Supreme Court sets aside HC's decision upholding death penalty in rape-murder of 6-yr-old child

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Supreme Court while setting aside the death penalty also noted that statutory safeguards in reference to language have not been complied with, causing prejudice to the appellant-accused before it.

The Supreme Court has set aside a Bombay High Court's judgement which upheld the death penalty awarded to a man for killing a six-year-old girl child after rape and unnatural sex, finding "multitudinous lapses" in the prosecution case and "yawning gaps" in the chain of circumstances pointing to the guilt of the accused. 

A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol said the charges, although serious and grievous in nature, cannot be said to have been met against the appellant-accused, as the court set Prakash Nishad alias Kevat Zinak Nishad free, allowing his appeal against the 2015 High Court's judgement, which had upheld the trial court's order sentencing him to the capital punishment.

"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 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," the bench said.

The appellant was arrested after an FIR was lodged on June 12, 2010 with Bhayander police station in Thane, Maharashtra on charges that he killed the child, living in a same 'chawl' after sexually assaulting her and threw her body in a drain.

Prosecution relied upon the appellant's disclosure statement, recovery of blood and semen-stained clothes and scientific analysis including DNA examinations, as none had witnessed the crime and the case was based on circumstantial evidence.

However, after going through the materials on record, the apex court said what was the basis of appellant being a suspect at the first instance, remained a mystery as persons who may have shed light on this essential aspects went unexamined.

"Such multitudinous lapses have compromised the quest to punish the doer of such a barbaric act in absolute peril," it said.

Writing the judgement on part of the bench, Justice Karol also pointed out the reasons why the investigation officers (total three) were changed time and again "is surprising and unexplained". 

The court also noted no reasons were given for the need not to comply with the requirement of Section 53 A (examination of accused by medical practitioner) of the Criminal Procedure Code.

Supreme Court has further cited the Maharashtra police manuals and the Union Ministry of Home Affairs' guidelines for collection, storage and transportation of DNA samples, its chain of custody and expedition in submitting in the laboratory.

"Even though, the DNA evidence by way of a report was present, its reliability is not infallible," it said.

Court also found unexplained delay in sending the samples collected for analysis; a premises (hutment of accused) 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.

"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 bench said.

The 3-judge bench also pointed out there is no clarity of who took the samples of the appellant, since as per record 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 is sent the very same day. 

"Why there exist these differing degrees of promptitude in respect of similar, if not the same natured scientific evidence, is unexplained," it said.

The court also noted 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. The Investigating Officer admits that the said house was occupied by one Ganesh Bheema, who was never examined in the case, so also why and what is that Munna Saroj (owner) disclosed on June 19, 2010, has not seen the light of the day. Their complicity in the crime has also not been ruled out.

"If the alleged house of the appellant was thoroughly searched on June 13, 2010, then the question of recovery of articles on June 16, 2010 should not arise. The house is nothing but a small room of 8.5 feet x 6.5. feet (out of which a bathroom was 2.5 feet x 2.5 feet). The police party in the absence of appellant had microscopically scanned the said room, and yet could not find any material allegedly recovered on June 16, 2010," it said.

However, the court observed 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. 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," the bench said.

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