The Bombay High Court has set aside a conviction under Sections 363, 302, and 201 of the IPC in a POCSO case, holding that the prosecution failed to establish guilt beyond reasonable doubt due to inadmissible confessions and unauthenticated electronic evidence. The judgment underscores the non-negotiable procedural requirements for confessions under Section 164 CrPC and the mandatory certification of electronic records under Section 65-B of the Evidence Act.
Background & Facts
The Dispute
The case arose from the disappearance of a 1-year-10-month-old girl, M, on 20.08.2013, from her home in GL Colony, Manpada, Thane. The child was last seen playing near her house during a neighbour’s birthday party. Her parents, PW.1 and PW.2, filed a complaint on the same day, leading to the registration of FIR No. 231/2013 under Section 363 IPC against A-1 Shankar Jagdev Singh and A-2 Jahid-Ur-Rehman Shaikh. The investigation revealed that the child was allegedly handed over by A-1 to A-2, who abandoned her at Platform No. 10, Thane Railway Station.
Key Facts
- The victim was born on 08.03.2010 at Dr. Balabai Nanavati Hospital, Pune
- CCTV footage from Thane Railway Station’s Platform No. 10 showed an unknown man taking custody of the child after she was abandoned by A-2
- On 23.08.2013, A-1 and A-2 were arrested
- On 28.08.2013, the police filed a charge-sheet against A-1, A-2, and two unidentified persons under Section 363A IPC
- On 09.01.2014, Satish Shetty was arrested but later released under Section 169 CrPC after investigation cleared him
- On 18.07.2014, the Bombay High Court, in Writ Petition No. 2510 of 2014, directed the Additional Commissioner of Police to investigate the case due to lack of progress
- On 26.07.2014, the Appellant, Shantilal Dashrath Gaikwad, a homeless scrap collector residing at Thane Railway Station, was arrested
- On 29.07.2014, the Appellant disclosed to police that he had found the child abandoned at the station and handed her over to A-4, a resident of Panvel
- On 01.08.2014, a girl was recovered from A-4’s residence and handed over to PW.1 and PW.2
- DNA test on 26.08.2014 confirmed the recovered girl was the biological daughter of A-4 and his wife, Hansa
- On 21.07.2014, the Appellant gave a confession (Exh.190) before Judicial Magistrate PW.11, which bore no signature
- On 05.09.2014, the Appellant was shown to be in custody under C.R. No. 280/2013 (theft charges) and made a second disclosure
- On 21.09.2014 and 25.09.2014, the Appellant gave a second confession (Exh.187) before Judicial Magistrate PW.10, retracting his earlier statement and confessing to kidnapping, raping, and murdering the child
- On 31.10.2014, the Appellant was charge-sheeted under Sections 363, 376(2)(i), 302, and 201 IPC and Sections 4, 5(1)(m), 6, 9(1)(m), and 10 of the POCSO Act
- A-1 and A-2 were acquitted for lack of evidence; A-2 remained absconding
Procedural History
- 20.08.2013: Victim goes missing; FIR registered under Section 363 IPC
- 23.08.2013: Arrest of A-1 and A-2
- 24.08.2013: RPF provides CCTV footage to police
- 28.08.2013: Charge-sheet filed against A-1, A-2, and two unknown persons
- 09.01.2014: Arrest of Satish Shetty; later released under Section 169 CrPC
- 18.07.2014: Bombay HC directs Additional Commissioner of Police to investigate
- 26.07.2014: Arrest of Appellant
- 29.07.2014: Appellant gives first disclosure to police
- 01.08.2014: Recovery of girl from A-4’s residence; custody handed to PW.1 and PW.2
- 26.08.2014: DNA report confirms girl is A-4’s daughter; custody returned to A-4
- 21.07.2014: First confession (Exh.190) recorded by PW.11 - no signature
- 05.09.2014: Appellant in custody under C.R. No. 280/2013; gives disclosure statement (Exh.71)
- 21.09.2014 & 25.09.2014: Second confession (Exh.187) recorded by PW.10
- 31.10.2014: Final charge-sheet filed against Appellant
- 01.12.2015: Charges framed by Special Judge (POCSO), Thane
- 09.07.2024: Trial Court convicts Appellant under Sections 363, 302, 201 IPC; sentences to life imprisonment
- 25.03.2026: Bombay High Court acquits Appellant
The Parties' Positions
For the Appellant: Argued that the confessions were involuntary and legally invalid due to non-compliance with Section 164 CrPC (no signature), and that the photographs (Exhs.23 - 25) purporting to show the Appellant and victim were inadmissible under Section 65-B of the Evidence Act. Contended that the prosecution failed to prove the chain of circumstances beyond reasonable doubt and that the entire case was a fabrication to cover investigative failures.
For the Respondent-State: Argued that the confessions were voluntary and properly recorded, and that the identification of the Appellant by PW.3, PW.4, PW.5, and PW.9, along with the disclosure statement, corroborated the prosecution’s case. Relied on Ram Gulam Chaudhary and Manoharan to support conviction even in absence of corpus delicti.
Relief Sought
The Appellant sought quashing of the conviction and sentence under Sections 363, 302, and 201 IPC, and his immediate release from custody. He also sought return of any fine paid.
The Legal Issue
Can a conviction under Sections 363, 302, and 201 IPC be sustained when the sole confessional evidence is rendered inadmissible due to non-compliance with Section 164 CrPC (lack of signature), and the key identification evidence is based on electronic photographs that lack certification under Section 65-B of the Evidence Act?
