Investigating Officer’s Role Is to Collect Evidence, Not Create It: Supreme Court

The Supreme Court has dismissed the State of Himachal Pradesh’s appeal against the acquittal of a woman accused of murdering her step-mother and step-brother, holding that the prosecution failed to prove the incriminating circumstances beyond reasonable doubt or to establish a complete chain. A significant part of the reasoning concerns how an Investigating Officer (IO) identifies and records witnesses. Reiterating that “the role of the investigating officer is to collect evidence and not to create one”, the Court found that the unexplained recording of the statements of two key witnesses dented their credibility.

Background

The State appealed against the judgment dated 28.07.2014 of the High Court of Himachal Pradesh at Shimla, which allowed the accused’s appeal (Criminal Appeal No. 28 of 2013) and set aside her conviction under Section 302 of the Indian Penal Code, 1860. The conviction had been recorded by the Court of Session, Chamba, on 07.11.2012 in Sessions Trial No. 48 of 2011.

On 07.09.2011, Bhagi Ram (PW-1) informed the police that his daughter, Mithilesh Kumari (D-1), had been missing for 6-7 days and that her house was locked. The report mentioned a foul odour coming from the house. The police entered, allegedly after breaking the lock, and found the bodies of D-1 and her minor son, Bhupinder Singh (D-2). The autopsy revealed that the deaths were homicidal, due to strangulation, and might have occurred 5 to 7 days earlier.

The Prosecution Case

D-1 was the second wife of Amar Singh. The accused, Anchla alias Chanchla, was born from Amar Singh’s first wife. She lived in Chamba and visited D-1 every 2-3 months. According to PW-1, when he visited D-1’s house on the evening of 31.08.2011, he noticed the accused there, and D-1 told him the accused would stay overnight. The next day the house was found locked. When D-1 did not return for 6-7 days and a foul odour began to emanate, the police were informed. The accused was suspected of committing the murders to grab property that her father had allegedly bequeathed to D-2.

The prosecution relied on, among other things:

• Taxi driver Vijay (PW-4), who stated that he brought the accused from Chamba to Diur on the evening of 31.08.2011 and took her back late that night, when she stayed at a hotel, and who noticed a bleeding injury on her hand. Suresh Kumar (PW-18), a hotel worker in Chamba, was examined to confirm that he saw the accused at the hotel that night.
• A disclosure statement made after her arrest, leading to recovery of a bunch of keys and D-1’s mobile phone (without SIM), and an OPD slip showing she had sutures put on her hand on 01.09.2011.
• Articles collected by a forensic team from the house, including bedsheets, quilt cover and scrapings from the floor and a trunk.
• Call Detail Records (CDRs) of the mobiles of the deceased and the accused.
• An FSL report stating that the DNA profile from the accused’s blood sample matched dried blood collected from the house, and that the recovered keys operated the broken lock.

In her statement under Section 313 CrPC, the accused denied the incriminating circumstances, except the relationships, her arrest and blood sampling, and the fact that she had suffered an injury to her hand, which she said was crushed in a car door while travelling to Mani Mahesh. She examined a defence witness to show that travel.

Trial Court and High Court

The Trial Court convicted the accused on a chain of circumstances: the homicidal deaths; the bodies being found in a house locked from outside; D-1 being last seen alive with the accused present on 31.08.2011; the accused being brought by PW-4 to a Chamba hotel around 2.30 AM with a thumb injury; treatment of that injury on 01.09.2011; the recovery of the mobile and keys on her disclosure; and the DNA match. It held that these formed a chain pointing unerringly to her guilt.

The High Court reversed the conviction. It noted that PW-1’s claim of seeing the accused talking to D-2 was absent from his earlier Section 161 CrPC (Section 180 BNSS) statement, and that the motive (a bequest to D-2) was not proved. It also noted PW-1’s admission that D-1 had given him a room in her house, and the information that two men, Shokat and Noora, had been asking about D-1’s properties days before the deaths.

