opinion that death by smothering could not be

ruled out. The appellant was subjected to medical

examination on 13

th February, 2017.

9. The

Investigating Officer (PW-29) examined

Santosh Kumar (PW-18), who had purportedly sold

petrol to the appellant which he carried in the two

bottles

31 recovered from the blue bag

32. The witness

provided information regarding the appellant making

payment through a credit card and based on the said

31

Supra Note 19.

32

Supra Note 17.

8

statement, the credit card slip pertaining to the

purchase of petrol by the appellant was also seized.

10. Upon carrying out the scientific procedure of

superimposition and DNA examination, it was

concluded that the body was of none other than that

of the victim, daughter of C.S.D. Babu (PW-1) and

Sridevi (PW-2).

11. The Investigating Officer (PW -29) was

transferred and thus further investigation of the case

was assigned to R.D. Vivekanandan, 2

nd Investigation

Officer (PW-30)

33 who completed the investigation

and filed a chargesheet against the appellant for the

offences punishable under Sections 363, 366, 354-B,

302 and 201 of the IPC and Section 8 read with

Section 7 and Section 6 read with Section 5(m) of the

POCSO Act in the trial court.

12. The trial Court framed charges against the

appellant for the aforementioned offences, to which

he pleaded not guilty and claimed trial. The

prosecution examined 30 witnesses and exhibited 45

33

Hereinafter, referred to as ‘Investigation Officer (PW-30)’.

9

documents and 19 material objects in order to prove

its case.

13. By resorting to the procedure under Section 313

CrPC, the appellant was questioned and confronted

with the incriminating circumstances appearing

against him in the case put up by the prosecution.

He refuted these allegations and claimed to have been

falsely implicated. A written statement was filed on

behalf of the appellant under Section 315 CrPC.

However, neither any oral evidence was led, nor any

document was exhibited on his behalf in defence. The

plea taken by the appellant in the written statement

was that he returned from his office on 7

th February,

2017 at about 5:00 a.m. On the same day, the police

officials came to his house at about 7:30 a.m. and

questioned him and his family members for about 30

minutes. Thereafter, between 11:00 a.m. and 12

noon, an inspector came to his house and took him

to the police station where, he was kept confined and

was forced to sign blank papers and was then

remanded to judicial custody.

14. The trial Court upon appreciating the

arguments advanced by the Public Prosecutor and

10

the defence counsel and upon analysing the oral and

documentary evidence available on record, found the

appellant guilty for the charges framed under

Sections 302, 201, 363, 366 and 354-B of the IPC

and Section 8 read with Section 7 and Section 6 read

with Section 5(m) of the POCSO Act and sentenced

him as noted above, vide judgment of conviction and

order of sentence dated 19

th February, 2017.

15. Being aggrieved, the appellant preferred an

appeal under Section 374(2) CrPC to the High Court

challenging his conviction and sentences awarded to

him whereas, a reference was forwarded by the trial

Court under Section 366 CrPC to the High Court, for

confirmation of the death sentence awarded to the

appellant. The appeal filed by the appellant was

rejected and the reference was answered in the

affirmative by the High Court vide common judgment

dated 10

th July, 2018 which is the subject matter of

challenge in the present appeals by special leave.

SUBMISSIONS ON BEHALF OF THE APPELLANT: -

16. Learned counsel for the appellant, vehemently

and fervently contended that the entire case of the

11

prosecution is false and fabricated. The prosecution

story is full of improbabilities and loopholes. The

evidence of the material prosecution witnesses is

flimsy and does not inspire confidence. The conduct

of the witnesses is highly suspicious which makes

their testimony doubtful and unworthy of credence.

The conduct of Murugan @ Venkata Murugan Guna

(PW-3)

34, the alleged witness of the last seen together

circumstance, is highly unnatural inasmuch as, in

spite of claiming to have seen the victim playing with

the appellant on the second floor of the same building

where the complainant (PW-1) used to reside, he

never divulged the said fact either to the father of the

victim or to the police officers, who had reached the

area soon after the victim was reported missing. It is

the admitted case of the prosecution that after the

parents of the victim raised a hue and cry regarding

their daughter having gone missing, an extensive

search operation was launched. The appellant also

participated in the search efforts, and he remained

with the search party till 4:00 a.m. in the morning of

6

th February, 2017. It was, thus, submitted that the

34

Hereinafter, referred to as ‘Murugan (PW-3)’.

12

evidence of Murugan (PW-3), the sole witness of the

last seen together circumstance cannot be relied

upon.

17. Learned counsel for the appellant contended

that Murugan (PW-3), the self-proclaimed witness of

last seen together circumstance claimed that he had

seen the victim playing with the appellant on the

second floor of the building. Had there been an iota

of truth in this version then in the natural course of

events, he would have immediately disclosed this fact

to the parents of the victim, and an immediate

attempt would have been made to search the second

floor of the building including the flat of the

appellant. However, no such effort was made by the

search party or the police officers which completely

discredits the theory put forth by Murugan (PW-3)

that he had seen the victim in the company of the

appellant soon before her disappearance.

18. It was further submitted that the recoveries

allegedly made at the instance of the appellant were

planted and fabricated and hence, unbelievable. The

appellant was apprehended by police officials on 7

th

February, 2017, and was kept in illegal custody at

13

the police station, where he was forced to sign several

blank papers and that, the recoveries were planted to

provide padding to the false prosecution narrative.

19. Learned counsel referred to the examination-in-

chief of the complainant (PW-1) to urge that the

victim was seen playing with her friends, by her

mother at 6:00 p.m. on 5

th February, 2017.

Immediately thereafter, both the parents left to buy

vegetables. They returned home inside of an hour but

did not see their child around, on which the search

efforts were commenced. Thus, there was only a gap

of one hour in which the entire incident is stated to

have taken place.

20. Learned counsel submitted that since the

search was commenced within an hour of the victim

having gone missing, there was practically neither

enough time nor any possibility for the appellant to

subject the child victim to rape and to have disposed

of the dead body of the victim in the time and manner

as alleged by the prosecution. He pointed out that the

prosecution has surmised that the appellant after

committing the ghastly crime, concealed the victim’s

body in a bag; carried it down two flights of stairs;

14

took it to the petrol pump on his motorcycle;

purchased petrol and then carried the body to a

remote location before setting it ablaze. He submitted

that this sequence of events put forth by the

prosecution is totally unbelievable and could not

have been completed in the small window of about an

hour. It was emphasised with reference to the

evidence of the complainant (PW-1) and Sridevi (PW-

2) that right from the inception, the appellant was

participating in the search and remained with the

search party till 4:00 a.m. in the morning of 6

th

February, 2017.

21. Attention of the Court was drawn to the version

of the complainant (PW-1), i.e., the father of the

victim wherein he alleged that previously, the victim

had made a complaint to her mother that the

appellant indulged in pinching her cheeks and also

used to kiss her. It was contended that looking at the

said previous conduct, it is impossible to believe that

the suspicion of the parents would not have shifted

on to the appellant once the information regarding

the victim having gone missing was received.

15

22. Learned counsel further contended that looking

at this past history as referred to supra and the fact

that Murugan (PW-3), being the member of the

search party, claimed to have seen the child victim

playing with the appellant on the second floor of the

same building, the immediate and natural reaction of

the witnesses would have been to make a search on

the second floor as well as inside the flat of the

appellant. Learned counsel contended that a theory

tried to be built up by the prosecution witnesses

claiming that the flat of the appellant was found

locked and hence, it could not be searched, does not

hold water when it is seen that the material

prosecution witnesses, namely, the complainant

(PW-1) and Sridevi (PW-2) themselves admitted that

the appellant was also assisting them in the search

till 4:00 a.m. in the morning of 6

th February, 2017.

