Can the last seen circumstance be acted upon where the witnesses remained silent before the police officers who reached the spot?

No. Their conduct in not disclosing to the police that they had seen the appellant taking away the child-victim completely demolishes the theory of last seen. Where the appellant was not known to those witnesses from before, the absence of any test identification parade and of dock identification leaves his identity unestablished.

Code of Criminal Procedure, 1973 — ss.207, 293 — Indian Evidence Act, 1872 — ss.24, 25, 26 — Indian Penal Code, 1860 — ss.302, 376A — Protection of Children from Sexual Offences Act, 2012 — ss.5, 6 — Just and fair manner — Legal aid counsel — DNA profiling — Chain of custody — Last seen — Code of Criminal Procedure, 1973 — s.207 — Legal aid counsel — Opportunity to defend before charge — Held: Framing charges on the day the relied upon documents are supplied denies the accused a reasonable opportunity to defend himself. Where the amicus curiae is compelled to cross-examine on the day of his appointment, the trial is not conducted in a just and fair manner. (¶15, 16) Code of Criminal Procedure, 1973 — s.293 — DNA profiling — Expert must be examined — Held further: A DNA profiling report is not admissible ipso facto by virtue of Section 293; the prosecution must examine the expert and prove that the techniques were reliably applied. Non-examination of that expert is fatal and the report cannot be admitted in evidence. (¶39, 40) Code of Criminal Procedure, 1973 — Forensic samples — Chain of custody — Link evidence — Held further: The sanctity and chain of custody of the samples, from their collection till they reach the FSL, must be proved by link evidence. Where they were not sealed at the inception and no witness proves their self-same condition, the reports are eschewed from consideration. (¶54, 55) Indian Penal Code, 1860 — s.302 — Last seen — Silence of the witnesses; no test identification parade — Held further: Where the witnesses of last seen remained silent before the police officers who reached the spot and no test identification parade was held, the last seen theory is demolished. With the DNA/FSL reports eschewed, no evidence remains to connect the appellant with the crime; conviction and death sentence set aside, appeals allowed. (¶35, 36, 56)

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