It found PW-4 doubtful because he did not notice blood in his vehicle despite providing first aid for a bleeding injury, and because he issued no receipt; it discarded PW-18 because no hotel record was produced. It also held that the identity of the lock found on the door was not established.

Further, it found that PW-1’s silence for 6-7 days weakened his credibility, that third-party involvement ought to have been investigated, and that the DNA match was not conclusive since the accused’s presence at the house was not proved and her blood could have been planted after she gave her sample.

Submissions

The State argued that the High Court had discarded critical evidence on conjecture and surmise; that there was no basis to hold the accused’s blood was planted, particularly as her sample was taken after the forensic team had collected materials from the scene; that the presence of her blood at the scene, coupled with a bleeding injury that night and no explanation from her, pointed to her guilt; that PW-1, PW-4 and PW-18 were wrongly discarded; and that the keys conclusively linked her to the crime. The State submitted that acquittal was a perverse view.

The accused argued that last-seen evidence is weak, especially given the gap of about a week before the bodies were found; that PW-1’s conduct did not inspire confidence; that PW-4 and PW-18 appeared to have been made up to create a chain, and no hotel record existed; that the DNA evidence was inconclusive as she visited the house regularly and evidence is easily created; that the recovery of keys was denied and the lock was found on the door handle, not the latch; and that no motive was proved.

The Supreme Court’s Reasoning

Scope of interference with an acquittal

The Court reiterated that it is reluctant to interfere unless the acquittal is contrary to the evidence, palpably erroneous or perverse, and that if the High Court’s view is one of the possible views, it does not call for interference merely because another view is possible. At the same time, there is no embargo on reviewing the evidence, and interference is warranted where relevant and convincing evidence has been unjustifiably discarded.

Referring to Rajesh Prasad v. State of Bihar, the Court noted the circumstances in which an acquittal may be reversed, and concluded that where cogent evidence is discarded on non-sustainable grounds, the appellate court can reach its own conclusion on the record. It also restated the settled test for circumstantial evidence: circumstances must be fully established, be of conclusive nature, and form a chain so complete as to leave no reasonable ground consistent with innocence.

The IO’s role: collecting, not creating, evidence

The central part of the judgment deals with PW-4 and PW-18. Having noted that, if accepted, their testimony would substantiate the accused’s presence at Diur, lend assurance to PW-1 and explain the presence of her blood at the scene, the Court examined their credibility. It identified two circumstances that dented it: there was no indication in the testimony of the IO (PW-20) of what prompted him to record their statements, and PW-20, despite repeated questions, did not give the dates on which the statements were recorded.

The Court explained why these seemingly minor points matter. To a lay person they may seem irrelevant, but “to a trained judicial mind” the circumstances in which a witness’s statement came to be recorded help determine whether the person is a natural witness who knows relevant facts or one who has been set up to create evidence. A responsible person who knows of an incriminating circumstance may inform the police; but where what a person knows is not in itself incriminating or relevant, there is no likelihood of that person approaching the police. Hence the why, when and in what circumstances of recording a statement is “an important tool” in assessing credibility.

The Court then stated the principle: the role of the investigating officer is to collect evidence and not to create one. Where there is no occasion for the IO to record a person’s statement, or for that person to give information to the police, yet the police record the statement without narrating why it was considered necessary, a serious doubt arises as to whether the witness has been set up to create evidence.

The Court was careful to note that this is not a bar on legitimate investigative steps. An IO may pick up clues from one statement to record another, and that is “completely bona fide”. For example, after recording A’s statement, the IO may learn that B may know something relevant and is justified in recording B’s statement. But if the IO straightaway records B’s statement with no palpable reason to believe B has relevant information, and B has no reason to approach the police, suspicion arises whether the exercise was undertaken just to create evidence. Lack of explanation “may dent the credibility” of B.

