Dashwanth vs. The State Of Tamil Nadu

2025 INSC 1203
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
1
Sessions Judge, Mahila Court, Chengalpet in
Special Sessions Case No. 33 of 2017 for the offences
punishable under Sections 363, 366, 354-B, 302,
2
and 201 of the Indian Penal Code, 1860 and Section
8 read with Section 7 and Section 6 read with Section
5(m) of the Protection of Children from Sexual
3
Offences Act, 2012 . The trial Court, vide judgment
th
of conviction and order of sentence dated 19

1
Hereinafter, referred to as ‘trial Court’.
2
For short, ‘IPC’.
3
For short, ‘POCSO Act’.
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2025.10.08
16:28:43 IST
Reason:
1


4
February, 2018 convicted the accused-appellant for
the aforementioned offences and sentenced him in
the terms indicated below: -

3. Being aggrieved, the appellant preferred an
5
appeal before the High Court of Judicature at
6
Madras for assailing his conviction and the
sentences awarded to him. The trial Court also
7
forwarded a reference under Section 366 of the Code
8
of Criminal Procedure, 1973 for confirmation of the
death sentence. The learned Division Bench of the
th
High Court vide common judgment dated 10 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’.
2


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
9
seven-year old female child victim , being the
10
daughter of C.S.D. Babu (PW-1) and Sridevi (PW-2),
th
went missing on 5 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.
11
Babu (PW-1) filed a complaint at Mangadu Police
th
Station at around 10:00 p.m. on 5 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
3


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
th
arrested on 8 February, 2017 at about 9 a.m. He
allegedly confessed and made a disclosure
12 st
statement to N. Ravikumar, 1 Investigation Officer
13
(PW-29) 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
th
8 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)’.
4


14
report 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
15 16
mahazar and a rough site sketch of the place from
where the body of the victim was recovered. The
appellant also identified the blue-coloured travel
17 18
bag in which undergarments worn by the victim
19
and two cold drink bottles 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.
5


20
(PW-29) prepared the observation mahazar and site
21 22
inspection plan of the said flat. The jeans pant and
23
t-shirt allegedly worn by the appellant at the time
of commission of the offence were recovered from the
24 25
flat and the earrings and anklets of the victim
26 27
along with the ATM card , PAN card , and identity
28
card of the appellant were also recovered from his
29 30
purse during this sequence. Recovery of a helmet
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.
6


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
th
examination on 13 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
31 32
bottles recovered from the blue bag . 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.
7


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
nd
was assigned to R.D. Vivekanandan, 2 Investigation
33
Officer (PW-30) 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)’.
8


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
th
was that he returned from his office on 7 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
9


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
th
order of sentence dated 19 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 common judgment
vide
th
dated 10 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
10


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
34
(PW-3) , 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
th
6 February, 2017. It was, thus, submitted that the

34
Hereinafter, referred to as ‘Murugan (PW-3)’.
11


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
th
appellant was apprehended by police officials on 7
February, 2017, and was kept in illegal custody at
12


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
th
mother at 6:00 p.m. on 5 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;
13


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
th
search party till 4:00 a.m. in the morning of 6
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.
14


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
th
till 4:00 a.m. in the morning of 6 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
15


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
16


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
17


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
th
was framed against the appellant on 24 October,
2017 and the calendar for the summoning of the
th
witnesses was finalised on 20 November, 2017.
However, compliance with the mandatory
requirement of Section 207 CrPC, i.e., providing
copies of the relied upon documents to the accused,
th
was ensured only on 13 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
18


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
th
first time, on 13 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
th
was commenced from 18 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
th
was pronounced on 19 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
19


this Court in the cases of Bachan Singh v. State of
35 36
Punjab , Santa Singh v. State of Punjab ,
37
Allauddin Mian and Ors. v. State of Bihar ,
38
Malkiat Singh v. State of Punjab , and Dattaraya
39
v. State of Maharashtra
.
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.
20


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
21


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.
22


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: -

23

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
th
to him on 13 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
40
CrPC (Section 230 BNSS ), the charges were framed
th
against the appellant on 24 October, 2017, who was
unrepresented on that date. The schedule for
examination of 30 prosecution witnesses was fixed
th
for four days starting from 18 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.
24


choice or a legal aid counsel in gross disregard to the
mandate of Articles 21 and 22(1) of the Constitution
41
of India and the guidelines issued by NALSA . 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
th
appellant only on 13 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.
25


