As per the case facts, the appellant was charged with serious offenses including murder, rape, unnatural offenses, and causing evidence to disappear. The trial court convicted him and the High ...
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1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS .1636-1637 OF 2023
(Arising out of SLP(Crl.) Nos.11009-11010/2015)
Prakash Nishad @ Kewat Zinak Nishad … Appellant
Versus
State of Maharashtra … Respondent
J U D G M E N T
SANJAY KAROL, J.
Leave granted.
2. The following issues arise for consideration in the present
appeals :
1) Whether non-recording of a disclosure statement
of the appellant in the language in which it is
made and recording of the same in a language
totally unknown to the appellant, contents
2
whereof are also not read over and explained to
him, can be said to have caused any prejudice to
the cause of justice?
2) Whether DNA evidence can form the solitary basis
in determining the guilt of the appellant?
3) Whether the circumstances as identified and
relied on by the prosecution indeed point to the
guilt only of the appellant, closing out any and all
other possibilities of any other person?
The Factual Prism
3. Pursuant to FIR No.109/2010 dated 12.6.2010 registered at
P.S. Bhayander (Thane, Maharashtra), the appellant Prakash
Nishad @ Kewat Zinak Nishad was charged for having committed
an offence punishable under Sections 376, 377, 302 and 201 of
the Indian Penal Code, 1860 (‘IPC’ for short). The Trial Court vide
judgment dated 27.11.2014 rendered in Sessions Case
No.407/2010, convicted the accused in connection with all the
offences and imposed capital punishment for the charge under
Section 302 IPC and sentence of imprisonment for other offences.
Hereinbelow is a tabular representation of the sentences as
imposed by the Trial Court:
3
4. Such findings of fact and conviction, including that of the
death sentence imposed were affirmed by the High Court of
Bombay, being the first Court of Appeal in both the proceedings.
The reference was also answered in terms of common judgment
dated 13-14.10.2015 rendered in Criminal Appeal No.88/2015
and Criminal Confirmation Case No.4/2014.
Hence, the present appeals preferred by the appellant.
5. The courts below concurrently found the prosecution to have
established the case beyond reasonable doubt, i.e., the appellant
after sexually assaulting a minor girl (aged six years) put her to
death. Also, in an attempt to destroy the evidence threw her into
a ‘nala’ (drain) and concealed material evidence of crime.
S.No. Statutory provision
under the Indian
Penal Code, 1860
Imposition of Sentence on the Appellant
1. Section 376 Life imprisonment and fine of Rs. 1,000.
In default, rigorous imprisonment for a
time period of 3 months.
2. Section 377 Life imprisonment and fine of Rs. 1000.
In default, rigorous imprisonment for a
time period of 3 months.
3. Section 302 Death Penalty and fine of Rs. 3,000. In
default, rigorous imprisonment for a
time period of 9 months.
4. Section 201 Rigorous imprisonment for 7 years and
fine of Rs. 1,000. In default, rigorous
imprisonment for a time period of 3
months.
4
6. At the threshold, we may point out that it is a case of
circumstantial evidence, as none has witnessed the crime for
which the appellant stands charged for. The prosecution case is
primarily based, not on ocular evidence but on the confessional
statement of the appellant leading to the recovery of incriminating
articles and through scientific analysis establishing his guilt. The
sheet-anchor of the case being the DNA analysis report stating the
semen of the appellant found on the undergarments of the
prosecutrix (nicker) and the vaginal smear slide of the prosecutrix.
7. We now proceed to examine the prosecution case, as has
unfurled through the testimonies of the prosecution witnesses.
