Chhotu v. State of Uttarakhand

shed. He stated that the forensic report confirmed the 3 presence of human blood on the shirt, but it could not be conclusively linked to either the deceased or the accused.

7. The prosecution also examined Kalu (PW-14), the last-seen witness, who initially provided an inconsistent account of the incident. His testimony was first recorded on 12.03.2018 and recalled on

14.03.2018. In his initial statement, he mentioned that the incident occurred on 13.04.2018, but this was later corrected by overwriting to 15.04.2018. The prosecution further contended that the victim’s pajama was missing, which they argued was indicative of an attempted sexual assault. However, no forensic or medical evidence corroborated this claim.

8. The accused’s statements under Section 313 of the Code of Criminal Procedure, 1973 were recorded multiple times on 07.11.2017, 15.03.2018, and

26.03.2018. The trial court convicted Chhotu based on circumstantial evidence, particularly relying on the recovery of the bloodstained shirt. Paigam Rasool was convicted for allegedly assisting in the concealment of this evidence. The judgment of conviction was recorded on 26.03.2018, and the sentence was pronounced the very next day, 27.03.2018, without affording the accused an opportunity to present mitigating factors before sentencing.

9. Based on the prosecution’s case, the trial court convicted Chhotu under Sections 302, 376/511, and 4 201 of the IPC, along with Sections 7 and 8 of the POCSO Act, sentencing him to life imprisonment. Paigam Rasool was convicted under Section 201 IPC and sentenced to seven years of rigorous imprisonment with a fine of Rs. 10,000. Following the conviction and sentencing, the present appeal was filed before this Court.

10. The appellants have challenged the judgment and order dated 27.03.2018 on the following grounds: a. Lack of Conclusive Evidence:Chhotu's conviction is based entirely on circumstantial evidence, without any direct proof linking him to the crime. b. Forensic Findings Do Not Corroborate Prosecution Claims: The forensic report failed to establish any link between the recovered bloodstained shirt and either the deceased or the accused. c. Failure to Prove Attempted Sexual Assault: The prosecution alleged that an attempted sexual assault occurred solely based on the missing pajama of the victim, despite the medical report finding no evidence of sexual violence. d. Procedural Irregularities in Witness Statements: The last-seen witness (PW-14) provided inconsistent statements, with multiple corrections and overwriting in the trial records. 5 e. Denial of a Fair Opportunity Before Sentencing: The trial court recorded the judgment of conviction on 26.03.2018 and pronounced the sentence the very next day,

27.03.2018, without giving the accused a chance to be heard on the question of sentencing. f. Multiple Recordings of Section 313 CrPC Statements: The accused’s statements were recorded multiple (07.11.2017,

15.03.2018,

26.03.2018), raising concerns about procedural fairness and whether the accused was given a clear, stable set of allegations to respond to. g. Failure to Establish Paigam Rasool’s Role: No independent witness testified that Paigam Rasool had knowledge of or participated in the concealment of evidence, making his conviction under Section 201 IPC unsustainable.

11. Having heard learned counsel for the appellants and the learned Deputy Advocate General for the State and upon perusing the entire record, this Court finds that the trial court committed procedural irregularities in convicting the appellants.

12. In the present matter, the conviction of the appellants rests primarily on circumstantial evidence. It is a well-settled principle of criminal jurisprudence that when a case is based entirely on circumstantial 6 evidence, the prosecution must establish a continuous chain of circumstances leading to only one possible conclusion—the guilt of the accused. The chain of event must not be broken and must un-erringly point towards the guilt of the accused. The Supreme Court in Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609, held that circumstantial evidence must be so conclusive that it excludes every other reasonable hypothesis except the guilt of the accused. Any missing link in the chain of circumstances would render the case weak and entitle the accused to the benefit of the doubt.

13. Similarly, the Supreme Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh, (1952) SCR 1091, held that in cases based on circumstantial evidence, the prosecution must establish each fact beyond reasonable doubt and ensure that all circumstances are consistent only with the guilt of the accused. If any reasonable doubt arises or an alternative explanation exists, the accused is entitled to acquittal.

14. In the present case, the prosecution relied on the recovery of a navy blue full-sleeved shirt (Exhibit-10) allegedly belonging to Chhotu, which was found in the garbage shed of co-accused Paigam Rasool. The forensic evidence presented by the prosecution fails to establish any direct connection between the accused and the crime. The bloodstained shirt (Exhibit-10), 7 tested positive for human blood, but did not state that the blood belonged to the accused or the deceased.