Arguments Presented
For the Appellant
The Appellant’s counsel, Amit Gharte, relied on Sharad Birdhichand Sarda to argue that circumstantial evidence must form an unbroken chain excluding every hypothesis except guilt. He contended that the first confession (Exh.190) was invalid under Dhanajaya Reddy and Kehar Singh because it lacked the Appellant’s signature - a mandatory requirement under Section 164(4) CrPC. He further argued that the photographs (Exhs.23 - 25) were electronic records whose admissibility required a Section 65-B certificate, which was never produced. Citing Sundar @ Sundarrajan, he asserted that objections to the mode of proof of electronic evidence cannot be raised for the first time on appeal only if the trial was completed after 18.09.2014 - here, the trial concluded in 2024, making the objection valid. He emphasized that the prosecution failed to prove the identity of the victim or the Appellant beyond doubt, and that the entire case was built on a flawed investigation that sought to cover up the misidentification of A-4’s daughter as the victim.
For the Respondent-State
The State, through APP Vinod Chate, argued that the confessions were recorded by judicial magistrates who testified to their voluntariness and compliance with procedure. He relied on Manoharan to contend that even a retracted confession can be relied upon if properly proved. He argued that the testimonies of PW.3, PW.4, PW.5, and PW.9 corroborated the Appellant’s last seen with the victim, and that the disclosure statement leading to the tree and river was sufficient to establish guilt. He maintained that the absence of a Section 65-B certificate was a procedural irregularity that could be cured under Sundar @ Sundarrajan, as the objection was raised belatedly.
The Court's Analysis
The Court undertook a meticulous review of the evidence and found the prosecution’s case fundamentally flawed. It held that the first confession (Exh.190) was inadmissible under Section 164 CrPC because it bore no signature of the Appellant. Citing Dhanajaya Reddy v. State of Karnataka and Kehar Singh v. State (Delhi Admn.), the Court emphasized that the requirement of signature under Section 164(4) is mandatory and not merely procedural. The omission cannot be cured under Section 463 CrPC, especially when the confession’s very authenticity is contested. The Court observed: > "Mere failure to get the signature of the person making the confession may not be very material if the making of such statement is not disputed by the accused but in cases where the making of the statement itself is in controversy, the omission to get the signature is fatal."
The Court further held that the photographs (Exhs.23 - 25), which formed the basis of identification by PW.1, PW.3, PW.4, PW.5, and PW.9, were electronic records under Section 65-A and 65-B of the Evidence Act. The prosecution failed to produce the original CCTV footage, the person who extracted the images, or the mandatory certificate under Section 65-B(4). Citing Anvar P.V. v. P.K. Basheer and Sundar @ Sundarrajan v. State, the Court clarified that the absence of a Section 65-B certificate renders such evidence inadmissible, and that objections to the mode of proof of electronic evidence, if not raised at trial, may still be entertained if the evidence is inherently inadmissible - which this was. The Court noted: > "An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied."
The Court also found the testimonies of PW.3, PW.4, PW.5, and PW.9 unreliable. PW.3’s presence on the platform at the relevant time was uncorroborated by duty logs. PW.4’s claim of friendship with the Appellant from jail was unsupported. PW.5 and PW.9’s identification was based solely on the inadmissible photographs. The Court observed that the entire narrative of the Appellant’s guilt emerged only after the DNA test exposed the prosecution’s error in identifying A-4’s daughter as the victim - suggesting a manufactured case to salvage investigative failure.
The Court further noted that the Appellant’s second confession (Exh.187) was recorded after he was illegally detained under a separate theft case (C.R. No. 280/2013), raising serious questions about coercion and procedural manipulation. The delay between the disclosure statement (05.09.2014) and the second confession (21.09.2014), coupled with the fact that only Kasarwadavli police produced the Appellant before magistrates, indicated a coordinated effort to fabricate evidence.
The Verdict
The Appellant succeeded. The Bombay High Court quashed and set aside the conviction and sentence dated 09.07.2024 passed by the Special Judge (POCSO), Thane. The Appellant, Shantilal Dashrath Gaikwad, is acquitted of all charges under Sections 363, 302, and 201 of the IPC. He shall be forthwith released from custody if not detained in any other case. Any fine paid by him shall be refunded. The Interim Applications are disposed of.
What This Means For Similar Cases
Confessions Must Comply Strictly with Section 164 CrPC
- Practitioners must insist on strict compliance with Section 164 CrPC - absence of signature renders the confession inadmissible, even if the Magistrate testifies to its voluntariness
- Courts will not permit reliance on confessions where the accused’s signature is missing, particularly in serious offences like murder or POCSO
- Defence counsel should raise this objection at the earliest opportunity, even if the confession appears corroborated
Electronic Evidence Requires Section 65-B Certification
- Photographs, videos, or printouts derived from CCTV, mobile phones, or servers are electronic records under Section 65-A
- No such evidence is admissible without a Section 65-B certificate, regardless of whether the objection is raised at trial or appeal
- Prosecution must produce the custodian of the electronic record and the certificate at the time of tendering the evidence
- Failure to do so invalidates the entire chain of identification and circumstantial evidence
Suspicion Cannot Replace Proof in Absence of Corpus Delicti
- In cases where the body is not recovered, the prosecution must establish the chain of circumstances with absolute certainty
- Last seen theory alone is insufficient without corroborative evidence that excludes all other possibilities
- Courts will not tolerate investigative shortcuts, especially when the case hinges on misidentification or fabricated confessions
- Any attempt to use a suspect to cover up investigative failure will be viewed as a violation of fair trial rights