However, in the service of ease, the 13 prosecution witnesses given
in a tabular form, which are categorised as follows:
1) Testimony of the medical examiner, i.e., PW 4 – Dr. Anjali
Pimple (Ext.27);
2) Testimonies of the independent witnesses, i.e., PW 1 –
Mustakin Mohamad Ismail Shaikh , father (Ext.18), PW 2 –
Rehanabano, mother (Ext.20) and PW 3 – Falim Ahmed Ibrahim
Shaikh, uncle (Ext.21)(all being the relatives of the
prosecutrix);
3) Testimonies of the Investigating Officer, i.e., PW 6 – Sub-
Inspector Suresh Ganpat Chillawar, 1
st Investigating Officer
(Ext.42 ), PW 11 – Ashok Sonar, Head Constable (Ext.56), PW
5
12 – A.P.I. Sudhir Shantaram, 2
nd Investigating Officer (Ext.65)
and PW 13 – Deputy Commissioner of Police Deepak Pundalik
Devraj, 3
rd Investigating Officer (Ext.67); and
4) Testimonies of the witnesses to the recovery of incriminating
articles, i.e., PW 5 – Bipin Sohanlal Bafna (Ext.34), PW 7 –
Suresh Jagdish Khandelwal (Ext.46), PW 8 – Vishal Navin
Chandra Saha (Ext.49), PW 9 – Vijay Sudama Soni (Ext.53) and
PW 10 – Ramlakhan Jaiswal (Ext.54), who are panch
witnesses.
S.No. Prosecution
Witness
Type
PW 1 Mustakin Mohd.
Ismail Shaikh.
Father of prosecutrix
PW 2 Rehanabano
Mohd. Shaikh
Mother of prosecutrix
PW 3 Falim Ahmed
Ibrahim Shaikh
Uncle of prosecutrix
PW 4 Dr. Anjali Pimple Medical Examiner
PW 5 Bipin Sohanlal
Bafna
Panch Witness for search
conducted on 13.06.2010
PW 6 S.I. Suresh
Ganpat Chillawar
First Investigating Officer -
conducted search on
12.06.2010
PW 7 Suresh Jagdish
Khandelwal
Panch Witness - for search
conducted on 16.06.2010
PW 8 Vishal Navin
Chandra Saha
Panch Witness - for search
conducted on 17.06.2010
PW 9 Vijay Sudama
Soni
Panch Witness – crime spot
witness on 12.06.2020
PW 10 Ramlakhan
Jaiswal
Panch Witness – crime spot
witness on 12.06.2020
PW 11 Ashok Sonar Head Constable – registered
Report on 12.06.2010
PW 12 A.P.I. Sudhir
Shantararn
Kudalkar
Second Investigation Officer –
conducted search on
13.06.2010 and on 17.06.2010.
PW 13 Deputy
Commissioner of
Police, Deepak
Pundalik Devraj
Third Investigation Officer –
conducted search on 16
06.2010 and 17.06.2010
6
8. The prosecutrix was born from the wedlock of PW 1 and
PW 2 and at the time of occurrence of the incident, i.e ., on
11.6.2010, she was just 6 years of age. Neither her identity, nor
the fact that she died as a result of major ante-mortem injuries, is
in dispute.
9. Dr. Anjali Pimple (PW 4), who examined the body of the
prosecutrix, has testified to the factum of the post-mortem
conducted by her and preparation of medical report (Ext.28)
thereof. As a witness on oath, she has deposed that the
prosecutrix suffered multiple injuries (15 in total) on her body,
including on both of her private parts. Undoubtedly such injuries
are severe, serious and grievous in nature. Thus, the prosecution
has established the case of homicidal death beyond any doubt.
10. The question which arises for consideration is: as to who
committed the dastardly crime? Was it only the appellant or
someone else?
11. For ascertaining such fact, we now proceed to examine the
prosecution case as set out in different stages, be it investigation
or trial.
12. The FIR dated 12.6.2010 (Ext.44), so registered on the
complaint of PW 1 (Ext.19 which forms part of Ext.1), records that
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in the morning of 12
th June, 2010 the dead body of the prosecutrix
was found floating in the Nala, in close proximity to her house.
She had been sexually assaulted and killed by an “unidentified
person”, after which the body was thrown into the nala with the
objective of destruction of evidence of such assault.
13. Significantly, none is suspected at this stage. The said FIR
was recorded by Police Officer - PW 11. The investigation
consequent thereto was conducted by three people – PW 6, PW 12,
and PW 13.