The Court also described the ordinary routes by which witnesses are properly identified: persons present at the scene or likely to be aware of the crime; persons who, by virtue of their relationship with the victim or the accused, are likely to have relevant information; persons in contact with the victim or accused as revealed by CDRs; and information emerging from a disclosure statement of the accused.

Where a person does not even know that the information he holds is incriminating, he is unlikely to report it, and in such cases what propels the IO to record his statement becomes important. Failure to disclose the reason may dent the witness’s credibility, as it may reasonably be inferred that the witness has been set up.

Application to PW-4, PW-18 and PW-20

Applying these principles, the Court observed that PW-20 “ducks the question and feigns ignorance” as to when he recorded the statements of PW-4 and PW-18, and offered no explanation of what prompted him to record them. Importantly, PW-20 did not say that the accused, in her disclosure statement, had spoken of travelling by taxi from Chamba to Diur and back, or of staying at the hotel. He said only that she had stated she could get the keys and mobile recovered. The Court therefore held that the statements of PW-4 and PW-18 “appear to have been recorded only to create evidence”.

The Court added that PW-1 did not say he saw the accused arriving in a taxi, so what prompted the IO to record PW-4’s statement was “a mystery”. It considered it remote that PW-4 would on his own go to the police, because travelling in a taxi, or staying in a hotel, is not by itself an incriminating circumstance that would prompt a person to report it. The lack of any explanation was held sufficient to regard them as witnesses set up to create evidence for constituting a chain of circumstances.

The Court gave further reasons. It agreed with the High Court’s observation that PW-4 saw no blood in his vehicle despite a bleeding injury, calling it not sufficient by itself but an added reason for doubt. It found that if the accused had hired the taxi from Chamba, there was no need for her to stay overnight at a hotel in Chamba rather than go home. As to PW-18, he admitted that the record of the accused’s stay was not handed to the police, and the absence of a guest record, which hotels ordinarily maintain, seriously impaired his credibility. The Court held that their statements were not trustworthy and unworthy to serve as corroboration of the last-seen circumstance.

The Court returned to the point while discussing the thumb injury. PW-4 stated in cross-examination that the police contacted him about 9-10 days later and that the Dy SP asked him whether he knew the accused, upon which he narrated the incident.

The Court read this as showing that his statement was recorded after the accused’s arrest. By then, the police had noticed the injury and held the OPD slip, and so “had the opportunity to weave a story” about a bleeding thumb injury carried from the scene of crime. PW-20 had not said the accused disclosed travelling to Diur in PW-4’s taxi, so the need to call PW-4 to the police station “remains a mystery”, and the possibility of PW-4 being used “as a tool to weave a story” appeared more probable. The Court held that although the injury was proved, it carried little weight, particularly as the accused had offered an explanation and voluntarily handed over the OPD slip.

Other Circumstances Examined

Homicidal death and time of death: The Court accepted, on PW-7’s evidence, that both deaths were homicidal. However, the autopsy was on 08.09.2011 and the doctor’s opinion was that death occurred 5-7 days earlier, so the possibility of death after 01.09.2011 was not ruled out.

Last-seen evidence: The Court described this as the core of the prosecution case, resting on PW-1 alone. PW-1 had not interacted with the accused on 31.08.2011, and his statement that he saw her talking to D-2 was an improvement on his earlier statement. His earlier statement also said D-1 had responded from inside the house about the accused staying, which differed from his deposition.

It was therefore unsafe to rely solely on him. Further reasons to doubt him were his unexplained silence for 6-7 days despite living and running a shop nearby and having been given a room in D-1’s house, with no investigation into his Mani Mahesh explanation. Considering the medical evidence, the investigative lapses, the improvement and the delay, the Court said the High Court’s view that PW-1 was unreliable could not be faulted, and held that last-seen was not proved beyond reasonable doubt.

Taxi journey and hotel stay: For the reasons already discussed, the Court held that the testimonies of PW-4 and PW-18 on the Chamba-Diur journey and the hotel stay were neither trustworthy nor reliable.