23. He further submitted that if at all, Murugan

(PW-3) had actually seen the child playing with the

appellant on the second floor and soon thereafter, a

hue and cry was raised regarding the child having

gone missing, then the said witnesses would have

immediately divulged the said information to the

16

complainant (PW-1) being the father of the child

victim. In this scenario, the police personnel who

arrived at the spot would also have been,

instantaneously sounded about the gravely

suspicious circumstance thereby putting everyone at

guard regarding the conduct of the appellant and the

finger of suspicion would have turned towards him at

the first instance. Had there been an iota of truth in

these allegations, the family members and the police

officials would never have permitted the appellant to

participate in the search efforts and further they

would have immediately proceeded to search the

second floor of the building and particularly, the flat

of the appellant. If such an exercise had taken place,

the same would have immediately exposed the

circumstances prevailing at the alleged crime scene

and would have provided an important lead for

further investigation. It was also submitted that the

entire set of incriminating circumstances and

recovered articles have been subsequently planted by

the police officials for oblique motives.

24. Learned counsel further urged that the

prosecution case regarding the appellant having

17

purchased petrol in the bottles is false and

unsubstantiated. The recovery of the blue bag with

the undergarment of the victim is clearly planted

because when the initial observation mahazar

(Exhibit P-4) was prepared by the police officers

pursuant to the alleged disclosure statement of the

appellant, the presence of the said bag was not

mentioned in the memorandum. It was further

submitted that the Investigating Officer (PW-29) did

not prove the disclosure statements of the appellant

as per law and hence the recoveries pale into

insignificance.

25. It was also contended that the body of the victim

had already been discovered much prior to the

disclosure statement of the appellant being recorded

which fact is evident from the testimony of the

complainant (PW-1), i.e., the father of the victim.

Thus, the discovery of the body cannot be treated as

having been made in pursuance of the disclosure

statement of the appellant.

26. It was also submitted that not only is the

recovery of the ornaments suspicious but, in addition

thereto, there is a grave doubt in the manner in which

18

the identification proceedings of these articles were

held.

27. Learned senior counsel vehemently urged that

there has been a failure of a fair trial in this case

inasmuch as the appellant was hardly given any

opportunity to defend himself in the case. The charge

was framed against the appellant on 24

th October,

2017 and the calendar for the summoning of the

witnesses was finalised on 20

th November, 2017.

However, compliance with the mandatory

requirement of Section 207 CrPC, i.e., providing

copies of the relied upon documents to the accused,

was ensured only on 13

th December, 2017 and just

four days thereafter, the prosecution evidence was

commenced. Thus, as per the learned counsel, the

entire procedure adopted by the trial Court right from

the framing of charges to recording of evidence of the

prosecution witnesses is hasty and vitiated and

tantamounts to denial of fair trial inasmuch as the

trial Court proceeded to frame charges against the

appellant without providing the relied upon

documents to him as mandated by law and thus, the

19

subsequent proceedings would be automatically

vitiated.

28. He further contended that the appellant was

unrepresented in the trial proceedings and requested

for the services of a legal aid counsel. It was, for the

first time, on 13

th December, 2017, the trial Court

appointed a legal aid counsel to represent the

appellant in the trial proceedings. The documents

under Section 207 CrPC were supplied on the same

day and without giving any time for preparation to

the legal aid counsel; the evidence of the prosecution

was commenced from 18

th December, 2017, i.e.,

within 4 days of the legal aid counsel being

appointed, and evidence of as many as 30 witnesses

was completed within one month and sixteen days.

He further submitted that the judgment of conviction

was pronounced on 19

th February, 2018 and on the

very same day, the trial Court proceeded to pass the

sentence of death penalty against the appellant,

which is in gross contravention to the tenets of fair

trial and the sentencing principles as consistently

laid down by this Court. To fortify these assertions,

learned counsel placed reliance on the judgments of

20

this Court in the cases of Bachan Singh v. State of

Punjab

35

, Santa Singh v. State of Punjab

36

,

Allauddin Mian and Ors. v. State of Bihar

37

,

Malkiat Singh v. State of Punjab

38

, and Dattaraya

v. State of Maharashtra

39

.

29. On these grounds, learned counsel for the

appellant implored the Court to accept the appeals,

set aside the conviction of the appellant, and acquit

him of the charges levelled against him.

30. Without prejudice to the above, learned counsel

representing the appellant urged that the incident

took place way back in the year 2017, and the

appellant has already been incarcerated in prison for

almost 8 years. Neither the trial Court nor the High

Court undertook the mandatory exercise of procuring

the report in respect of aggravating and mitigating

circumstances; no effort was made to get conducted

the psychological evaluation of the appellant; and to

get a report about the conduct of the appellant in jail

before passing the order of sentence. The entire

35

1983 (1) SCR 145.

36

(1976) 4 SCC 190.

37

(1989) 3 SCC 5.

38

(1991) 4 SCC 341.

39

(2020) 14 SCC 290.

21

sentencing exercise was completed by the trial Court

on the very same day on which the judgment of

conviction was pronounced. Hence, the capital

punishment awarded to the appellant is totally

vitiated since the sentencing exercise was a mere

formality and no proper opportunity was provided to

the appellant in the said process. He, thus, submitted

that in case, the conviction of the appellant is upheld,

he deserves leniency on the aspect of the sentence.

SUBMISSIONS ON BEHALF OF THE

RESPONDENT -STATE: -

31. Per contra, learned senior counsel representing

the State, vehemently and fervently opposed the

submissions advanced by the appellant’s counsel. He

urged that Murugan (PW-3) had no reason to falsely

implicate the appellant. His statement to the effect

that the victim was playing with the appellant on the

second floor of the building is absolutely truthful and

constitutes unimpeachable evidence in support of the

circumstance of last seen together which has been

established against the appellant beyond all manner

of doubt. Immediately thereafter, the child victim

went missing. Hence, the onus would shift onto the

22

accused to explain the circumstances under which

the child victim was found murdered and her body

burnt.

32. He further submitted that the burnt dead body

of the victim was recovered in furtherance of the

disclosure statement of the appellant for which he

has offered no explanation whatsoever. The jewellery

articles worn by the victim on the day of the incident

were also recovered from the house of the appellant

which also gives rise to a presumption under Section

114 of the Indian Evidence Act, 1872. The appellant

failed to offer any explanation whatsoever for these

damning incriminating recoveries, and thus, the trial

Court and the High Court were absolutely justified in

drawing the presumption of guilt against the

appellant. On these grounds, learned senior counsel

for the respondent-State sought dismissal of the

appeals.

DISCUSSION AND ANALYSIS: -

33. We have given our thoughtful consideration to

the submissions advanced at bar and have gone

through the impugned judgments and the material

placed on record.

23

34. First and foremost, we will address the

submission advanced by learned counsel for the

appellant that there has been a total failure of justice

inasmuch as the trial was not conducted in a fair

manner and no proper opportunity was provided to

the appellant to defend himself. The following

chronological list of dates is essential to appreciate

the above issue raised by the counsel: -

Date Event

17.08.2017 Chargesheet filed by the police.

24.10.2017 Charges were framed against the

appellant, who was not represented by

a defence counsel and was not

provided services of a legal aid defence

counsel.

20.11.2017 A calendar was fixed for the trial of the

appellant. Schedule for examination

of witnesses by the prosecution was

fixed and 34 witnesses were sought

to be examined in 4 days,

commencing from 18

th

December,

2017.

13.12.2017 Compliance with the mandatory

provision of Section 207 CrPC was

made. On the same day, for the first

time, a legal aid counsel was

appointed to represent the appellant,

on his request.

18.12.2017 Prosecution evidence was

commenced.

30.01.2018 Prosecution evidence completed.

24

19.02.2018 Judgment of conviction was passed by

the trial Court and on the same day,

the appellant was awarded death

penalty.