14. PW 6 (the 1
st Investigating Officer) in the presence of Panch
Witnesses – PW 9 and PW 10, recovered the body of the prosecutrix
and sent it for post-mortem, which was conducted by PW 4. This
Investigating Officer only conducted the spot search. His role ends
here.
15. Thereafter, PW 12 (the 2
nd Investigating Officer) based on
certain inputs (not disclosed), arrested the appellant from his
workplace on 13.6.2010 and searched his house in the presence
of two independent witnesses, namely, PW 5 and Piyush Ramesh
Kumar Jain (not examined). The search resulted in recovery of
certain incriminating articles vide memo Ext.35. The appellant
was in no manner associated with such a search.
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16. Thereafter, further investigation was entrusted to PW 13 - the
Deputy Commissioner of Police (the third Investigating Officer),
who, on the basis of disclosure statement of the appellant,
conducted the search at two places, including the house of the
appellant previously searched on 13.6.2010. Such searches were
conducted on 16
th and 17
th of June, 2010, leading to the recovery
of certain incriminating articles linking the appellant to the crime,
which stood established in DNA reports (Ext.85 & 86) prepared by
the forensic experts through scientific analysis. The Investigating
Officer found tell-tale signs of the appellant in the shape of stains
of his semen, on the vaginal smear slide of the prosecutrix and
blood stains of the prosecutrix on the banian (vest) of the
appellant, linking the appellant to the crime. As such, on
completion of the investigation, a challan was presented in the
Court for trial.
17. In the aforesaid backdrop, we now proceed to examine the
testimonies of the witnesses as categorized above.
18. On oath, PW 1, (father of the prosecutrix) categorically admits
that he had not expressed any doubt on any person for having
caused the death of his daughter. He expressly stated that “I had
no doubt on any one about the death of my daughter”. He
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recognized the appellant who, according to the said witness, lived
in the same “chawl”. His testimony is indicative of the fact that
on the evening of 11.6.2010, his daughter (the prosecutrix), aged
6 years, after having dinner left home. Finding her not to have
returned home, he searched for her and found her to be dead, in a
“gutter” near his house. Later on, he states that prior to
14.6.2010, he had not suspected the appellant of having
committed the crime. Significantly, the date and the basis leading
to such suspicion is not disclosed by him.
19. Other aspects of his deposition, in particular, his statement
with respect to the recovery of the nicker shall be dealt with
separately. He recognized the nicker (Article 10) to be that of his
daughter.
20. PW 2, the mother of the prosecutrix, while corroborating the
testimony of her husband, added that till 14.6.2010 she was not
aware as to who had assaulted and killed her daughter. However,
in Court, she testified to having given the appellant a match box,
upon his request, in the early hours of 12.6.2010.
21. PW 3, while corroborating the version of PW 1 and PW 2, only
added that finding the prosecutrix not to have returned home, he
thought that perhaps she had gone to the neighbour’s house to
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watch television. On the morning of 12.6.2010, a neighbour -
whom he does not name - informed PW 2 of the dead body of the
prosecutrix lying in a “gutter”.
22. It is to be noted that none of the relatives have disclosed
either the complicity of the appellant in the crime or the reason for
their suspicion towards him, particularly on 14.6.2010 which was
two days after the incident.
23. The law on circumstantial evidence is well settled. When a
case is governed by such evidence, the evidence must point
singularly to the guilt of the appellant, closing out the possibility
of all other hypotheses.
24. The locus classicus on the subject is Sharad Birdhichand
Sarda v. State of Maharashtra
1. A recent judgement of this Court
authored by one of us (Vikram Nath, J.) has highlighted the well
settled law on circumstantial evidence in Indrajit Das v. State of
Tripura
2, reiterating the golden principles, as under :
“10. The present one is a case of circumstantial evidence as
no one has seen the commission of crime. The law in the case
of circumstantial evidence is well settled. The leading case
being Sharad Birdhichand Sarda v. State of Maharashtra.