CDR and tower location: The CDRs on record did not disclose tower locations, which could have shown whether the two mobiles were near each other and whether D-1’s mobile moved to the accused’s residence. The CDR of D-1’s mobile was not even exhibited, and PW-20 did not say whether her mobile was operative after 31.08.2011. The Court called non-collection of tower locations “a serious investigational lapse”. Such data could have corroborated or demolished the prosecution story, including PW-1’s claim that D-1’s phone was switched off.

Lock and keys: Recovery of keys would be relevant only if it was proved beyond reasonable doubt that the lock broken to enter the house was the one sent to the laboratory and tested. PW-3, who identified the lock, said that when he reached the spot, the lock was on the handle of the door, not the latch. PW-15 spoke of the lock being broken in his presence but did not identify the lock produced in court, and PW-20 was not even present when the lock was broken.

The Court held that it was not established that the broken lock and the lock sent for examination were the same, rendering the recovery of keys inconsequential, particularly as it was denied under Section 313 CrPC. It also found it unreasonable that the accused, who lived elsewhere, would lock the door and take the keys away, calling the recovery artificial.

Mobile phone: The recovery of D-1’s mobile from the accused’s house was doubtful because the CDR was not exhibited, the IO was silent on whether it was switched off or received calls, a mobile can be planted, and the accused had no reason to carry it when she had her own phone and when no valuables were shown to have been taken. Without the complete CDR and tower location, its incriminatory value was seriously dented.

DNA and forensic evidence: The Court noted that, except for one stained material, other bloodstains had disintegrated too much to generate a DNA profile, and recorded its puzzlement at this. It noted that the scene was discovered on 07.09.2011, the FSL team collected samples on 10.09.2011, the accused’s blood sample was taken on 11.09.2011, and the articles were dispatched to the laboratory after her blood was collected.

The control sample from the cabinet was not sent for examination, and the scientific expert was not called for cross-examination. Since there was little effort by the defence to show tampering, the Court said that, though it had questions, it had no option but to accept the FSL report as it stood.

It held, however, that presence of the accused’s blood in the room indicated only that she was there at some point. The prosecution itself said she visited regularly, a past injury could explain it, and her blood was not found on the clothes of the deceased or on any material used to strangulate them. The circumstance was therefore not conclusive even if proved.

Motive: The Court observed that absence of motive is not fatal in itself, but becomes an important reason to give the benefit of doubt where other circumstances are not conclusive. No evidence of any bequest to D-2 was produced, and since the accused’s father had left five daughters from his first marriage, the accused alone would not benefit from D-2’s death. The Court found no strong motive.

The chain of circumstances: Summarising its analysis, the Court held that neither were the incriminating circumstances proved beyond reasonable doubt, nor did they constitute a chain so complete as to exclude every hypothesis consistent with the accused’s innocence. It also observed that suppression of D-1’s CDR and tower location created an impression that the prosecution was suppressing vital information.

Final Decision

The Court held that the prosecution had failed to bring home the charge against the accused and found no reason to interfere with the High Court’s decision. The appeal was dismissed, and pending applications, if any, were disposed of.

Significance

The judgment is a reminder, grounded in the facts of this case, that how witnesses come to be part of an investigation can bear directly on how much weight a court gives to their evidence. The Court did not suggest that recording the statement of a witness is suspect in itself; it expressly recognised that an IO may bona fide follow clues from one statement to another. Its concern was with cases where there is no palpable reason for the IO to approach a witness, the witness has no reason to approach the police, and the record is silent on what prompted the statement.

In such circumstances, the Court held, lack of explanation can dent a witness’s credibility and raise a suspicion that the witness was set up. Coupled with its observations on the failure to collect and exhibit CDR and tower-location data, the decision underscores the Court’s emphasis on a transparent, explainable and complete investigation as the foundation for a conviction based on circumstantial evidence.

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