35. A bare perusal of the above sequence of events

and proceedings makes it clear that right from the

stage of framing of the charges, the trial was

conducted in a lopsided manner and without due

deference to the principles of fair trial. The appellant

herein was not represented by a defence counsel, and

the services of a free legal aid counsel were provided

to him on 13

th December, 2017, only after the charges

were framed. The documents relied upon by the

prosecution were not provided to the appellant and

without complying with the mandate of Section 207

CrPC (Section 230 BNSS

40), the charges were framed

against the appellant on 24

th October, 2017, who was

unrepresented on that date. The schedule for

examination of 30 prosecution witnesses was fixed

for four days starting from 18

th December, 2017

without providing the services of a legal aid counsel

to the appellant who was left to face the charges of

such grave nature unrepresented by a counsel of his

40

Bharatiya Nagarik Suraksha Sanhita, 2023.

25

choice or a legal aid counsel in gross disregard to the

mandate of Articles 21 and 22(1) of the Constitution

of India and the guidelines issued by NALSA

41. As

noted above, copies of the documents relied upon by

the prosecution and the services of the legal aid

counsel were, for the first time, provided to the

appellant only on 13

th December, 2017 and the

evidence commenced within a period of four days

therefrom. Recording of prosecution evidence was

concluded within a period of one and a half months.

In this background, we are of the firm view that the

legal aid counsel appointed to defend the appellant

could, by no stretch of imagination, have had a

reasonable and effective opportunity to prepare the

matter and conduct the cross-examination from the

witnesses.

36. The constitutional right afforded to an accused

charged with an offence to defend himself is not

illusory or imaginary. For the trial to be fair and

reasonable, an effective opportunity to defend must

be provided to the accused and representation by a

counsel of choice is an important component of this

41

National Legal Services Authority.

26

guarantee. In a case where accused is facing charges

for offences which carry capital punishment, this

constitutional mandate becomes even more

sacrosanct, and it is the duty of the Court as well as

the State to ensure that the accused is not prejudiced

or deprived of a fair opportunity of defending himself

in a case where he may be awarded death penalty.

37. Such opportunity would unquestionably

require: -

(a) Providing copies of all relied upon documents to

the accused immediately on submission of

report under Section 173(2) CrPC (Section 193

BNSS)/committal of case under Section 209

CrPC (Section 232 BNSS).

(b) Ensuring that the accused is represented by a

lawyer of his own choice and in case, he/she is

not in a position to engage a private counsel

then, a legal aid defence counsel having

requisite experience must be appointed to

represent him at the trial. As has been laid down

by this Court in Anokhilal v. State of Madhya

Pradesh

42

, in capital punishment offences, a

42

2019 SCC OnLine SC 1637.

27

legal aid defense counsel so appointed should

preferably have an experience of 10 years at the

bar.

(c) The legal aid counsel so appointed should be

given sufficient opportunity to go through the

record and prepare the matter for carrying out

effective cross-examination from the witnesses.

(d) The Court should not act as a mute spectator

during recording of evidence, as provided under

Section 165 of the Indian Evidence Act, 1872

(Section 168 of the Bhartiya Sakshya

Adhiniyam, 2023). The Court must remain

vigilant, and in case any important question

necessary to arrive at a just decision of the case

is omitted to be put to the witnesses either by

the defence counsel or the public prosecutor,

the Court must not let such lacuna creep into

the proceedings, and it must be ensured that

Court put questions to the witnesses for

ensuring fairness in the proceedings.

38. However, the chronological list of events

reproduced (paragraph 34 supra) makes it clear that

these mandatory requirements were totally

bypassed/violated by the trial Court while

28

conducting the proceedings. Hence, prejudice and

denial of opportunity of effective defence to the

accused are writ large on the face of the record.

39. The conviction of the appellant was recorded on

19

th February, 2018, and on the very same day, the

learned trial Judge proceeded to undertake a

pretentious exercise of hearing the appellant on the

aspect of sentence and awarded the death penalty to

him. Evidently, the manner in which the trial Court

proceeded to pass the sentencing order indicates hot

haste leaving much to be desired and would vitiate

the death sentence awarded to the appellant. Neither

the trial Court nor the High Court undertook the

mandatory exercise of seeking a report of mitigating

and aggravating circumstances; the psychological

examination report of the appellant and a report

concerning the conduct of the appellant in jail, before

passing the order of sentence and confirming the

same. Thus, the sentencing procedure is in direct

conflict with the judgments of this Court in Bachan

Singh v. State of Punjab

43

, Santa Singh v. State

of Punjab

44

, Allauddin Mian and Ors. v. State of

43

Supra Note 35.

44

Supra Note 36.

29

Bihar

45

, Malkiat Singh v. State of Punjab

46

, and

Dattaraya v. State of Maharashtra

47

.

40. In view of the facts and circumstances indicated

above, we would have been persuaded to set aside the

impugned judgment and could have remanded the

matter to the trial Court for fresh adjudication.

However, considering the fact that almost eight years

have elapsed since the incident took place, and

considering the fact that the appellant has already

suffered protracted proceedings of trial and appeal,

while being incarcerated in custody, we deem it fit to

examine the case on merits.

41. At the outset, it may be noted that the case of

the prosecution is based purely on circumstantial

evidence, in the form of: -

i. last seen together theory;

ii. suspicious movement of the appellant

captured in the video footage of the CCTV

camera installed at a nearby temple;

45

Supra Note 37.

46

Supra Note 38.

47

Supra Note 39.

30

iii. confessional/disclosure statement/s made

by the appellant leading to the

incriminating discoveries/recoveries of: -

(a) body of the victim;

(b) the undergarments of the victim;

(c) the bottles in which the appellant

procured petrol for burning the body of the

victim;

(d) ornaments of the victim.

iv. Forensic Science Laboratory

48 reports

establishing the DNA profiling comparison.

42. It is trite law that in a case based purely on

circumstantial evidence, the onus is upon the

prosecution to prove the chain of unbroken

circumstances beyond all manner of doubt. The

chain of incriminating circumstances must be

complete, conclusive and should exclude every

hypothesis other than the guilt of the accused. In

other words, it must be proved from the chain of

incriminating circumstances that no reasonable

doubt can be entertained about the accused person’s

innocence, demonstrating that it was the accused

48

For short, “FSL”.

31

and none other who committed the offence. The

golden principles in respect of appreciation of

evidence in a case based purely on circumstantial

evidence have been encapsulated in Sharad

Birdhichand Sharda v. State of Maharashtra

49

,

wherein it was held that:

“153. A close analysis of this decision would

show that the following conditions must be

fulfilled before a case against an accused can be

said to be fully established:

(1) the circumstances from which the

conclusion of guilt is to be drawn should be

fully established.

It may be noted here that this Court indicated

that the circumstances concerned “must or

should” and not “may be” established. There is

not only a grammatical but a legal distinction

between “may be proved” and “must be or should

be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra

[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973

Crl LJ 1783] where the observations were made:

[SCC para 19, p. 807: SCC (Cri) p. 1047]

“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.”

(2) the facts so established should be

consistent only with the hypothesis of the

guilt of the accused, that is to say, they

should not be explainable on any other

hypothesis except that the accused is guilty,

49

(1984) 4 SCC 116.

32

(3) the circumstances should be of a

conclusive nature and tendency,

(4) they should exclude every possible

hypothesis except the one to be proved, and

(5) there must be a chain of evidence so

complete as not to leave any reasonable

ground for the conclusion consistent with the

innocence of the accused and must show that

in all human probability the act must have

been done by the accused.”

(Emphasis supplied)

43. Keeping in view the above principles, we shall

now proceed to discuss and evaluate the evidence of

the prosecution.

44. The first and most critical circumstance on

which the prosecution placed reliance was that of last

seen together. The witness who gave evidence in

support of this circumstance was Murugan (PW -3),

who claimed that on the fateful day, he saw the

appellant and the victim playing on the second floor

of the building, on the first floor whereof, the

complainant (PW-1) being the father of the victim

resided with his family. The witness (PW-3) claimed

to have seen the victim, the appellant, and the

appellant’s dog playing on the second floor between

6:00 p.m. and 6:15 p.m. It may be noted that the

frantic process for searching the victim started

33

between 7:15 p.m. to 7:30 p.m., soon after the

complainant (PW-1) and Sridevi (PW-2), i.e., the

parents of the victim, had returned to their house and

found the child missing.

