SC: Not disproving last seen factor adds link in the chain of circumstances

Today, i.e. on 29th March 2019, The Hon’ble Supreme Court in the matter of Pattu Rajan v. The State of Tamil Nadu, pronounced that someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes.

The Hon’ble Supreme Court, inter alia, observed that:

In case a fresh offence is committed during the course of the earlier investigation, which is distinct from the offence being investigated, such fresh offence cannot be investigated as part of the pending case, and should instead be investigated afresh.(Para 18)

The Judge while deciding matters resting on circumstantial evidence should always tread cautiously so as to not allow conjectures or suspicion, however strong, to take the place of proof. If the alleged circumstances are conclusively proved before the Court by leading cogent and reliable evidence, the Court need not look any further before affirming the guilt of the accused. Moreover, human agency may be faulty in expressing the picturization of the actual incident, but circumstances cannot fail or be ignored.(Para 22)

The circumstances relied upon by the prosecution should be of a conclusive nature and they should be such as to exclude every other hypothesis except the one to be proved by the prosecution regarding the guilt of the accused. There must be a chain of evidence proving the circumstances so complete so as to not leave any reasonable ground for a conclusion of innocence of the accused.(Para 22)

There cannot be any dispute that a confession made by the accused in police custody is an inadmissible confession. Such confession cannot even be called an extra­judicial confession because of the presence of the police. Be that as it may, if a confession is made by the accused before the police and a portion of the confession leads to the recovery of any incriminating material, such portion alone is admissible under Section 27 of the Indian Evidence Act. If only such portion of the confession relating to the recovery of certain material objects is admitted in evidence and relied upon, then such reliance is in accordance with law.(Para 27)

One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques.(Para 31)

Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts.(Para 32)

Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.(Para 33)

Evidence on superimposition is also based on experts’ opinion. Use of the superimposition technique in Indian investigations for identification purposes is not a new phenomenon. Identification of the deceased through superimposition is an acceptable piece of opinion evidence.(Para 34)

A superimposition test cannot be taken as a conclusive one for the identification of a dead body, because by itself it may not conclusively establish identification.(Para 36)

Though a DNA test helps the Courts immensely in determining the reliability of the identification of the body of the deceased, but if there is presence of other reliable evidence on record in favour of the prosecution version on this aspect, then non­conducting of a DNA test and the reliance on evidence regarding identification through superimposition cannot be said to be improper.(This inference has been drawn on the basis of Para 38)

The doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances.(Para 41)

While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes.(Para 43)

The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial.(Para 44)

Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful.(Para 44)

Copy of judgement: Judgement_29-Mar-2019

-Tushar Kaushik

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