According to it, the circumstances should be of a definite
tendency unerringly pointing towards the guilt of the
1
(1984) 4 SCC 116
2
2023 SCC OnLine SC 201
11
accused; the circumstances taken cumulatively should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and they should be incapable
of explanation on any hypothesis other than that of the guilt
of the accused and inconsistent with his innocence. The said
principle set out in the case of Sharad Birdhichand
Sarda (supra) has been consistently followed by this Court.
In a recent case - Sailendra Rajdev Pasvan v. State of Gujarat,
this Court observed that in a case of circumstantial evidence,
law postulates two-fold requirements. Firstly, that every link
in the chain of circumstances necessary to establish the guilt
of the accused must be established by the prosecution
beyond reasonable doubt and secondly, all the
circumstances must be consistent pointing out only towards
the guilt of the accused. We need not burden this judgment
by referring to other judgments as the above principles have
been consistently followed and approved by this Court time
and again.”
25. To establish the guilt of the appellant, the prosecution relies
upon the following circumstances:
a) The appellant was residing in the same chawl as that of
the prosecutrix;
b) Appellant was found near the scene of the crime;
c) The appellant made disclosure statements, i.e., dated
16.6.2010 Ext.47 and dated 17.6.2010 Ext.50, which led
to the recovery of incriminating articles vide Memo Nos.
Ext.48 and Ext.51. from the house of the appellant and
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another place where he had hidden the clothes belonging
to him and the prosecutrix;
d) The DNA reports prepared on scientific analysis by an
expert, establishing the blood of the prosecutrix on banian
of the appellant and his semen on the clothes of
prosecutrix and her vaginal smear slide.
26. Let us examine whether all these circumstances stand
established by the prosecution or not.
Circumstance of 13
residing in the ‘chawl’ being seen at the spot of the crime
27. PW 1 and PW 2 stated that the appellant resided in the very
same chawl as they, although they did not identify his house. Well,
that’s about all. There being no other evidence of he residing there.
Even if the version of the mother of having seen the appellant and
giving him a matchbox, in the early hours of 12.6.2010, is believed,
the same does not advance the case of the prosecution any further.
The appellant was not found at the place where the alleged crime
took place or the place from where the body was recovered. The
prosecution has not been able to establish the distance between
the two places - that of the crime and the place where the appellant
13
was spotted in the morning hours. There is no spot map or any
ocular evidence to this effect. As noted above, what led these
witnesses to discover the appellant of having committed the crime
has gone unstated. It is only on the basis of the information
furnished by PW 1, expressing his suspicion on the appellant, that
he was on 13.6.2010 arrested and the same day, his residence was
searched. It is here that the major contradiction, if not falsity, in
the prosecution case emerges. The Investigating Officer PW 12 is
categorical of having suspected the appellant only on the basis of
the information furnished by the father of the prosecutrix, i.e., PW
1. PW 12 states that “the father of deceased expressed suspicion
against the appellant and at the time of his house search was
taken.” and PW 1 states that “He did not suspect anyone prior to
14.6.2010.” The search was conducted on 13
th and not on 14
th of
June, 2010. He added that finding the house of the appellant to
be locked, he called the medical analyzer, Mumbai, whereafter, he,
by breaking open the lock of the house of the appellant, recovered
incriminating articles vide Ext.36 on 13.6.2010 and such articles
being:
“Article 1 – Square cardboard;
Article 2 – Blanket;
Article 3 – Floor tiles pieces;
Article 4 – Mat;
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Article 5 –Towel;
Article 6 –Spanner;
Article 7 –Hair found on pillow;
Article 8 – Mat; and
Article 9 – Pillow”
28. Having conducted the search in the presence of PW 5 and
Piyush Ramesh Kumar Jain (unexamined), he locked and sealed
the house. Out of the two, the prosecution examined only one
witness, namely PW 5. Perusal of the testimony of this witness as
also the Investigating Officer and the relatives of the prosecutrix,
does not establish one major fact, that being, who actually
identified the house of the appellant.