45. Murugan (PW-3) claims to have informed the

complainant (PW-1) that his daughter was not in the

house and might be playing upstairs and advised him

to go and look for her on the upper floor of the

building. Had there been an iota of truth in the

version of Murugan (PW-3), he would definitely have

told the complainant (PW-1) that he had seen the

victim in the company of the appellant between 6:00

p.m. to 6:15 p.m. on the second floor of the building.

The glaring omission on the part of Murugan (PW-3)

in failing to share this vital information is also

manifest from the complaint

50 filed by the

complainant (PW-1) to S. Aanandha Kumar (PW-27),

Sub-Inspector posted at Mangadu Police Station, on

5

th February, 2017 at 10:00 p.m. In this complaint,

there is no reference whatsoever that anyone

including the alleged witness of the last seen together

circumstance namely Murugan (PW-3), had seen the

50

Supra note 11.

34

child victim on the second floor in the company of the

appellant. If at all, any such event had taken place

and the appellant had been seen playing with the

victim and immediately thereafter, she had gone

missing, then the complainant (PW -1) would

definitely have been apprised of the said fact by

Murugan (PW-3), his closely known person, and

consequently, this vital incriminating fact would

definitely have been mentioned in the complaint.

46. Apparently, thus, the theory put forth in the

evidence of Murugan (PW-3) that he had seen the

victim in the company of the appellant on 5

th

February, 2017, i.e., the date of the incident, is

nothing but a sheer concoction, bereft of credibility.

In addition, thereto, we find from the statement of

Murugan (PW-3) that the said witness, for the first

time, divulged the information comprising the

circumstance of last seen together to the 2

nd

Investigating Officer (PW-30) only on 24

th April, 2017,

i.e., more than two months and 20 days after the

incident. We are, therefore, convinced that the

circumstance of last seen together has been created

by the Investigating Officer (PW-30) through the

35

witness Murugan (PW-3) in order to lend credence to

the otherwise weak case of the prosecution.

47. The next piece of circumstantial evidence on

which the prosecution relied upon was in the form of

the video footage of the CCTV camera installed at a

nearby temple and presumably maintained by

Duraivelu (PW-6), In-charge of Karpaga Vinayagar

Temple, which allegedly captured the suspicious

movements of the appellant on the fateful day. First

and foremost, it must be noted that the Investigating

Agency did not care to procure the recording of the

said camera and exhibit the same in evidence. Hence,

the primary evidence of the so-called CCTV footage is

not available on record. In addition thereto, we find

that the theory of incriminating CCTV footage also

seems to be a fictional creation by the Investigating

Officers to somehow trap the appellant for the crime.

48. The complainant (PW -1) testified that the

process of the search was not bearing fruits and on

7

th February, 2017, Mangadu police informed him

that they had scrutinized the CCTV footage and

noticed the suspicious movements of the appellant,

who was allegedly absconding. A neighbour of the

36

complainant (PW-1) allegedly told him that the

appellant was seen carrying a travel bag on a

motorbike. The complainant (PW-1) further stated

that in the morning of 8

th February, 2017, the police

told him the gory details of the incident stating that

the appellant took the victim to his house, sexually

abused her, and thereafter, murdered her. In order to

screen the evidence, the dead body of the victim was

concealed and packed in a travel bag which was kept

amongst bushes at Anakaputhur bypass road and

was later incinerated.

49. The oral evidence regarding the CCTV footage

was given by Duraivelu (PW-6) being the In-charge of

the nearby temple. When we peruse the evidence of

this witness and compare the same with the

deposition of the complainant (PW -1), we find

material contradictions in both the versions. The

complainant (PW-1) categorically stated that the

police informed him on 7

th February, 2017 that they

had seen the footage of the CCTV camera installed at

the temple wherein suspicious movements of the

appellant were captured. To the contrary, Duraivelu

(PW-6) stated that the complainant (PW-1) had come

37

to the temple on 6

th February, 2017 and both of them

had watched the CCTV camera footage of 5

th

February, 2017 between 6:00 p.m. and 7:15 p.m. As

per the witness, the said camera recording revealed

that a person riding on a motorbike was seen passing

by the temple having placed a bag on the front of his

bike. The witness (PW-6) elaborated that the face of

the person was not clearly identifiable in the

recording and various other persons were also seen

travelling by bikes with bags hanging from their

vehicles.

50. The timing of the recording which has been

stated by the witness creates a serious doubt on the

prosecution case. It is difficult if not impossible to

believe that within this short window of 6:00 p.m. to

7:15 p.m., the entire chain of events could be

completed. To recapitulate, we may note that the

victim’s parents left for the market at about 6:00

p.m.; at that time child victim was playing with her

friends; Murugan (PW-3) went to the terrace between

6:00 p.m. to 6:15 p.m. and saw the appellant playing

with the child victim. Thus, evidently, as per the

prosecution case, within a short duration of one

38

hour, the appellant took the child victim to his

apartment; ravished and then murdered her; packed

her dead body in a bag; brought it down two flights of

stairs and carried the same away on the motorcycle

(which movement was allegedly captured by the

CCTV camera). It is unlikely that this gory sequence

could have been wrapped up within the small window

of one hour. The CCTV camera purportedly captured

an important event, i.e., the moment when the

appellant was allegedly seen taking away the bag in

which the dead body of the child victim was stuffed

and hence, the same could have provided a vital clue

for solving the mystery behind the crime. Failure to

collect the data from the Digital Video Recorder (DVR)

of the CCTV camera, creates a grave doubt on the

bonafides of the Investigation Agency. It seems that

the Investigation Officers were intentionally trying to

screen the truth from being brought on record and

washed their hands off the matter, by making the

appellant, a scapegoat.

51. However, in the absence of the CCTV footage

being collected and exhibited as per law, no credence

can be given to the evidence of Duraivelu (PW-6),

39

more so, when there is grave discrepancy between his

version and the version of the complainant (PW-1). In

stark contradiction to the version of the complainant

(PW-1) and Duraivelu (PW -6), the Investigating

Officer (PW-29) did not utter a single word that he or

any other police official had seen the said CCTV

footage or that any suspicious movement of a person

taking a big bag on a motorbike had been noticed by

anyone inquired during investigation. Hence, reliance

placed by the prosecution on the so-called CCTV

footage is nothing but a figment of imagination and

cannot be accepted. Rather, this Court is compelled

to draw an adverse inference against the prosecution

for withholding a vital piece of evidence, i.e., the

CCTV footage.

52. The third circumstance on which the

prosecution relied upon to bring home the guilt of the

appellant was in form of the confessional/disclosure

statement/s made by the appellant leading to the

incriminating discoveries/recoveries. In this regard,

the relevant excerpts from the deposition of the

complainant (PW-1), need to be referred which read

thus: -

40

“On 7.2.2017 the Mangadu Police informed me

that they watched the CCTV and found the

suspicious movement of one Mr. Dashwanth and

he was absconding. My neighbour informed me

that the said Dashwanth was carrying a Travel

Bag in his bike. On 8.2.2017 morning the police

informed me that the said Dashwanth took my

daughter to his house and sexually abused her

and murdered her. In order to screen the

evidence he taken away my daughter in the

travel bag and kept her in a bush at

Anakaputhur Bypass road and burn t he body.

On 9.2.2017 at about 5.30 a.m. police called me

to the police station and I went there. Where they

shown me my daughter’s anklet, earrings and

dresses and I confirmed that all the items shown

to me are belongs to my daughter Hasini.”

