'Numerous Lapses In Investigation' : Supreme Court Frees Man Awarded Death Penalty In Case For Rape & Murder Of 6 Year Old Girl

The Supreme Court recently set aside the death sentence and life imprisonment imposed on a convict under Section 302 and 376 of IPC for allegedly raping and killing a six year old minor girl, on the ground that there were yawning gaps in the chain of circumstances establishing to the guilt of the accused and there were several irregularities and illegalities on the part of the agencies examining the case.

The bench comprising Justice B. R. Gavai, Justice Vikram Nath and Justice Sanjay Karol observed:

“The charges mentioned above, although serious and grievous in nature, cannot be said to have been met against the present appellant. The factum of the commission of the crime against the six-year-old innocent child is not in dispute and cannot be deprecated enough even in the most severe terms. However, as the above discussion has laid out clearly, the circumstances forming the chain of commission of this crime cannot and do not point conclusively to the appellant in a manner that he may be punished for the same much less, with the sentence of being put to death.”

Factual Matrix

As per the FIR dated June 12, 2010, the appellant was charged for having committed an offence punishable under Section 376 (Punishment for rape), Section 377 (Unnatural offences), Section 302 (Punishment for murder) and Section 201 (Causing disappearance of evidence of offence, or giving false information to screen offender) of IPC for allegedly sexually assaulting a minor girl (aged six years) and putting her to death. It was further alleged that in an attempt to destroy the evidence, the appellant threw the deceased into a ‘nala’ (drain) and concealed material evidence of crime.

The Trial Court vide judgement dated November 27, 2014 convicted the accused-appellant in connection with all the above mentioned offences and imposed capital punishment for the charge under Section 302 IPC and sentence of life imprisonment for the charge under Sections 376, 377 of IPC and imprisonment of 7 years under Section 201 of IPC.

Such findings of fact and conviction of the Trial Court, including that of the death sentence imposed were affirmed by the High Court of Bombay vide common judgment dated October 13-14, 2015.

Hence, the appellant filed the present appeal before the Supreme Court.

Court’s Observation

The Apex Court framed following issues for consideration:

1. Whether non-recording of a disclosure statement of the appellant in the language in which it is made and recording of the same in a language totally unknown to the appellant, contents whereof are also not read over and explained to him, can be said to have caused any prejudice to the cause of justice?
2. Whether DNA evidence can form the solitary basis in determining the guilt of the appellant?
3. Whether the circumstances as identified and relied on by the prosecution indeed point to the guilt only of the appellant, closing out any and all other possibilities of any other person?

The Court observed that the prosecution relied upon the following circumstances to establish the guilt of the appellant:

1. The appellant was residing in the same chawl as that of the prosecutrix.
2. Appellant was found near the scene of the crime.
3. The appellant made disclosure statements dated June 16, 2010 and June 17, 2010 which led to the recovery of incriminating articles from the house of the appellant and another place where he had allegedly hidden the clothes belonging to him and the prosecutrix.
4. The DNA reports prepared on scientific analysis by an expert, establishing the blood of the prosecutrix on banian of the appellant and his semen on the clothes of prosecutrix and her vaginal smear slide.

The Court observed that PW1 (father of the prosecutrix) and PW2 (mother of the prosecutrix) stated that the appellant resided in the very same chawl as they, although they did not identify his house. It was further pointed by the Court that there is no other evidence of appellant residing in the same chawl as that of the prosecutrix.

The Court noted:

“The appellant was not found at the place where the alleged crime took place or the place from where the body was recovered. The prosecution has not been able to establish the distance between the two places - that of the crime and the place where the appellant was spotted in the morning hours. There is no spot map or any ocular evidence to this effect. As noted above, what led these witnesses to discover the appellant of having committed the crime has gone unstated.”

It was further highlighted by the Court that none of the witnesses have deposed that it was at the instance of the appellant that the prosecutrix left the house, nor has anyone deposed to the effect of having seen the appellant and the prosecutrix together at any point in time.

The Court observed that neither investigating officer (PW13) nor anyone else has deposed the fact of medical examination of the appellant, as is stipulated under Section 53A CrPC.

“Further, whether his communication for medical examination of the appellant was ever followed up at all is not known. So also, its resultant consequences. Who took the samples of the body parts of the appellant, if at all, is a mystery. The record does not disclose such fact,” the Court said.