29. A ‘chawl’ is a group of tenements clustered together, very
small in size and densely populated. It ’s an inexpensive
accommodation, temporary for some, permanent for others. Living
in the same chawl, cannot be, in the attending facts of no one
having identified with certainty the exact house/room of the
appellant, a circumstance pointing to the guilt of the appellant. As
is evident from the decisions referred (supra), for a circumstance
to be established, there shouldn’t be doubt; it should not leave
room for the possibility that, not the appellant against whom the
circumstance is sought to be proved but someone else, may have
done the said crime.
15
30. None of the witnesses have deposed that it was at the
instance of the appellant that the prosecutrix left the house, nor
has anyone deposed to the effect of having seen the appellant and
the prosecutrix together at any point in time; Appellant was not
even a visitor to the house of PW 1. They have no relationship, be
it of whatever nature. All that is stated is that after having dinner
prosecutrix left home, and PW 3 states that he thought she may
have gone to the neighbour’s house to watch TV. With this being
the case, last seen theory, does not come into play. Although
argued before us, the Trial Court has correctly not considered the
same to be a circumstance of consequence, in either direction.
The Circumstance Disclosure Statement of the appellant and
the Recovery of incriminating articles
31. Conjoint reading of the testimonies of PW 12 and PW 13
further renders the prosecution case to be inherently improbable,
if not self-contradictory and impossible on this circumstance.
32. Unlike PW 5, who is categorical about having seen the blood-
stained nicker in the house of the appellant, PW 12 does not
disclose such fact. Undisputedly, both these witnesses together
visited the alleged house of the appellant only once, i.e., on
13.6.2010. It is a matter of record that police recovered only one
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nicker belonging to the prosecutrix, which was recovered at the
time of the second search conducted on 16.6.2010, which renders
the recovery by PW 13 in the presence of PW 9 to be extremely
doubtful, specifically when the search and subsequent recovery of
incriminating articles is refuted.
33. There is yet another contradiction which bears significance
in the attending facts and that being the time of the seizure of the
articles recovered during the first search. The Panchnama (Ext.
36) reveals that the same was prepared in the night of 13.6.2010
between 9.00 p.m. to 9.30 p.m., whereas according to PW 5, all
proceedings of recovery appear to have been completed before 2.00
p.m. to 2.30 p.m. by which time the witness had returned home.
In fact, the factum of search itself is in doubt as PW 5 categorically
states that after conducting the search he visited the police station
where his “signatures” were obtained, though, he clarifies that
earlier too his signatures were taken, but on what paper and for
what purpose, he did not disclose.
34. We may now proceed to the testimony of PW 13, who is the
star witness of the prosecution, i.e., the Investigating Officer.
According to his version, on 16.6.2010, the appellant, while in
police custody, made a disclosure statement (Ext.47) in the
17
presence of independent witnesses PW 7 and P.K Mehta (not
examined). The statement revealed the appellant to have
concealed the nicker of the prosecutrix as also his clothes, worn
by him at the time of incident, in his house, which he was ready
to identify and get recovered.
35. Accordingly, on 16.6.2010 PW 13 along with the Panchas,
staff and the appellant searched the room No.39 of Ganesh Deval
Nagar. The room was opened, and the appellant produced “amul
gold 45 size nicker” and one “white colour nicker of amul gold 80
cm’s size banian” having blood stains and one “grey coloured
barmuda” and one “brown colour nicker having contents written
as Sophia 65 cm” and some blood stains. The said articles were
seized vide Memo Ext.48 in the presence of the Panchas. On
17.6.2010 the appellant got recorded a second disclosure
statement while in custody, whereby, he stated that some
additional clothes which he had worn on the day of the incident
could be got recovered. Accordingly, on the basis of such
statement Ext.50 dated 17.6.2010, the police party along with the
appellant proceeded and searched room No.206 i n Deepshree
Building at, approximately two kilometers from Valiv Naka. One
Ganesh Bheema (Ganesh Kapildev Mishra) opened the door of the
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room and, as per the disclosure by the appellant, the police
recovered certain incriminating articles vide Memo (Ext.51) dated
17.6.2010.