53. The aforesaid statement made by the

complainant (PW-1) completely demolishes the entire

substratum of the prosecution case and creates grave

doubt on the bonafides of the Investigation Officer’s

(PW-29) actions, in recording the disclosure

statement/s of the appellant and effecting recoveries

in pursuance thereof. For arriving at the above

conclusion, we shall analyse the evidence of the

complainant (PW-1): -

i. That on 7

th February, 2017, Mangadu

Police informed him that they had watched

the CCTV footage and found the

41

suspicious movement of Dashwanth

(appellant herein);

Observation by Court: - No such

statement made by any police officer.

ii. That his neighbour informed that the said

Dashwanth (appellant herein) was

carrying a travel bag on his bike;

Observation by Court: - No such witness

stepped forward to give this information to

the 1

st Investigation Officer (PW-29).

iii. That in the morning of 8

th February, 2017

the police informed him that Dashwanth

(appellant herein) took his daughter

(victim herein) to his house, sexually

abused her, and murdered her. In order to

screen the evidence, the dead body was

taken in a travel bag which was kept in a

bush at Anakaputhur bypass road and

was later set on fire.

Observation by Court: - The Investigation

Officer (PW-29) had already created a story

which seems to have been transposed into

the confessional statement of the

appellant.

42

iv. That on 9

th February, 2017 at 5:30 a.m.,

the police called him to the police station

and showed him his daughter’s anklets,

earrings, and dress. He confirmed that all

these items belonged to his daughter

(victim herein).

Observation by Court: - No Test

Identification Parade was conducted to get

these articles identified.

54. This entire sequence of events as narrated by

the complainant (PW-1) brings the case of the

prosecution under grave doubt. It is the pertinent

case of the appellant in his defence that he was

regularly attending his office and that the police

picked him up on 7

th February, 2017 at about 11:00

a.m. to 12 noon. The Investigation Officer (PW-29)

feigned ignorance regarding the presence of the

appellant at his workplace which creates a doubt

about the story of prosecution that the accused was

absconding and was nabbed on 8

th February, 2017.

The appellant was shown to be arrested on 8

th

February, 2017 at 9:00 a.m. However, going by the

version of the complainant (PW-1), by that time, the

43

police had already informed him about the minute

details of the manner in which the crime was

committed, the efforts made by the appellant to

destroy the evidence, and the location where the body

of the victim was disposed of. The Investigation

Officer (PW-29) showed that the appellant was

arrested on 8

th February, 2017 at 9:00 a.m. and

thereafter, the confessional statement/disclosure

statement (Exhibit P-8) of the appellant was

purportedly recorded at AGS Park, Mugalivakkam

from 9:05 a.m. to 10:00 a.m. Hence, there was no

possibility whatsoever that the Investigating Officer

(PW-29) could have known all these facts so as to

apprise complainant (PW-1) in the morning of 8

th

February, 2017 unless such facts were already in the

knowledge of the said police officer, which is a more

possible theory. This is consistent with the plea of the

appellant who stated that the police picked him up

from his house in the early hours of 7

th February,

2017 itself. Thus, it is apparent that the police had

already created the entire story and later on, tried to

fit the same into a sequence by postponing the formal

arrest of the appellant in order to implicate him in

this case. The fact that the police officers had told the

44

complainant regarding the location where the body of

the victim had been disposed of, in the morning of 8

th

February, 2017, is itself sufficient to discard the

theory of the prosecution that all the incriminating

discoveries were made in pursuance of the disclosure

statement made by the appellant. Thus, the claim

made by the prosecution that the dead body of the

victim was recovered in furtherance of the disclosure

statement made by the appellant is belied by cogent

material available on record.

55. We have no hesitation in holding that recoveries

of the bag, allegedly containing the bottles in which

petrol was carried and the undergarment of the

victim, were not effected at the instance of the

appellant and were planted recoveries. This

conclusion is fortified by the fact that there is no

mention of the said bag in the observation mahazar

51

and the rough sketch

52. The Investigating Officer

(PW-29) did not utter a word that he sealed the

ornaments allegedly recovered in furtherance of the

disclosure statement given by the appellant. Hence,

51

Supra note 15.

52

Supra note 16.

45

the identification of these articles by the complainant

(PW-1) pales into insignificance.

56. At this stage, a very important fact that emerges

from the evidence of Sumathi (PW -7), Village

Administrative Officer, Madanandhapuram Village,

needs to be noted. For ready reference, relevant

extract from the evidence of Sumathi (PW -7) is

extracted hereinbelow: -

“On 08.02.2017, the Inspector of Police,

Mangadu, called me over phone and informed at

8.15 am that there was an information regarding

an important case, and that I should come to the

area namely AGS park, Mugalivakkam, I having

obtained permission from Revenue Inspector

and Tahsildar, informed my Assistant

Mohandass and made him to come and went to

AGS park in his two wheeler. Police was found

gathered there. Dashvanth was also present in

that place. At that time police told me that

Dashvanth was going to tender confession

statement regarding his molesting of a girl child

namely Hasini aged 7 years and murdering her

by setting her ablaze.”

57. It is clear that the witness (PW-7) stated in the

examination-in-chief that on 8

th February, 2017, the

Inspector of Police, Mangadu called her over phone at

about 8:15 a.m., and told her that there was

information regarding an important case and she

should come to the area, namely AGS Park,

46

Mugalivakkam. The witness (PW-7) took permission

from the Revenue Inspector and Tahsildar and went

to the AGS Park along with her assistant, i.e.,

Mohandass (PW-8). She further stated that the police

team was present there with the appellant. The police

informed the witness (PW-7) that the appellant was

going to tender a confession regarding he having

molested and murdered a girl aged 7 years (victim

herein) and then destroyed the evidence by setting

the dead body of the victim on fire.

58. Thus, it is clearly discernible from the evidence

of the witness (PW-7) that she was informed at

around 9:00 a.m. regarding the forthcoming

situation/events which would include a confession to

be made by the appellant. This deposition completely

destroys the credibility of the actions of the

Investigating Officer (PW-29) who informed the

witness (PW-7) well in advance as to the tenor of the

confession which the appellant would make. The

appellant was arrested at 9:00 a.m. but the

Investigation Officer (PW-29) told the witness (PW-7)

much earlier that there was information regarding an

important case and that she should come to AGS

47

Park, Mugalivakkam. The witness (PW -7) further

stated that as soon as she reached AGS Park,

Mugalivakkam, she was informed by the

Investigation Officer (PW-29) that the appellant was

going to tender a confession regarding he having

molested and murdered a girl aged 7 years (victim

herein) and then destroyed the evidence by setting

the dead body of the victim on fire. This disclosure

was made before the recording of such a confession

and creates a grave doubt over the bonafides of the

Investigating Officer’s actions. The above analysis

lends credence to the defence version that the

appellant had been illegally detained on 7

th February,

2017 and that his confession was extracted under

coercion on that day itself.

59. The fact regarding the confession of the

appellant having been extracted much prior to his

arrest is also corroborated from the testimony of the

complainant (PW-1), who stated in his testimony that

the Investigating Officer (PW-29) called him in the

morning of 8

th February, 2017 and told that

Dashwanth (appellant herein) had murdered his

daughter (victim herein). Not only this, the minute

48

details of the incident were also shared by the

Investigating Officer (PW-29) with the complainant

(PW-1) much before the confessional statement of the

appellant had been recorded (discussed in paragraph

54 supra).

60. These facts give rise to a clear picture that the

theory of confessional/disclosure statement of the

appellant leading to the discoveries is nothing but a

creation of the Investigating Officer (PW-29) and as a

matter of fact, all the incriminating facts an d

circumstances were already in the knowledge of the

Investigating Officer (PW-29) and were subsequently

woven into a story, projecting a hypothesis that a

voluntary confession was made by the appellant

leading to the incriminating discoveries of the dead

body, the ornaments, etc.

61. At this stage, we would also like to record our

serious reservation on the manner in which the entire

confessional statement of the appellant was allowed

to be reproduced by the trial court in the

examination-in-chief of the Investigating Officer (PW-

29). Law is well settled by a catena of judgments

rendered by this Court that only such part of the

49

confessional statement of an accused which

distinctly leads to the discovery of a material fact can

be permitted to be tendered in evidence.

