Sheena case: Sifting through the sensational to analyse the case’s legal points

In the absence of eyewitnesses to Sheena Bora’s murder, the case hinges on circumstantial evidence. Amid the array of bewildering details tumbling out about the various dramatis personae, the main challenge before Mumbai police is to reconstruct an unbroken chain of circumstances ending with Sheena’s murder and disposal of her body. The basis on which the murder case was booked and arrests were made after a lapse of three years adds to its legal complexity.
Having first arrested Indrani Mukerjea on August 25, the police need to file their chargesheet against her within 90 days for her to remain under detention. The narrative the police will stitch together in the chargesheet, complete with the alleged motive behind the crime, will be the basis of the trial. None of the issues thrown up so far in the investigation is likely to come in the way of making a prima facie case against Indrani and the other two accused, Sanjeev Khanna and Shyamvar Rai.
If the DNA from the skeletal remains does not match that of any of Sheena’s immediate family members, it will not be a fatal blow to the murder charge. There are plenty of Supreme Court rulings clarifying that a murder charge is sustainable even in cases where the police were unable to recover the body. In case of a DNA mismatch, Indrani’s defence can cite it in their favour as Sheena’s physical remains were reportedly recovered at Rai’s instance. But the court may also take into account the probability of deterioration of the DNA evidence due to the burning and burial of the body parts. If the DNA tests confirm the remains are of Sheena, there is little the defence can do to counter such formidable scientific evidence.
The recovery of Sheena’s passport from her boyfriend leads to an adverse inference against Indrani, who had claimed “special knowledge” of Sheena having gone to the US. Section 106 of the Evidence Act says: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” Since Indrani claims Sheena left on a forged passport rather than her genuine one, she will have to explain why her daughter would have done such a curious thing.
Indrani also bears the onus of explaining her failure to report Sheena’s disappearance to the police and her reported attempts to fob off inquiries about Sheena’s whereabouts from Rahul Mukerjea or Mikhail Bora. This is because of the “last seen” evidence weighing against her: Indrani was last seen with Sheena by Rahul who says that, following a call from her, he left Sheena with her.
The call data records (CDR) of the persons involved in the case will constitute vital evidence to make up for the absence of eyewitnesses. The CDR can help establish not only the calls exchanged by the accused but also prove through the data on cell tower locations that they had travelled together in the run-up to the murder. The CDR of Sheena may also come in handy to reconstruct the course of her murder.
The police so far do not seem to have established the motive behind Sheena’s murder. If this gap in the narrative is not filled plausibly by the time the chargesheet is filed, it will not necessarily lead to acquittals. For, in criminal law, it is more important to establish criminal intent (mens rea) of the accused to commit the crime, rather than figuring out the motive behind the crime. There is a good chance the probe into bank accounts and financial transactions may shed light on the motive.
The police have the option of turning one of the accused, driver Shyamvar Rai, into an approver. It may help strengthen the police’s case in the absence of eyewitness testimony. If they exercise this option, the police will first have to record his confession before a magistrate under Section 164 CrPC. And then will have to apply to a magistrate to tender a pardon to him under Section 306 CrPC.