Evidence – Case of circumstantial evidence – Six year old child was sexually assaulted, killed and thrown her into a ‘nala’ – Appellant was arrested on the basis of suspicion – Charged for having committed offences punishable u/s.376, 377, 302 and 201, IPC –Concurrently convicted, death sentence imposed for the charge u/s.302 and sentenced for other offences – Correctness of – Held: There were yawning gaps in the chain of circumstances rendering it far from being established, pointing to the guilt of the appellant – Several irregularities and illegalities on the part of the agencies examining the case – Charges levied on the appellant not proved – Orders of the courts below set aside – Penal Code, 1860 – ss.376, 377, 302 and 201 – Code of Criminal Procedure, 1973 – s.53A – Criminal Law.
Criminal Law– Whether non-recording of the disclosure statement of the appellant in the language in which it was made and recording it in a language totally unknown to the appellant, contents whereof were also not read over and explained to him, can be said to have caused any prejudice to the cause of justice? – Held: Yes – Appellant did not know how to read and write in Marathi – Perusal of the alleged disclosure statement reveals that it was recorded in Marathi and the Investigating officer not having read over or explained contents thereof to the appellant in his vernacular language i.e Hindi – It was important for the appellant to understand the case of the prosecution against him – 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 – Statutory safeguards in reference to language not having been complied with caused prejudice to the appellant– Code of Criminal Procedure, 1973.
Code of Criminal Procedure, 1973 – s.53A – Non-compliance with – Held:In the present case, none of the witness deposed the fact of medical examination of the appellant as stipulated u/s.53A – No reason was given for having decided that there was no need to comply with the provisions of s.53A– Samples of the blood and semen of the appellant were sent for forensic analysis – However, there is nothing on record to establish as to who took such samples, on what date, on how many occasions and why were they not sent all at once – None of the police officials testified to the formalities of keeping the samples safe and secure being complied with – There is only one document (Ext.79) on record, indicating the appellant to have been medically examined – But even this document does not reveal sample of the body part being drawn – In any event, the doctor who conducted such examination did not testify the correctness of the contents thereof – Also, the document itself is uninspiring confidence having certain interpolations therein – Additionally, the document does not fall true to the statutory requirements imposed u/s.53A – This 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 – Medical examination of the appellant would have resulted into ascertainment of such assault – Samples when collected are to be sent to the concerned laboratory as soon as possible – Delay in sending the samples is unexplained – “Without any delay” and “chain of custody” aspects which are indispensable to the vitality of such evidence, were not complied with – Thus, in the instant case, the DNA Report cannot be the basis to send appellant to the gallows – Maharashtra Police Manual – Appendix XXIV – Evidence – Criminal Law.
Evidence – Value of DNA evidence – Discussed.
Criminal Law – Crime involving severe punishments such as imprisonment for life or the sentence of death – Role and responsibilities of the investigating authorities, not adhered to – Deprecated.
Allowing the appeals, the Court
HELD: 1.1 The Appellant did not know how to read and write in Marathi. This being the position, this Court has 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. 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 original testimony, from which the text, tenor and true import of their testimony may be gauged, is not part of the record. Therefore, it is apparent that statutory safeguards in reference to language have not been complied with, causing prejudice to the appellant in terms of Syed Qasim Rizvi. [Para 45][168-F-H; 169-A] Syed Qasim Razvi v. State of Hyderabad 1953 SCR 589 – followed.
Siju Kurian v. State of Karnataka 2023 SCC OnLine
429 – distinguished.
1.2 No blood of the appellant was found on any one of the articles recovered by the police. Only stains of semen were found on the nicker (brown) belonging to the prosecutrix and her vaginal swabs. Samples of the blood and semen of the appellant were sent for forensic analysis. Importantly though, there is nothing on record to establish as to who took such samples, on what date, on how many occasions and why were they not sent all at once, none of the police officials have testified to the formalities of keeping the samples safe and secure being complied with. There is only one document (Ext.79) on record, indicating the appellant to have been medically examined. But even this document does not reveal sample of the body part being drawn. In any event, the doctor who conducted such examination, has not stepped into the witness box to testify the correctness of the contents thereof. Also the document itself is uninspiring confidence as this Court notices certain interpolations therein and in a different hand. Additionally, the document does not fall true to the statutory requirements imposed under Section 53A Cr.P.C.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. 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. Samples when collected are sent to the concerned laboratory as soon as possible. Chain of custody implies that right from the time of taking of the sample, to the time its role in the investigation and processes subsequent, is complete, each person handling said piece of evidence must duly be acknowledged in the documentation, so as to ensure that the integrity is uncompromised. It is recommended that a document be duly maintained cataloguing the custody. A chain of custody document in other words is a document, “which should include name or initials of the individual collecting the evidence, each person or entity subsequently having custody of it, dated the items were collected or transferred, agency and case number, victim’s or suspect’s name and the brief description of the item.” 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. In the present case, even though, the DNA evidence by way of a report was present, its reliability is not infallible, especially not so in light of the fact that the uncompromised nature of such evidence cannot be established; and other that cogent evidence is absent almost in its entirety. [Paras 52, 54, 56, 58, 61-63 and 66][173-A-B; 174-D-E, F-G; 176B-G; 179-C-D]
Guidelines for collection, storage and transportation of Crime Scene DNA samples For Investigating OfficersCentral Forensic Science Laboratory Directorate Of Forensic Sciences Services Ministry Of Home Affairs, Govt. of India – referred to.
1.3 In the instant case, the reasons why the investigation officers were changed time and again from PW 6 to PW 12 and then to PW 13, is surprising and unexplained. 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 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- ‘GB’ and ‘MS’ went unexamined etc., such multitudinous lapses have compromised the quest to punish the doer of such a barbaric act in absolute peril. The charges levied on the appellant stand not proved [Paras 77 and 79][180G-H; 181-A-C] Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Indrajit Das v. State of Tripura 2023 SCC OnLine SC 201; Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130 : [2011] 8 SCR 774; Rajendra PrahladraoWasnik v. State of Maharashtra (2019) 12 SCC 460 : [2018] 14 SCR 585; Pattu Rajan v. State of T.N. (2019) 4 SCC 771; Manoj v. State of M.P. (2023) 2 SCC 353;
Maghavendra Pratap Singh @Pankaj Singh v. State of Chattisgarh 2023 SCC OnLine SC 486 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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