It was further observed by the Court that the house from where the articles were recovered on June 17, 2010 was neither owned nor in the exclusive possession of the appellant, instead, as is admitted by the Investigating Officer, it belonged to a third party who was never examined in the case.

It was pointed by the Court that appellant did not know Marathi language (in which his disclosure statements were recorded) and the Investigating Officer did not ever read over or explained contents thereof to the appellant in his vernacular language.

The Court remarked:

“……but perusal of the said disclosure statements (Ext.47 & Ext.50) reveals the same to have been recorded in Marathi and the Investigating Officer not having ever read over or explained contents thereof to the appellant in his vernacular language. As a result thereof, certainty is absent as to the correctness of the statement as made and the statement, as recorded by the police.”

The Court further noted that to establish clinching evidence against the appellant, the prosecution seeks reliance on communication dated June 16, 2010 whereby PW 13 (Investigating Officer) sent certain articles for analysis to the Director, Forensic Laboratory, Maharashtra.

However, the Court observed that there was nothing on record to establish as to who took such samples, on what date, on how many occasions and why were they not sent all at once.

It was further observed by the Court that the delay in sending the samples was unexplained and therefore, the possibility of contamination and the concomitant prospect of diminishment in value cannot be reasonably ruled out.

“We notice that none of the police officials have testified to the formalities of keeping the samples safe and secure being complied with,” the Court remarked.

The Court noted:

“Here, a child of the tender age of six was assaulted brutally and killed. The appellant was arrested on suspicion of having committed the crime. The police proceeded in accordance therewith and were supposed to have made discoveries as per the statements made by the appellant in custody, then in what manner can it be said that, at the time when such a positive call was required to be made by the authorities, reasonable grounds did not exist for the compliance with Section 53A to be a must? This, in the view of this Court is a glaring lapse in the investigation of this crime, for a six year- old child was sexually assaulted on both of the private parts of her body. Medical examination of the appellant would have resulted into ascertainment of such assault.”

The Court further observed that the Trial Court and High Court relied upon the testimony of the doctor (PW4) who conducted the post-mortem and, “the clinching medical evidence” and “clinching DNA report”.

“It is on the basis of the said medical evidence that the courts, without recording any findings with regard to the circumstances being unrefuted, convicted the appellant despite there being contradictions, material in nature, belying the prosecution case and the veracity of the statement of witnesses, so also impeaching their credibility,” the Court said.

It was further observed by the Court that the Trial Court and the High Court put emphasis on the nature of the alleged crime.

The Court stated:

“Before parting with the matter, we must take note of the manner in which the investigation into this dastardly crime was undertaken. Numerous lapses blot the entire map. We have already pointed out multiple instances which have led to the chain of circumstances remaining broken, the larger picture emerging therefrom being that the person, whomsoever they may have been, remains unpunished to this day.”

The Court found the following lapses in the prosecution case:

1. the reasons why the investigation officers were changed time and again from PW 6 to PW 12 and then to PW 13, is surprising and unexplained.
2. no reason stands given for having decided that there was no need to comply with the provisions of Section 53A of CrPC.
3. there is unexplained delay in sending the samples collected for analysis.
4. a premises already searched was searched again, the reason for which is not borne from record.
5. lock panchnama is not prepared.
6. no samples of blood and semen of the appellant can be said to have been drawn by any medical or para medical staff, allegedly an additional sample is taken from the appellant more than a month after the arrest.
7. alleged disclosure statement of the appellant was never read over and explained to the appellant in his vernacular language.
8. the appellant was not residing alone at the place alleged to be his residence.
9. what was the basis of appellant being a suspect at the first instance, remains a mystery.
10. persons who may have shed light on essential aspects went unexamined.

The Court stated that such multitudinous lapses have compromised the quest to punish the doer of such a barbaric act in absolute peril.

Thus, the Court set aside the conviction and sentences of death penalty and life imprisonment imposed on the appellant and set him at liberty. Sr Adv BH Marlapalle, assisted by Project 39A of National Law University Delhi, appeared for the appellant.

Also Read - Recent Acquittals From Supreme Court Reflect Deep Malaise In Our Criminal Trial System

Case Title: Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra

Citation : 2023 LiveLaw (SC) 461

Click Here to Read/Download Judgment