Uncertain last-seen evidence and doubtful Section 27 discovery cannot sustain conviction on circumstantial evidence.

Mangal Paik, who had worked with the deceased child’s father and stayed at the family’s house on 16.12.2018, was present when the child’s parents left for work on 17.12.2018. The five-year-old victim subsequently went missing and was allegedly seen accompanying the appellant. The appellant claimed that he had left her midway. Villagers apprehended him, and the police took him into custody on 17.12.2018. The victim’s mother lodged an ejahar alleging abduction, leading to registration of Sootea P.S. Case No. 206/2018.

The prosecution examined 16 witnesses and relied entirely on circumstantial evidence, including the appellant’s presence at the house, the alleged “last seen” evidence, his conduct after the child disappeared, the alleged discovery of the body from a pond at his instance, and medical evidence of rape and homicidal death. The trial court convicted him under Sections 302, 363, 376-A and 201 IPC read with Section 6 of the POCSO Act, 2012, and sentenced him to death on 21.12.2020. The appellant preferred Criminal Appeal (J) No. 14/2021, and the trial court’s death sentence was referred for confirmation in Death Sentence Reference No. 1/2021.

Whether the prosecution established a complete chain of circumstantial evidence proving beyond reasonable doubt that the appellant committed the rape and murder of the victim.

Whether the evidence of PW-2, PW-7 and PW-9 established a legally reliable “last seen together” circumstance, despite their materially different accounts regarding the time when the victim was seen with the appellant.

Whether the alleged disclosure by the appellant in police custody led to a legally admissible and reliable discovery of the concealed body under Section 27 of the Evidence Act.

Whether the appellant’s conduct, alleged false explanation and the principle under Section 106 of the Evidence Act could cure the deficiencies in the prosecution’s foundational evidence.

The Court applied the principle that, in a case based on circumstantial evidence, every circumstance must first be fully established, the proved circumstances must be consistent only with the guilt of the accused, and the cumulative chain must exclude every reasonable hypothesis consistent with innocence; grave suspicion cannot substitute legal proof, as stated in Hanumant v. State of Madhya Pradesh and Sharad Birdhichand Sarda v. State of Maharashtra.

Under Sections 25 and 26 of the Evidence Act, confessions made to police officers or while in police custody are generally inadmissible, while Section 27 permits only that limited portion of information which distinctly relates to a fact discovered, consistent with Pulukuri Kotayya v. King Emperor. Recovery pursuant to disclosure must therefore be proved as having occurred in consequence of the accused’s information; mere recovery or disclosure does not automatically establish commission of the offence, as recognised in Mustkeem @ Sirajuddin v. State of Rajasthan.

The “last seen” principle and Section 106 of the Evidence Act may require an accused to explain when and how he parted company with the deceased, but only after the prosecution establishes the foundational facts; Section 106 cannot discharge the prosecution’s primary burden, consistent with State of Rajasthan v. Kashi Ram. The Court also applied Kanhaiyalal v. State of Rajasthan, holding that last-seen evidence alone does not establish the commission of the crime and must be supported by an additional connecting circumstance.

The substantive charges arose under Sections 302, 363, 376-A and 201 IPC read with Section 6 of the POCSO Act, 2012.

The Court accepted that the appellant had stayed at the victim’s house, that the child was seen accompanying him at some point during the relevant day, that biscuits were purchased for her, that she later disappeared, and that the appellant’s subsequent conduct was suspicious.

However, the “last seen” circumstance was materially weakened because PW-2 placed the event at approximately 9:00 a.m., PW-9 at approximately 2:30 p.m., and PW-7 could not specify the time; the medical evidence did not establish the probable time of death or bridge this temporal gap.

The medical evidence conclusively established brutal sexual assault and homicidal death but did not identify the offender.

The alleged discovery was also not proved with the certainty required by Section 27. The Investigating Officer stated that the appellant led the police to and identified the concealed body, whereas PW-10 described a search by police and villagers without stating that the appellant pointed out the place, and PW-11 gave a partially different account while admitting that the appellant was absent when the body was recovered.

The absence of a contemporaneous recovery memorandum was not independently fatal, but became significant because the prosecution witnesses gave materially inconsistent versions and the independent witnesses did not corroborate the Investigating Officer on the essential fact of discovery in consequence of the appellant’s information.

The appellant’s alleged false explanation and suspicious conduct could provide, at most, additional corroboration; they could not supply the missing links in the prosecution’s case. Similarly, Section 106 could not be invoked because the prosecution had not first established a definite last-seen circumstance or a reliable discovery connecting the appellant with the crime.

The Court therefore held that the evidence generated grave suspicion but did not establish an unbroken chain excluding the reasonable possibility of intervention by another person.

Accordingly, the judgment of conviction and death sentence dated 21.12.2020 was set aside, the appellant was acquitted of all charges by giving him the benefit of doubt, and he was directed to be released forthwith unless required in another case.

The Death Sentence Reference was rejected and Criminal Appeal (J) No. 14/2021 was allowed.

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