In Criminal Appeal 1636-1637 of 2023 - SC- Supreme Court acquits man sentenced to death for sexual assault, murder of 6-year-old girl due to fallibilities and lapses by Investigating Agency
Justice B.R. Gavai, Justice Vikram Nath and Justice Sanjay Karol [19-05-2023]

Read Order: Prakash Nishad @ Kewat Zinak Nishad v State of Maharashtra

Simran Singh

New Delhi, May 20, 2023: In a criminal appeal, the Supreme Court has set aside the impugned judgement convicting the appellant under Sections 376, 377, 302 and 201 of the Indian Penal Code, 1860  which had sentenced him to death for the murder of a six-year-old, after committing which he had thrown her body in a drain in an attempt to destroy evidence,  and life sentence for sexual assault on the child.

“The charges mentioned above, although serious and grievous in nature, could not 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, the circumstances forming the chain of commission of this crime could not 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.”

In the matter at hand, a child of the tender age of six was assaulted brutally and killed. The appellant was arrested on suspicion of having committed the crime. Pursuant to the First Information Report dated 12-06-2010 registered in Thane, Mumbai, the appellant was charged for having committed an offence punishable under Sections 376, 377, 302 and 201 of the Indian Penal Code, 1860 .  The Trial Court vide judgment dated 27-11-2014, convicted the accused in connection with all the offences and imposed capital punishment for the charge under Section 302 of IPC and sentence of imprisonment for other offences. Such findings of fact and conviction, including that of the death sentence imposed were affirmed by the Bombay High Court, hence the present appeal.

The Top Court questioned the fact as to why was Section 53A  of Code of Criminal Procedure, 1973 was not complied with? In view of the Court, this was a glaring lapse in the investigation of the crime, for a six- year-old child who was sexually assaulted, on both of the private parts of her body and the timely medical examination of the appellant would have resulted into ascertainment of such assault.

The Court observed that there was no clarity of who took the samples of the appellant and the record revealed that one set of sample taken on 14-06-2010 was sent for chemical analysis on 16-06-2010 and the second sample taken, a month later on 20-07-2010 was sent the very same day. The Court questioned why these differing degrees of promptitude in respect of similar, if not the same- natured scientific evidence existed which remained unexplained. The delay in sending the samples was unexplained and therefore, the possibility of contamination and the concomitant prospect of diminishment in value could not be ruled out.

Further, the Bench stated that the chain of custody should have been maintained, which implied that right from the time of taking of the sample, to the time its role in the investigation and processes subsequent, was complete, each person handling said piece of evidence must duly be acknowledged in the documentation, so as to ensure that the integrity was un-compromised. It was recommended that a document be duly maintained cataloguing the custody.

The Bench stated that ‘without any delay’ and ‘chain of custody’ aspects which were indispensable to the vitality of such evidence, were not complied with thus, the Court could not hold the DNA Report to be dependable so as to send someone to the gallows on this basis.

“Even though the DNA evidence by way of a report was present, its reliability was not infallible, especially not so in light of the fact that the un compromised nature of such evidence could not be established was absent almost in its entirety.”

The Bench was of the view that the Courts below unfortunately did not go into all the necessary aspects and presumptuously assumed the guilt of the appellant and held him to have committed the crime.

The Bench perused the material on record and stated that the appellant did not know how to read and write in Marathi which highlighted the importance of the appellant being able to understand the case of the prosecution against him. Inability to do so, by virtue of a language barrier causes prejudice to the case of the appellant.

The Bench noted that it was on the basis of the post-mortem and, ‘the clinching medical evidence’ and ‘clinching DNA report 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. Further, what weighed with the Courts below was more so evident from the findings returned by the High Court, i.e., nature of the alleged crime being indeed one of the heart-breaking, horrific and most depraved kind, prompting the confirmation of the death sentence awarded by the Trial Court, considering the case to be the rarest of rare.

“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.”

The Court was of the view that despite such painful relies being  part of this case, it could not 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.

“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 Bench was of the view that there were several irregularities and illegalities on the part of the agencies examining the case with numerous lapses blotting the entire map with the larger picture emerging therefrom being that the person, whomsoever they may have been, remains unpunished to this day.

The Court stated that both the crimes committed against the innocent six-year-old child, were unquestionably, malum in se i.e., evil and wrong on their own, without the prohibition of law making it so. This fact, coupled with the duty upon the investigating authorities not only to protect the citizens of the country, but also ensure fair and proper investigations into crimes affecting the society, as in the present case, casts upon such authorities, in the considered view of this Court, not only legal, but also a moral duty to take all possible steps within the letter of the law to bring the doers of such acts to the book.

The Bench was surprised to note as to why the investigation officers were changed time and again which remained unexplained. Further, there was no reason for having to decide why there was no need to comply with the provision of Section 53A of CrPC; there was unexplained delay in sending the samples collected for analysis; a premise already searched was searched again, the reason for which was not borne from record; lock panchnama was not prepared; no samples of blood and semen of the appellant could be said to have been drawn by any medical or para medical staff; allegedly an additional sample was 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, such multitudinous lapses have compromised the quest to punish the doer of such a barbaric act in absolute peril.

The Court referred to the case of Maghavendra Pratap Singh @Pankaj Singh v. State of Chattisgarh and emphasised the role and responsibilities of the investigating authorities by referring to various judgments of this Court. Such principles, which were essential to successful investigations, were not adhered to. “Needless to state, such responsibilities would be all the more heightened in cases of crimes involving severe punishments such as imprisonment for life or the sentence of death. Considering the nature of the case, the police ought to have, even more than usual, taken steps, precautions, and decisions to safeguard the fact- finding and investigation exercise.”

In the view thereof, it was held that the charges levied on the appellant stand not proved and the appeal was allowed. Accordingly the impugned judgement, convicting the appellant under Sections 302, 376, 377 and 201 IPC and sentencing him to death and life imprisonment was quashed and set aside.