53 In gross

contradiction of this settled legal principle, the trial

Court, while recording the deposition of the

Investigating Officer (PW-29) permitted him to

narrate the entire confession purportedly made by

the appellant in presence of Sumathi (PW-7), the

Village Administrative Officer and Mohandass (PW-

8), assistant of PW-7. The deposition records that the

appellant confessed that he took the child to his

home; removed her clothes; committed sexual

assault on her and then ended her life by smothering

her. Furthermore, the details of the dead body of the

victim being stuffed in a blue-coloured travel bag and

taken to the remote area near the Anakaputhur

bypass road and setting the same to fire are all

recorded in the deposition as if the same were the

personal observations of the Investigating Officer

(PW-29).

53

State of Uttar Pradesh v. Deoman Upadhyaya , 1960 SCC OnLine SC

8; Mohmed Inayatullah v. State of Maharashtra , (1976) 1 SCC 828;

Earabhadrappa v. State of Karnataka , (1983) 2 SCC 330; Bodhraj

alias Bodha and Others v. State of Jammu and Kashmir , (2002) 8 SCC

45.

50

62. In order to highlight this gross legal and

procedural flaw in the recording of evidence, we

would gainfully refer to the following extracts from

the evidence of the Investigating Officer (PW-29): -

“It is presumed that the information about the

child Hasini could be obtained if the absconding

person Dashvanth was caught and enquired,

based on the information given by the Informant,

he was arrested on 08.02.2017 at 09.00 a.m. at

AGS Park, Mugalivakkam and on enquiring him,

he had revealed that he sexual by harassed the

child Hasini in his house and committed murder

and set her on fire. Since, none among the

general public came forward to remain as

witnesses at the time of recording his

confessional statement, information was passed

on to Tmt. Sumathi, Village Administrative

Officer, Mugalivakkam and his Assistant

Mohandass, they were summoned to be present

at AGS Park and in their presence, the accused

Dashvanth revealed about him and his family in

his Statement and had told that, he, after having

studied Diploma, was working in a Call Centre at

Mylapore. Further, I had recorded Confession

Statement given by him in the presence of

the witnesses Tmt. Sumathi, Village

Administrative Officer and his Assistant Tr.

Mohandass at 09.05 a.m. to 10.00 a.m.

wherein he had stated that, since he was

having more lust over women, he used to

watch sex videos in the cellphone, that, as he

had the intention of committing sexual

relationship with a lady, he told that, a girl

child Hasini, daughter of Babu, residing in his

Apartment was cute, that, he would

frequently pinch her over her cheek and that,

he had the intention to somehow enjoy Hasini

at opportune, that, he had witnessed her

51

parents going out in the evening leaving their

child Hasini alone on 05.02.2017, that, he

made Hasini, who was in the downstairs, to

play with his dog and he took her to his house

when he was alone in his house, had removed

Hasini's clothes in his bedroom and had

committed sexual harassment, at that time,

since Hasini raised an alarm by shouting, he

had committed murder by pressing her face

with bed-sheet and in order to conceal the

murder, he wrapped her in a blue coloured

Travel Bag, which was in his house, took her

to Tambaram to Maduravoyal Bypass Road by

his unregistered Apache motor -cycle, had

thrown her in a thorny bush situated near

unutilized Telephone Booth situated near

Anakaputhur and had set her on fire by

pouring petrol over her and that, he wo uld

identify the place where Hasini's body was

burnt and also the place where he had raped

and murdered her in his house.”

(Emphasis Supplied)

63. It is clear that the entire confessional statement

of the appellant was allowed to be reproduced in the

deposition of the Investigation Officer (PW-29) by the

trial court which is in clear contravention to the

mandate of Section 25 of the Indian Evidence Act,

1872. Allowing the Investigation Officer to extract the

entire confession of the accused, in his evidence,

apart from being grossly illegal, also have a

propensity of clouding the mind of the Court while

52

appreciating the facts and would in turn cause grave

prejudice to the accused.

64. He further deposed about summoning of the

forensic science expert, Sophiya Joseph (PW-21) and

the subsequent identification of the place and body

of the child victim by the appellant in presence of

Sumathi (PW-7), Mohandass (PW-8) and the scientific

expert. The deposition continues to the process of the

drawing up of the observation mahazar

54, a rough

sketch

55 and the identification and recovery of the

blue-coloured travel bag containing the

undergarment of the child victim, the cold drink

bottles with petrol like smell and also the charred ash

recovered from the place where the body of the child

victim was set to fire. The Investigation Officer (PW-

29), further narrated about the recovery of the jeans

worn by the appellant, his T-Shirt, a purse and some

ornaments and so also a bed cover and an Axis Bank

ATM Card etc. These recoveries were recorded in

observation mahazar

56.

54

Supra note 15.

55

Supra note 16.

56

Exhibit P-7.

53

65. Though the aforesaid witness in his evidence

has spoken about the confessional statement given

by the appellant as reproduced supra, but evidently

the said confessional/disclosure statement was not

exhibited by him in his evidence. The only disclosure

statement of the appellant which the Investigating

Officer (PW-29) exhibited and proved in evidence was

Exhibit P-8: -

“Further, the Admissible Portion, in which

the accused had stated that, he would

identify his house and would produce the

clothes and Hasini's jewelleries kept

concealed by him in his Purse, has already

been marked as Ex. P.8.”

(Emphasis supplied)

66. In cross-examination, the Investigation Officer

(PW-29) made the following important admissions: -

“There are witnesses who have witnessed the

missing child as well as the accused person

together at last. It is correct if it is stated that

if a suspicious person who is said to have been

involved in criminal act had gone missing, we

would search him at his residence and at the

place where he had worked . If there is

possibility for a suspicious person to get escape

at some times, we would search him, not

directly, but through secret informant. I came to

know from investigation that the accused

Dashvanth was working in a Private Firm at

Mylapore, that, he is a Tax Assessee and that, he

54

does reside in a permanent address. Neither, I

searched the accused at his work place nor I

conducted enquiry there. It is correct if it is

stated that, there is a distance of one hour

travel between the place of occurrence and

the place where the accused had worked. If it

is stated that, the accused, as usual, had gone

to his office for work on 05.02.2017,

06.02.2017 and 07.02.2017, I do not know

about that. We became suspicious of the

accused only on 07.02.2017. If it is stated that

the accused did not get abscond on 05.02.2017,

06.02.2017 and 07.02.2017 and that, he, as

usual, had gone for work, we became suspicious

of the accused only on 07.02.2017…… It is not

correct if it is stated that, I arrested the accused

on 07.02.2017 and detained him into my

custody and that, therefore, I am telling

falsehood that he was arrested on 08.02.2017

at near AGS Park Mugalivakkam at 09.00 a.m.

for the first time. It is correct if it is stated that

it is a common practice to interrogate a person

in the police station when he was arrested over

the charges of committing major crime. As far as

this case is concerned, if it is asked as to

whether, the accused began to depose

confessional statement within five minutes,

as soon as he was caught on 08.02.2017 at

09.00 a.m. at AGS Park, Mugalivakkam, he

started to plead guilty as soon as he was

caught and began to interrogate. There is no

possibility for the witnesses Sumathi and

Mohandass to arrive there within those five

minutes, that, since they were the

government servants, it would take time for

them to come after obtaining due permission

and that, I am deposing falsehood stating that

the accused was enquired there by summoning

the witness and detaining him already.

We have not received any complaint

whatsoever from the child's parents prior to

55

this occurrence stating that the accused was

sexually harassing the child viz., Hasini by

touching on her cheek.

P.W.2 Sridevi during her enquiry, has deposed

that the child Hasini was playing on the ground

floor along with other children and if it is asked

as to whether I conducted enquiry with any of

them, I conducted enquiry. I do not remember as

to whether I obtained statement from them and

filed it before the court. It is wrong to state that

if the accused took Hasini with him by

showing the dog, then other children, who

were playing with her, would have deposed it

during my enquiry and that, since none of

them have deposed in such a manner, I did

not arrayed any of them as witness.