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
42
Pradesh , in capital punishment offences, a

42
2019 SCC OnLine SC 1637.
26


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
27


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
th
19 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
43
Singh v. State of Punjab , Santa Singh v. State
44
of Punjab , Allauddin Mian and Ors. v. State of

43
Supra Note 35.
44
Supra Note 36.
28


45 46
Bihar , Malkiat Singh v. State of Punjab , and
47
Dattaraya v. State of Maharashtra .
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.
29


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.
48
iv. Forensic Science Laboratory 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”.
30


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
49
Birdhichand Sharda v. State of Maharashtra ,
wherein it was held that:

49
(1984) 4 SCC 116.
31

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
32


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
50
manifest from the complaint filed by the
complainant (PW-1) to S. Aanandha Kumar (PW-27),
Sub-Inspector posted at Mangadu Police Station, on
th
5 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.
33


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
th
victim in the company of the appellant on 5
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
nd
circumstance of last seen together to the 2
th
Investigating Officer (PW-30) only on 24 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
34


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
th
7 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
35


complainant (PW-1) allegedly told him that the
appellant was seen carrying a travel bag on a
motorbike. The complainant (PW-1) further stated
th
that in the morning of 8 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
th
police informed him on 7 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
36


th
to the temple on 6 February, 2017 and both of them
th
had watched the CCTV camera footage of 5
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
37


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),
38


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: -
39


“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 the 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): -
th
i. That on 7 February, 2017, Mangadu
Police informed him that they had watched
the CCTV footage and found the
40


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
st
the 1 Investigation Officer (PW-29).
th
iii. That in the morning of 8 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.
41


th
iv. That on 9 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
th
picked him up on 7 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
th
absconding and was nabbed on 8 February, 2017.
th
The appellant was shown to be arrested on 8
February, 2017 at 9:00 a.m. However, going by the
version of the complainant (PW-1), by that time, the
42


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
th
arrested on 8 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
th
apprise complainant (PW-1) in the morning of 8
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
th
from his house in the early hours of 7 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
43


complainant regarding the location where the body of
th
the victim had been disposed of, in the morning of 8
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
51
mention of the said bag in the observation
mahazar
52
and the rough sketch . 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.
44


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
th
examination-in-chief that on 8 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,
45


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
46


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
th
appellant had been illegally detained on 7 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
th
morning of 8 February, 2017 and told that
Dashwanth (appellant herein) had murdered his
daughter (victim herein). Not only this, the minute
47


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 and
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
48


confessional statement of an accused which
distinctly leads to the discovery of a material fact can
53
be permitted to be tendered in evidence. 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.
49


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
50


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 would
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
51


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
54
drawing up of the observation mahazar , a rough
55
sketch 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
56
observation .
mahazar

54
Supra note 15.
55
Supra note 16.
56
Exhibit P-7.
52


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
53


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
54


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
55


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
56


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 of
malkhana
the police station or any other appropriate place of
safekeeping before transmission to FSL. The
prosecution has tried to project through the evidence
57


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.
58


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
57
letter , 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.
59


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
58
of Maharashtra
. 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.
60


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 Forensic
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
61


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)
nd
72. R.D. Vivekanandan (PW-30) was the 2
Investigating Officer in the case. He took over
st
investigation from N. Ravikumar, 1 Investigating
nd
Officer (PW-29) on 22 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
th
of 5 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.
62


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
th th
from 5 February, 2017 to 8 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
st
their statements to 1 Investigating Officer (PW-29).
th
The witness recorded their fresh statements on 24
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 building.
Furthermore, Pushpa (PW-11) also for the first time
63


nd
disclosed to 2 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
nd
investigation undertaken by 2 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
st
to narrate these vital facts to N. Ravikumar, 1
Investigating Officer (PW-29) at the earliest available
opportunity.
74. The witness (PW-30) also stated that upon
th
receiving the Court order on 6 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.
64


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.
59
75. The DNA analysis reports were proved by
Nirmalabai Davidson (PW-28), Scientific Officer, FSL,
th
Chennai. She deposed that on 10 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.
65


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
th
biological division on 7 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
th
Court on 8 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
66


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,
th
and the appellant came to be arrested on 8
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
67


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
60
the said DNA profiling reports .
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.
68


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, ., (i) last seen
viz
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
69


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
th
19 February, 2018 passed by the trial Court and the
th
judgement dated 10 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.
70


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.



71