Evidence Not So Dependable As To Send Someone To Gallows: SC Reprimands Shoddy Investigation, Acquits Rape Accused
The Supreme Court while setting aside an order of conviction with a death sentence by the Sessions Court, affirmed by the Bombay High Court, acquitted the appellant (also the accused) as the Prosecution failed to prove the guilt beyond a reasonable doubt.
The appellant was accused of rape and murder of a 6-year-old girl, who sustained injuries on both her private parts. It was further alleged that in an attempt to destroy the evidence the accused had then thrown her into a ‘nala’ (drain). The Sessions Court had convicted the appellant under Sections 302, 376, 377, and 201 IPC, sentencing him to death and life imprisonment and other punishments.
The Court noted that the prosecution was entirely based on circumstantial evidence, which further requires the chain to be so complete that there is no escape from the conclusion. “…no reason stands given for having decided that there was no need to comply with the provisions of Section 53A, Cr.P.C.; there is unexplained delay in sending the samples collected for analysis; a 40 premises already searched was searched again, the reason for which is not borne from record; lock panchnama is not prepared; 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; alleged disclosure statement of the appellant was never read over and explained to the appellant in his vernacular language; the appellant was not residing alone at the place alleged to be his residence; and what was the basis of appellant being a suspect at the first instance, remains a mystery; persons who may have shed light on essential aspects- Ganesh Bheema and Munna Saroj went unexamined etc., such multitudinous lapses have compromised the quest to punish the doer of such a barbaric act in absolute peril”, a bench of Justice B.R. Gavai, Justice Vikram Nath and Justice Sanjay Karol observed in the judgment while reprimanding the investigation process in the case.
In the matter, upon perusing the investigation and the documents annexed, the Court also noted that the case was not based on ocular evidence but on the confessional statement of the appellant, leading to the recovery of incriminating articles and through scientific analysis establishing the guilt of the accused.
The Court heavily relied on the judgment on the locus classicus, Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 which had highlighted the well-settled law on circumstantial evidence in Indrajit Das v. State of Tripura 2023 SCC OnLine SC 201, reiterating the principle that “the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence”.
The Court, therefore, had to broadly adjudicate upon three questions:
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?
While agreeing to the first question the bench was of the opinion that as it was held in Syed Qasim Razvi v. State of Hyderabad 1953 SCR 589 21 when there is a lack of understanding of the language of the Court, it causes prejudice to the appellant, squarely applies to the present case also.
On the second question, the bench raised certain concerns over the dates when the blood samples were taken, and when they were sent to the laboratory. As per the guidelines under the Maharashtra Police Manual, on the integrity of scientific evidence, the samples have to be sent to the laboratory immediately.
The bench noted that as per the records, one set of samples taken on June 14, 2010, were sent for chemical analysis on June 16, 2010 and the second sample taken, a month later on July 20, 2010 was sent the very same day. The bench on that said, as to why there existed these differing degrees of promptitude in respect of similar, if not the samenatured scientific evidence, is unexplained.
The bench observed, “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?”… Indisputably, these “without any delay” and “chain of custody” aspects which are indispensable to the vitality of such evidence, were not complied with. In such a situation, this court cannot hold the DNA Report Ext.85 to be so dependable as to send someone to the gallows on this basis”.
The bench in the matter also noted that neither the witness nor anyone else has deposed the fact of medical examination of the appellant, as is stipulated under Section 53A of the Code of Criminal Procedure (hereafter, ‘Cr.P.C.’). Also, was of the opinion that who took the samples of the body parts of the appellant, if at all, is a mystery.
While answering to the third, the bench further observed,
“70. It is true that the unfortunate incident did take place, and the prosecutrix sustained multiple injuries on her body and surely must have suffered great pain, agony, and trauma. At the tender age of 6, a life for which much was in store in the future was terrifyingly destroyed and extinguished. The parents of the prosecutrix suffered an unfathomable loss; a wound for which there is no remedy.”
“71. Despite such painful realities being part of this case, we cannot hold within law, the prosecution to have undergone all necessary lengths and efforts to take the steps necessary for driving home the guilt of the appellant and that of none else in the crime.”
“72. There are, in fact, yawning gaps in the chain of circumstances rendering it far from being established- pointing to the guilt of the appellant.”
The Court thus while allowing the appeals set aside the order of conviction.
Cause Title: Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra