‘Yawning gaps in the chain of circumstances’ save man on eight-year death row from the gallows

A division Bench of the Supreme Court set free the convicted appellant, Prakash, due to inconclusive evidence of the crime. Prakash had been on death row for eight years on charges of murder and rape of a six-year-old girl. The court remarked that the charges, "although serious and grievous in nature, cannot be said to have been met against the present appellant." The court also lamented that the real perpetrator(s) of the heinous crime, "whosoever they may have been, remains unpunished to this day."

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ON May 19, the Supreme Court quashed all criminal charges, including that of murder, against an appellant who has been on trial for more than a decade and on death row for more than eight years.

A three-judge Bench of the court, comprising Justices B.R. Gavai, Vikram Nath and Sanjay Karol, in Prakash Nishad@ Kewat Zinak Nishad versus State of Maharashtra, reasoned that the circumstances forming the chain of commission of the crime did not conclusively point to the appellant, that he may be punished, much less with the sentence of being put to death.

Brief facts 

Prakash, the appellant, allegedly sexually assaulted a six-year-old girl and put her to death. In an attempt to destroy evidence, the allegation went, he threw her body into a drain and concealed material evidence of the crime.

He was charged with committing an offence punishable under Sections 376 (punishment for rape), 377 (unnatural offences), 302 (punishment for murder) and 201 (Causing disappearance of evidence of offence, or giving false information to screen offender) of the Indian Penal Code, pursuant to a first information report (FIR) dated June 12, 2010, registered in Bhayander police station, Thane. 

In 2014, the trial court convicted him concerning all the offences and imposed capital punishment for the charge under Section 302 and a sentence of imprisonment for other offences.

The findings of the trial court were affirmed by the High Court of Bombay in 2015. The conviction and sentence were challenged by Prakash before the Supreme Court. 

What were the issues before the court?

There were three issues before the Supreme Court, namely:

• Whether recording of the disclosure statement of the appellant, in a language unknown to him, which purportedly led to the recovery of incriminating material against him, caused prejudice and injustice?
• Whether DNA evidence can form the solitary basis for determining guilt?
• Whether the circumstances as identified and relied upon by the prosecution pointed to the guilt of the appellant, closing out any and all other possibilities of any other person being guilty of the crime.

What did the Supreme Court say?

The prosecution's case is based on circumstantial evidence as there were no witnesses to the commission of the alleged offence. 

The prosecution has relied on the following circumstances to establish the guilt of the appellant, namely:

• That the appellant was residing in the same chawl as the victim. 
• The appellant was found near the scene of the crime.
• The appellant made two disclosure statements, which led to the recovery of the incriminating articles from the house of the appellant and another place where he had hidden the clothes belonging to him and the victim.
• The DNA reports were prepared on scientific analysis by an expert, which established the blood of the victim on the vest of the appellant and his semen on the clothes of the victim and her vaginal smear slide.

On the first circumstance relied on by the prosecution, the court said that there was no evidence to suggest that the appellant lived in the same chawl. 

The investigation officer had alleged that the victim's father suspected that the appellant had committed a crime. On the basis of this purported suspicion, the appellant's house was searched.

However, the court pointed out the contradiction here. The victim's father, in his testimony, had stated that he did not suspect the appellant to have committed the crime.

On the basis of the purported statement by the victim's father that Prakash lived in a particular house in the chawl, the police broke into the locked house, in the presence of two witnesses. Incriminating articles were allegedly found inside the house. However, the Supreme Court pointed out that the prosecution only examined one witness of the two who were present at the time of the recovery. 

The court also noted that a major fact, who actually identified the house of the appellant, remains unestablished. 

Thus, it averred: "Living in the same chawl, cannot be, in the attending facts of no one having identified with certainty the exact house or room of the appellant, a circumstance pointed to the guilt of the appellant."

Further, in the second circumstance, the court rejected the theory of last seen as applicable in the present case. It based its argument on the ground that none of the witnesses deposed that the appellant was seen with the victim. 

On the third circumstance, a disclosure statement was obtained by one of the investigating officers from the appellant while in police custody. The disclosure statement was made in the presence of two witnesses, one of whom has not been examined by the prosecution.

The disclosure statement led to the recovery of the blood-stained nicker of the victim from the alleged house of the appellant. 

Another disclosure statement purportedly led to the recovery of additional clothes which the appellant had worn on the day of the incident. This disclosure statement was made in respect of some other house where the incriminating material was found.

All the incriminating evidence was sent for DNA testing along with the blood samples of the appellant. The DNA report revealed samples of semen of the appellant on a swab drawn from the private part of the victim.

The court found that none of the witnesses had deposed to the fact that the medical examination of the appellant was pursuant to Section 53A (examination of person accused of rape by medical practitioner) of the Code of Criminal Procedure, 1973. 

Further, the prosecution did not examine the person who resided with the appellant. Nor was the person, in whose house the incriminating material was found the second time, examined. 

On the first issue, the court found that the investigating officer recorded the disclosure statements in Marathi and did not read them over to the appellant in his vernacular language, which was Hindi. 

The court said: "There is nothing on record to show that it was not practicable to record evidence of the appellant as well as others, whose vernacular was not Marathi, but Hindi."

The court found: " Inability to do so, by virtue of a language barrier, causes prejudice to the case of the appellant."

The court relied on Syed Qasim Razvi versus State of Hyderabad (1953), and observed that the statutory safeguard has not been complied with, causing prejudice to the appellant. 

In Syed Qasim Razvi, the Supreme Court had observed: "If the accused in a particular case is not acquainted with the English language and if by reason of the absence of adequate arrangements to have the proceedings interpreted to him in the language he understands, he is prejudiced in his trial, obviously it might be a ground which may be raised on his behalf in an appeal against his conviction."

On the second issue, the court pointed out that there is nothing on record to establish who took the samples of the appellant sent the forensic analysis, on what date and on how many occasions and why they were not sent all at once. 

Three samples of the appellant were sent for testing on three different dates. 

Further, none of the police officials have testified that the formalities of keeping the sample safe and secure were complied with. There is only one document on record, indicating the appellant to have been medically examined. But even that does not reveal from which part of the body the sample was drawn.

The doctor who took the samples is not a witness. Thus, the statutory requirement of Section 53A of the IPC has not been complied with.

The court also said: "In the present case, the delay in sending the samples is unexplained and therefore, the possibility of contamination and the concomitant prospect of diminishment in value cannot be reasonably ruled out."

On the third issue, the Bench observed that the factum of the commission of the crime against the six-year-old is not in dispute and cannot be deprecated enough even in the most severe terms. However, it added: "The charges mentioned above, although serious and grievous in nature, cannot be said to have been met against the present appellant."

In this context, the court's judgment stated that there are "yawning gaps" in the chain of circumstances rendering it far from establishing the guilt of the appellant. 

The court also noted the manner in which the investigation into the dastardly crime was undertaken. It said: "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, whosoever they may have been, remains unpunished to this day."

It further said: "Both the crimes committed against the innocent six-year-old child, are unquestionably, malum in se, i.e., evil and wrong on their own, without the prohibition of law making it so."

It added: "This fact, coupled with the duty upon the investigating authorities not only to protect the citizens of the country but also to 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 a 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."

Full judgment can be read here.