Supreme Court Sets Aside Death Penalty in Rape-Murder Case of 6-Year-Old Child [Read Judgment]

NEW DELHI: The Supreme Court has ordered release of a man awarded death penalty in a case related to rape and murder of a six-year-old girl child, discarding the circumstantial evidence including DNA analysis due to procedural irregularities and non compliance of statutory mandates.

The court set aside the Bombay High Court's judgement which upheld the death penalty in view of "yawning gaps" in the chain of circumstances pointing to the guilt of the accused.

A bench of Justices B R Gavai, Vikram Nath and Sanjay Karol set Prakash Nishad alias Kevat Zinak Nishad free, allowing his appeal against the 2015 HC's judgement, which had upheld the trial court's order sentencing him to the capital punishment.

The court said the charges, although serious and grievous in nature, cannot be said to have been met against the present appellant.

The court noted 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.

After making analysis of the evidence, the bench said 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.

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

The prosecution relied upon the appellant's disclosure statement, recovery of blood and semen stained clothes and scientific analysis including DNA examinations.

The court, however, said what was the basis of appellant being a suspect at the first instance, remains 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.

Justice Karol, who authored the judgement, also pointed out the reasons why the investigation officers were changed time and again "is surprising and unexplained".

He also said no reason was 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, even as detailed procedure has been prescribed under 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.

In the instant case, the court said  who took the samples were not explained and the doctor who conducted such examination (DNA), has not stepped into the witness box.

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

The court also noted there is unexplained delay in sending the samples collected for analysis; a 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.

"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.

[Read Judgment]