P.W.6 Duraivel is an Administrator of a temple

in that area and that, he had witnessed some

recordings in the CCTV camera fixed in the

temple, that, he had told that he had also seen

the recordings by obtaining from him and that,

therefore, if it is asked whether I have

obtained the aforesaid CCTV footages from

that witness and I have produced it in this

case, I did not produce the same, as, the

complainant has informed us about the

accused secretly and because the face was not

clearly visible in the aforesaid CCTV footage

and also because only the image was seen.”

(Emphasis supplied)

67. From an overall conspectus of the evidence of

Investigating Officer (PW-29), we feel that the defence

has been able to create a grave doubt impeaching the

credibility and sanctity of the actions of the

Investigation Officer (PW-29) on the vital aspects of

56

investigation including the arrest of the appellant

followed by disclosure statements leading to the

alleged incriminating recoveries/discoveries. The

witness (PW-29) was given a distinct suggestion by

the defence that right from the day of the incident,

the appellant had regularly gone to attend his work

and never absconded. That his signatures were

obtained on the confessional statements by detaining

him in advance and torturing and beating him and

that the appellant was implicated in the case falsely.

The witness (PW-29) admitted that though it was a

normal practice to seize the undergarments of the

accused in sexual harassment cases, but in the

present case, he did not seize it, as the same could

not be traced out.

68. Regarding the mobile phone of the appellant,

the witness (PW-29) was given a suggestion that the

recovery was manipulated and that there was no

document confirming the fact that the mobile phone

was that of the appellant. Even the identity of the

owner of the sim-card was not established by any

documentary evidence. The gross indifference shown

by the Investigation Officer (PW-29) in making any

57

efforts to search the flat of the appellant at the

earliest available opportunity also adds to the series

of the doubtful actions during investigation.

69. At this stage, a very significant fact needs to be

noted from the evidence of the Investigating Officer

(PW-29) as the same would have a material bearing

on the scientific reports including the DNA report.

The witness did not give any indication regarding the

manner in which, the seized articles including the

forensic samples were sealed and stored after the

procedure of seizure had been completed. There is no

indication in his evidence with regard to placing of

the seized articles in a sealed condition which is the

normal and mandatory protocol. Needless to state

that the forensic articles/materials in a case of such

sensitive nature must be sealed at the time of seizure.

The packets containing the articles/materials must

bear the case details, the signatures of the panch

witnesses, the accused and the seizure officer. These

sealed articles must be deposited in the malkhana of

the police station or any other appropriate place of

safekeeping before transmission to FSL. The

prosecution has tried to project through the evidence

58

of Investigating Officer (PW-29) that the material

articles/forensic samples were sent to the scientific

experts under the orders of the Court, however, the

prime witness who would be required to state about

the safe custody of the said articles/materials and

their fate in future including transit to the FSL would

be none other than the Investigating Officer (PW-29)

himself.

70. The relevant excerpts from the evidence of the

Investigating Officer (PW-29) regarding the seizure

and the safe custody of the forensic

articles/materials are reproduced hereinbelow: -

“I came to the station along with the accused and

the objects that were seized and kept in the

station under safe custody.

On 09.02.2017, advice was given to send the

child's corpse along with the relevant documents

through Tr. Murugan, Special Sub Inspector

after the completion of Post mortem for the

purpose of handing it over to her relatives. On

13.02.2017, I gave the Requisition Letter with a

request to conduct Medical Examination of the

accused Dashvanth through the court. That

Requisition Letter is Ex.P.38. On 16.02.2017,

the accused Dashvanth was sent through the

Court to the hospital for conducting the test of

masculinity.

I again produced the accused before the Court

on 19.02.2017 and subjected him into custody.

59

On 21.02.2017, as per my request, the parents

of the child viz., Tr. C.S.D. Babu and Tmt. Sridevi

were subjected for DNA Analysis through the

court. That Requisition Letter is Ex.P.39. Later

on, on 22.02.2017, Case Property and Forensic

Properties were handed over before the court,

Court B.I. No. 5/2017 was obtained, based on

the court order and in order to conduct Analysis

of Forensic properties, it was handed over to the

Chennai Forensic Science Department, Mylapore

through one Tr. Murugan, Special Sub

Inspector. That Requisition Application is Ex.

P.40.”

71. A perusal of the above excerpts from the

testimony of the Investigating Officer (PW -29)

confirms that the prosecution has miserably failed to

prove the chain of custody of the forensic

articles/samples right from the time of seizure till

they reached the FSL. The malkhana In-charge of the

police station was not examined in evidence. Neither

any forwarding documents except for a forwarding

letter

57, authorising the movement of the forensic

articles/samples were proved by the Investigation

Officer (PW-29) nor any witness who carried these

samples from the police station to the Court or the

concerned laboratories, was examined in evidence.

Since the sanctity of the samples was not proved by

proper evidence, as a necessary corollary, the reports

57

Exhibit 40.

60

of scientific analysis would lose significance and

cannot be relied upon. To support our conclusion, we

may gainfully refer to the decision of this Court in

Prakash Nishad @ Kewat Zinak Nishad v. State

of Maharashtra.

58 For ready reference, relevant

paragraphs from the said judgment are quoted

hereinbelow: -

“53. Perusal of these documents reveals that

samples of the blood and semen of the appellant

were sent for forensic analysis. Importantly

though, there is nothing on record to

establish as to who took such samples, on

what date, on how many occasions and why

were they not sent all at once, we notice that

none of the police officials have testified to

the formalities of keeping the samples safe

and secure being complied with.

… … … …

58. As has been hitherto observed, there is no

clarity of who took the samples of the

appellant. In any event, record reveals that

one set of samples taken on 14-6-2010 were

sent for chemical analysis on 16-6-2010 and

the second sample taken, a month later on

20-7-2010 is sent the very same day. Why

there exist these differing degrees of

promptitude in respect of similar, if not the

same-natured scientific evidence, is

unexplained.

… … … …

58

2023 SCC Online SC 666.

61

60. In the present case, the delay in sending

the samples is unexplained and therefore, the

possibility of contamination and the

concomitant prospect of diminishment in

value cannot be reasonably ruled out. On the

need for expedition in ensuring that samples

when collected are sent to the laboratory

concerned as soon as possible, we may refer to

“Guidelines for Collection, Storage and

Transportation of Crime Scene DNA Samples For

Investigating Officers — Central Forensic

Science Laboratory, Directorate Of F orensic

Sciences Services, Ministry of Home Affairs,

Government of India” which in particular

reference to blood and semen, irrespective of its

form i.e. liquid or dry (crust/stain or spatter)

records the sample so taken: “Must be submitted

in the laboratory without any delay.”

61. The document also lays emphasis on the

“chain of custody” being maintained. Chain of

custody implies that right from the time of taking

of the sample, to the time its role in the

investigation and processes subsequent, is

complete, each person handling said piece of

evidence must duly be acknowledged in the

documentation, so as to ensure that the integrity

is uncompromised. It is recommended that a

document be duly maintained cataloguing the

custody. A chain of custody document in other

words is a document, “which should include

name or initials of the individual collecting the

evidence, each person or entity subsequently

having custody of it, dated the items were

collected or transferred, agency and case

number, victim's or suspect's name and the brief

description of the item”.

… … … …

66. In the present case, even though, the DNA

evidence by way of a report was present, its

62

reliability is not infallible, especially not so in

light of the fact that the uncompromised

nature of such evidence cannot be

established; and other that cogent evidence

as can be seen from our discussion above, is

absent almost in its entirety.”

(Emphasis supplied)

72. R.D. Vivekanandan (PW -30) was the 2

nd

Investigating Officer in the case. He took over

investigation from N. Ravikumar, 1

st Investigating

Officer (PW-29) on 22

nd April, 2017. The following

important facts are discernible from the testimony of

the Investigating Officer (PW-30): -

a. No enquiry was made from the other

children who were playing with the victim

prior to her disappearance in the evening

of 5

th February, 2017.

b. It was wrong to suggest that the semen and

the blood samples of the appellant were

collected against his desire by assaulting

him.

c. No call detail records pertaining to the

mobile phone in use of the appellant were

procured and proved on record.