15. In the present case, the prosecution relied on the recovery of a navy blue full-sleeved shirt (Exhibit-10) allegedly belonging to the applicant/accused Chhotu, which was found in the garbage shed of co-accused Paigam Rasool. The forensic evidence presented by the prosecution fails to establish any direct connection between the accused and the crime. The shirt, which was sent forensic examination to the FSL, Dehradun, was marked as ‘V’ in the bundle, with the shirt itself labelled as ‘5’ and Exhibit-10. The FSL report confirms the presence of human blood on the shirt but categorically states that the blood stains were from a third human male source. This finding negates the prosecution's claim that the blood on the shirt belonged to Chhotu. Furthermore, report does not substantiate the allegation that the blood stains were that of the deceased. Consequently, the forensic findings fail to establish any incriminating link between the applicant/accused Chhotu and the crime question.

16. Furthermore, DNA analysis (Exhibit-9, Liquid) confirmed the presence of Male DNA (No.2), which did not match the DNA of the accused. Despite the availability of forensic testing, the prosecution did not collect or compare other DNA samples to ascertain the actual source of the male DNA found on the evidence. This omission significantly weakens the claim that 8 Chhotu was responsible for the crime, as no material evidence directly links him to the recovered shirt or the crime scene.

17. The prosecution also failed to provide independent evidence confirming that the recovered shirt belonged to Chhotu or that it was worn at the time of the alleged incident. The absence of direct forensic linkage and independent corroboration creates a gap in the chain of circumstances. Suspicion, however strong, cannot be a substitute for proof. Since the prosecution has not conclusively demonstrated a direct link between the recovered article and the accused, the conviction on the basis of circumstantial evidence alone legally unsustainable. Accordingly, the benefit of the doubt must be extended to the appellants.

18. A fundamental aspect of a fair trial is ensuring that the accused has an opportunity to explain the circumstances appearing against them. Section 313 of the Code of Criminal Procedure (CrPC) mandates that the accused must be questioned fairly, allowing them to present their defence without ambiguity or undue pressure.

19. The Hon’ble Supreme Court in Swapan Kumar Chatterjeevs CBI, (2019) 14 SCC 328, held that:- “It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. 9 The power is to be exercised only for strong and valid reasons, and it should be exercised with caution circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.”

20. In Ajay Singh v. State of Maharashtra, (2007) 12 SCC 341, the Hon’ble Supreme Court observed that repeated examination of an accused under Section 313 CrPC, without reasons, inconsistencies, confusion, and potential prejudice against the accused. The object of Section 313 CrPC is to offer a fair opportunity for the accused to explain the evidence against them, not to subject them to repeated interrogations that might weaken their defence or compel self-incrimination.

21. The Hon'ble Supreme Court, in various rulings like State (NCT of Delhi) vs. Shiv Kumar Yadav: (2016) 2 SCC 402 and V. N. Patil v. K. Niranjan Kumar, (2021) 3 SCC 661 has observed that a mere assertion that recall was necessary "to ensure a fair trial" is insufficient, unless there are tangible reasons 10 demonstrating how the fairness of the trial was compromised in the absence of recall. Recall is not an automatic entitlement, and the discretion vested in the court must be exercised judiciously to prevent a miscarriage of justice, rather than arbitrarily.

22. In the present case, the statements of the accused recorded multiple times—on 07.11.2017,

15.03.2018,

26.03.2018—without sufficient justification for these repetitions. The frequent re- recording of statements without clear reasoning raises serious concerns about procedural fairness.

23. Moreover, Section 138 of the Indian Evidence Act, 1872, plays a crucial role in ensuring the integrity of witness examination by mandating that any significant corrections or additions made after cross-examination are subject to procedural safeguards. This provision is designed to prevent the unfair introduction of new evidence or the modification of statements in a manner that could disadvantage the opposing party.

24. In Mohanlal ShamjiSoni v. Union of India, 1991 Supp (1) SCC 271, the Supreme Court reinforced this principle by underscoring the limited scope of the power granted under Section 311 of the Code of Criminal Procedure (CrPC). The Court held:- i. “that while this provision permits the recall or summoning of witnesses at any stage of the trial, it should be exercised solely to bring out the truth and facilitate a just 11 decision. The power must not be misused to unfairly alter the course of proceedings, particularly after the prosecution has closed its evidence. The judgment emphasized that judicial discretion under Section 311 CrPC must be exercised in a manner that does not prejudice accused or compromise the fairness of the trial.”

25. In the present case, the repeated modifications to the witness statements or evidence after cross- examination constitute a direct violation of these safeguards. Such alterations are not mere aberrations and not only undermine the credibility of the judicial process but also deprive the defence of its right to a fair trial. The procedural fairness required under Section 138 of the Evidence Act is eroded when modifications are made without affording the defence an adequate chance to challenge them.

