16½-hour gap in “last seen” evidence leaves chain incomplete; Gauhati High Court acquits death-row man in child rape-murder case

The accused was prosecuted in connection with the disappearance and death of a minor girl whose body was recovered from a jungle at Pub Nandapur on 27.02.2020.

The prosecution alleged offences under Sections 302 and 376(A) of the IPC and Section 6 of the POCSO (Amendment) Act, 2019.

The prosecution case principally rested on the deceased allegedly being last seen with the accused, an alleged extra-judicial confession, a judicial confession under Section 164 CrPC, medical evidence, and the accused’s conduct in removing the body.

The Additional District and Sessions Judge, Hojai convicted the accused and sentenced him to death on 08.02.2021 and 10.02.2021 respectively.

The matter reached the High Court through the accused’s criminal appeal and the statutory death sentence reference.

The High Court independently reappreciated the evidence because the case involved both an appeal against conviction and a reference for confirmation of the death sentence.

It found no eyewitness to the actual occurrence and treated the prosecution case as one based entirely on circumstantial evidence.

Whether the prosecution established a complete and unbroken chain of circumstantial evidence proving beyond reasonable doubt that the accused committed the homicidal death and alleged sexual assault of the minor?

Whether the evidence of the deceased being last seen with the accused was sufficiently proximate and reliable to support conviction?

Whether the alleged extra-judicial confession and reconstruction of the occurrence were admissible and reliable, particularly when made while the accused was in police custody?

Whether the judicial confession under Section 164 CrPC, containing both inculpatory and exculpatory portions, could independently sustain the conviction after the explanation of accidental death was rejected?

Whether Section 106 of the Evidence Act or the accused’s allegedly false explanation and denial under Section 313 CrPC could fill the evidentiary gaps in the prosecution case?

Whether the death sentence should be confirmed by the High Court?

The Court applied Sections 302 and 376(A) IPC and Section 6 of the POCSO (Amendment) Act, 2019, concerning murder, aggravated sexual assault resulting in death, and aggravated penetrative sexual assault respectively.

For circumstantial evidence, it relied on Sharad Birdhichand Sarda v. State of Maharashtra and Hanumant v. State of Madhya Pradesh, holding that every circumstance must be fully established, must point only to the guilt of the accused, must exclude every reasonable hypothesis consistent with innocence, and must form a complete chain.

The Court applied the last-seen principle from Bodh Raj v. State of Jammu and Kashmir, State of Goa v. Sanjay Thakran, Ganpat Singh v. State of Madhya Pradesh, and Satpal v. State of Haryana, under which last-seen evidence is weak where a substantial time gap permits intervention by another person.

The alleged police-custody confession was assessed under Sections 25, 26 and 27 of the Evidence Act, while the judicial confession was considered under Section 164 CrPC and the principles in Pyare Lal Bhargava, Palvinder Kaur, and Nishi Kant Jha, requiring the confession to be voluntary, truthful, and read as a whole.

Section 106 of the Evidence Act was governed by the rule in Sambhu Nath Mehra and Trimukh Maroti Kirkan that it does not shift the prosecution’s primary burden or cure failure to establish foundational facts.

A false explanation or denial may provide an additional link only where the prosecution has already established a complete chain; it cannot supply a missing link.

The Court held that PW-1, PW-2 and PW-11 did not provide direct last-seen evidence; their material assertions were hearsay.

PW-3 was the only substantive last-seen witness, but her evidence showed merely that the accused and the deceased were together at approximately 1:00 p.m. on 26.02.2020.

The body was recovered around 5:30 a.m. the next day, leaving a gap of approximately 16½ hours, and neither the medical evidence nor other evidence excluded intervention by another person.

The alleged extra-judicial confession was inadmissible under Sections 25 and 26 of the Evidence Act because the accused was already in police custody when the witnesses were summoned to the police station; the reconstruction similarly yielded no discovery of a new fact and had no independent evidentiary value.

Although the judicial confession was found to have been recorded after substantial compliance with Section 164 CrPC and was not rejected as involuntary, it did not amount to an unqualified confession of guilt.

The accused admitted taking the child to a jujube tree and removing her body but claimed that her death resulted from an accidental blow and denied strangulation and sexual assault.

Medical evidence disproved the accidental-death explanation by establishing death from strangulation, but rejection of that explanation did not independently prove that the accused caused the strangulation.

The medical and forensic evidence established homicidal death but did not identify the perpetrator; no incriminating forensic material, weapon, or article connecting the accused with the offence was recovered.

The accused’s conduct in removing the body and his false explanation generated strong suspicion but could not substitute for proof.

Since the prosecution failed to establish that the accused remained in the deceased’s exclusive company until her death, Section 106 of the Evidence Act and the accused’s Section 313 CrPC answers could not be used to complete the chain.

It failed to prove beyond reasonable doubt that the accused committed the strangulation or the alleged sexual assault.

The conviction and death sentence were therefore set aside, and the accused was acquitted by extending the benefit of reasonable doubt.

The Death Sentence Reference was answered in the negative and rejected, while Criminal Appeal No. 80/2021 was allowed.

The accused was directed to be released forthwith unless required in another case.

The trial court’s direction concerning victim compensation under Section 357-A CrPC was left undisturbed, with an expectation of expeditious compliance.