63

d. No identification parade was conducted in

the case.

e. No enquiry was conducted from the firm

where the appellant was working to find

out whether or not he was attending duty

from 5

th February, 2017 to 8

th February,

2017.

f. That it was not correct to suggest that the

appellant was not arrested at the time,

date and place as mentioned in the record.

73. In examination-in-chief, the witness (PW-30)

stated that he recorded the statements of certain

witnesses namely, C.S.D. Babu (PW-1), Sridevi (PW-

2), Murugan (PW-3), all of whom had already given

their statements to 1

st Investigating Officer (PW-29).

The witness recorded their fresh statements on 24

th

April, 2017. It is evident from the record that in the

statement of Murugan (PW-3) recorded by the witness

(PW-30), he divulged for the first time about having

witnessed the child victim playing with the appellant

and his dog on the second floor of the bu ilding.

Furthermore, Pushpa (PW-11) also for the first time

64

disclosed to 2

nd Investigating Officer (PW-30) that she

had seen the appellant going out from the Nikitha

Flats at about 7:00 p.m. on his motorcycle with a

travel bag on the back. Apparently thus, the

introduction of these witnesses in the subsequent

investigation undertaken by 2

nd Investigating Officer

(PW-30) after significant delay was aimed only at

creating evidence of last seen together and of the fact

that the appellant was seen carrying away a bag on

his motorcycle. Had there been an iota of truth in

these allegations, there was no reason as to why the

concerned witnesses would not have stepped forward

to narrate these vital facts to N. Ravikumar, 1

st

Investigating Officer (PW-29) at the earliest available

opportunity.

74. The witness (PW-30) also stated that upon

receiving the Court order on 6

th June, 2017, the

appellant was taken out from the prison and

produced before the Government College and

Hospital, Chengalpet for collection of his blood

samples. Under the same Court’s order, the blood

samples of the appellant were sent to the FSL,

Chennai for the purpose of conducting DNA test.

65

However, the witness (PW-30) did not prove any

document or memorandum whatsoever in which the

procedure of collection of the blood samples of the

appellant and the forwarding thereof to the FSL,

Chennai was recorded. Thus, the sanctity of the

procedure of drawing the blood samples of the

appellant and the forwarding thereof to the FSL has

been breached which would lead to the DNA report

being rendered redundant.

75. The DNA analysis reports

59 were proved by

Nirmalabai Davidson (PW-28), Scientific Officer, FSL,

Chennai. She deposed that on 10

th February, 2017,

while she was on duty, she preserved two teeth and

two thigh portions placed before her in connection

with the instant case. These articles had been

forwarded to the witness (PW -28) by Professor

Karthika Devi (PW-16), Medico-Legal Department,

Kilpauk Medical College and Hospital through M.

Murugan (PW-26), Special Sub-Inspector, for the

purpose of conducting DNA analysis. The witness

(PW-28) proved the procedure of comparison of the

DNA samples extracted from the teeth and the thigh

59

Exhibit P-19, P-30, P-31 and P-32.

66

bones of the skeleton and the blood samples of the

parents, i.e., C.S.D. Babu (PW-1) and Sridevi (PW-2)

to conclude that the dead body was that of the child

victim. This fact is otherwise also admitted and not

in dispute.

76. The witness (PW-28) further stated that in

sequel to the above, the patch of semen detected on

the underwear (which was marked as Material Object

No. 2 in the analysis report) was received from the

biological division on 7

th April, 2017. DNA was

separated from this semen stain and analysis was

conducted by comparing the same with the DNA

profile extracted from the blood sample of the

appellant. The blood samples of the appellant were

collected in slides and were forwarded by the trial

Court on 8

th June, 2017. The DNA was separated

from the blood sample and on comparison, the same

matched with the DNA profile of the semen stain

found on the underwear. We may observe that

though the scientific experts concluded that the DNA

profile of the semen stain found on the underwear of

the victim was matching with the DNA profile of the

appellant but as the very factum of recovery of the

67

Material Object, i.e., the undergarment of the victim

has not been established beyond doubt (discussed in

55 supra), as a consequence, no sanctity whatsoever

can be attached to the conclusions drawn in the

Expert Report (Exhibit P-32).

77. A further doubt is created on the veracity of the

DNA report when we consider the following answer

given by Nirmalabai (PW-28) to a question put in

cross-examination.

“If it is asked as to how long does semen bio-

cells would survive after being released from

the human body, it would survive for 48

hours, but, what I have found out was, the bio-

cells separated from DNA from the cells in

semen stain.”

(Emphasis Supplied)

78. A very serious question has to be posed

regarding the time of collection of the blood samples

of the appellant. There is no dispute that the case of

prosecution was based on circumstantial evidence,

and the appellant came to be arrested on 8

th

February, 2017. Thus, there was no reason

whatsoever for the Investigating Agency to have

waited for four months before collecting the blood

samples of the appellant. There is a strong possibility

68

that the delay may have been utilized to manipulate

the samples. Doing so was very easy because there is

no evidence on record regarding the unbreached

chain of custody of any of the forensic samples.

79. Apparently thus, there is a serious doubt

regarding the entire procedure, whereby, the DNA

from the semen stain found on the undergarment of

the victim was separated and the same was compared

and matched with the DNA profile of the appellant’s

blood sample. Hence, we are not inclined to rely upon

the said DNA profiling reports

60.

80. We may hasten to add that while the present

case pertains to the commission of a heinous offence

involving a girl of tender age of 7 years, at the same

time, we cannot ignore or bypass the fundamental

principle of criminal jurisprudence that the

prosecution is duty-bound to prove the guilt of the

accused beyond reasonable doubt. The onus is

heavier in a case based purely on circumstantial

evidence. However, regrettably, the prosecution has

miserably failed to do so in the instant case, leaving

60

Exhibit P-31 and P-32.

69

the Court with no choice but to acquit the appellant,

despite the heinous nature of the crime. While it is

acknowledged that the acquittal of an individual

involved in a heinous crime can lead to societal

distress and cause grave anguish to the victim’s

family, the legal framework does not permit the

Courts to punish an accused person based merely on

moral convictions or conjectures. Each case must be

adjudicated by the Courts rigorously on its individual

merits and in strict conformity with the law, without

yielding to public sentiment and external pressures.

81. As a result of the above analysis, we are of the

firm view that the prosecution has miserably failed to

prove the vital circumstances, viz., (i) last seen

together theory; (ii) suspicious movement of the

appellant captured in the video footage of the CCTV

camera installed at a nearby temple; (iii)

confessional/disclosure statement made by the

appellant leading to the incriminating

discoveries/recoveries and (iv) FSL reports

establishing the DNA profiling comparison, which

constituted the entire edifice of the prosecution case

70

and on which the conviction of the appellant was

based.

82. We have minutely gone through the judgments

of the High Court as well as the trial Court and find

that while coming to the respective conclusions

regarding the guilt of the appellant, the trial Court

and the High Court glossed over these patent

infirmities and loopholes in the case of the

prosecution. As these vital circumstances have not

been proved beyond all manner of doubt, it would not

be safe to uphold the conviction of the appellant as

recorded by the trial Court and affirmed by the High

Court. Resultantly the impugned judgments do not

stand to scrutiny.

83. As an upshot of the above discussion, the

appeals succeed and are hereby allowed. The

judgment of conviction and order of sentence dated

19

th February, 2018 passed by the trial Court and the

judgement dated 10

th July, 2018 passed by the High

Court are set aside. The conviction of the appellant

and the sentences awarded to him, by the trial Court

and affirmed by the High Court are also set aside.

71

84. The appellant is acquitted of the charges. He is

in jail and shall be released from custody forthwith,

if not wanted in any other case.

85. Pending application(s), if any, shall stand

disposed of.

….……………………J.

(VIKRAM NATH)

….……………………J.

(SANJAY KAROL)

...…………………….J.

(SANDEEP MEHTA)

NEW DELHI;

OCTOBER 08, 2025.