26. Another crucial aspect of a fair trial is the principle that conviction and sentencing must be treated as distinct stages, allowing the accused an opportunity to present mitigating factors before the sentence is imposed. Section 235(2) of the Code of Criminal Procedure (CrPC) mandates that once a conviction is recorded, the accused must be heard separately on the question of sentencing. This safeguard ensures that relevant personal circumstances, including age, background, and any mitigating factors, are duly 12 considered before determining the appropriate punishment.

27. The Supreme Court, in Santa Singh v. State of Punjab, (1976) 4 SCC 190, emphasised that a proper hearing on sentencing is a fundamental right of the accused, and failure to comply with Section 235(2) CrPC renders the sentencing process defective. The Court held that sentencing is not a mere formality but a distinct judicial function requiring due application of judicial mind. Similarly, in Malkiat Singh v. State of Punjab, (1991) Supp (4) SCC 600, the Supreme Court reiterated that the absence of a separate hearing before sentencing amounts to a violation of the principles of natural justice.

28. In the present case, the trial court recorded the accused's conviction on 26.03.2018 and proceeded to pronounce the sentence the very next day, on

27.03.2018, without affording the accused a reasonable opportunity to present mitigating circumstances. The absence of a separate hearing deprived the accused of the right to place relevant factors on record that could have influenced the quantum of punishment.

29. The Supreme Court, in Anand Sharma v. State of Jharkhand, (2020) 4 SCC 509, stressed that sentencing must not be a mechanical exercise and that courts are bound to consider individual circumstances before imposing a penalty. The failure to conduct an independent sentencing hearing in this case, therefore, 13 constitutes a serious procedural lapse that undermines the legitimacy of the sentence imposed.

30. A conviction under Section 201 of the Indian Penal Code (IPC) requires the prosecution to establish three essential elements: (i) the commission of an offense, (ii) knowledge of the offense by the accused, and (iii) an act of concealment or destruction of evidence by the accused with the intent to screen the offender from legal consequences. Mere possession of a place where evidence is found does not automatically establish guilt unless the prosecution can prove active participation in the concealment.

31. In the present case, the trial court convicted Paigam Rasool under Section 201 IPC on the ground that a bloodstained navy blue full-sleeved shirt (Exhibit-10) was recovered from a garbage storage facility owned by him. However, there is no direct or independent evidence proving that Paigam Rasool had knowledge of the crime or that he intentionally concealed the shirt to protect the accused, Chhotu.

32. The prosecution’s solely relies circumstantial evidence, which, as established Palvinder Kaur v. State of Punjab, (1952) SCR 94, is insufficient unless it conclusively proves knowledge and intent to obstruct justice. 14

33. In the present case, the Investigating Officer (PW- 3) deposed that the bloodstained shirt was found in the garbage shed owned by Paigam Rasool, but there is no material evidence proving that he placed it there or was even aware of its presence. The absence of corroborative evidence linking him to the act of concealment raises serious doubts about prosecution’s case. Additionally, forensic analysis, while confirming the presence of human blood on the shirt, failed to establish a direct link between the shirt and either the accused or the deceased. It also raises a fair Court, as whether the shirt actually belonged to the accused. The place from where it is alleged to have been recovered being garbage collection centre and many having access, it incumbent upon the prosecution to prove that the shirt actually belonged to A-1.

34. The Supreme Court in Sanatan Naskar v. State of West Bengal, (2010) 8 SCC 249, held that to secure a conviction under Section 201 IPC, the prosecution must establish a clear nexus between the accused’s actions and the obstruction of justice. Mere conjectures or suspicions cannot substitute for legal proof. In this case, the prosecution has not provided any concrete evidence to demonstrate that Paigam Rasool was aware of the shirt’s presence, let alone that he had the intent to conceal evidence. 15

35. Thus, the absence of any independent corroboration proving knowledge and intent, the conviction of Paigam Rasool under Section 201 IPC is legally unsustainable. The prosecution has failed to discharge its burden of proof beyond a reasonable doubt, necessitating reconsideration of his conviction.

36. In light of the above, the judgment and order dated 27.03.2018 passed by the Learned Additional Sessions Judge/Special Judge, POCSO, Haridwar, in Sessions Trial No. 22 of 2015, is hereby set aside. The appeal is allowed. The appellants are acquitted of all charges and shall be released forthwith unless required in any other case. G. NARENDAR, C.J. ASHISH NAITHANI, J. Dt:21stFebruary, 2025 16