36. All the articles recovered prior to 17.6.2010 were sent for
scientific analysis vide letters Ext.68 and Ext.69 both dated
16.6.2010, the blood sample of the appellant was sent for DNA
profiling. He also sent a letter to the Civil Hospital for collection of
the blood, nails, and hair samples of the appellant. During
investigation, he procured the report of the chemical analysis as
also the DNA report and the FSL report. The said DNA report
prepared by an expert revealed samples of “viscera” (semen) of the
appellant on swab drawn from the private parts of the prosecutrix.
He also recorded the statement of Munna Saroj, who was residing
with the appellant. So is the essence of the examination-in-chief
of this witness.
37. It may be noted that neither this witness nor anyone else has
deposed the fact of medical examination of the appellant, as is
stipulated under Section 53A of the Code of Criminal Procedure
(hereafter, ‘Cr.P.C.’).
38. Further, whether his communication for medical
examination of the appellant was ever followed up at all is not
19
known. So also, its resultant consequences. Who took the
samples of the body parts of the appellant, if at all, is a mystery.
The record does not disclose such fact. Non-examination of
Ganesh Bheema and Munna Saroj in Court, despite being cited
witnesses renders his version to be uncorroborated, thereby
creating a gap in chain of circumstances, preventing it from being
complete.
39. The house from where the articles were recovered on
17.6.2010 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 disclosed on 19.6.2010, has not seen the light of the day.
Their complicity in the crime has also not been ruled out. On this
issue examination of Ext.35 reveals that the house where appellant
was residing was owned by Munna Lalchand and that it was jointly
possessed by the appellant and Prakash who have not been
examined.
40. What further renders the veracity of the testimony of this
witness to be questionable has surfaced in the cross-examination
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part, wherein he admits not to have mentioned in the statement
Ext.47 “that the accused had hidden the clothes”. In this view of
the matter, the articles so discovered cannot be said to form a
discovery in terms Section 27 of the Evidence Act.
41. Significantly, from the testimony of PW 7 it is evident that
appellant did not know Marathi language for he states that “I know
that the appellant does not know Marathi”.
42. Close examination of the testimony of Panch witness PW 8
reveals that the appellant had given his statement in Hindi and not
in Marathi.
43. Though, PW 13 is silent on this fact, but perusal of the said
disclosure statements (Ext.47 & Ext.50) reveals the same to have
been recorded in Marathi and the Investigating Officer not having
ever read over or explained contents thereof to the appellant in his
vernacular language. As a result thereof, certainty is absent as to
the correctness of the statement as made and the statement, as
recorded by the police.
44. A Constitution Bench of this Court, in Syed Qasim Razvi v.
State of Hyderabad
3, in the following extract observed that when
3
1953 SCR 589
21
there is a lack of understanding of the language of the Court, it
causes prejudice to the appellant. The bench observed:
“9. …There is no doubt that ordinary court
proceedings in Hyderabad are conducted in Urdu, but
Urdu is certainly not the spoken language of even the
majority of the people within the Hyderabad State. 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. But in our opinion cannot be said that the
provision in the Regulation relating to proceeding being
conducted in English if the tribunal so desires per se
violates the equal protection clause in the Constitution.”
(Emphasis Supplied)
45. In the case at hand, the aforementioned proposition of law is
squarely applicable. From a perusal of material on record, we find
that 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
22
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
(supra). Here only taking note of the decision of this Court
rendered in Siju Kurian v. State of Karnataka 2023 SCC OnLine
429, we clarify the said decision to have been taken, given the
attending facts where the appellant was provided with the
assistance of interpreter and his disclosure statement leading to
discovery of a fact, unlike the instant case not linking the recovery
to the appellant with the crime.
46. Further, PW 1 has stated that the key of the room, after
effecting recovery on 16.6.2010, was given to the “room partner of
the accused”. Who is this room partner? Was he examined? Was
he aware of the clothes being hidden? Did he hide the clothes?
Was his complicity in the crime ruled out? Are all questions left to
be guessed. Such room partner remains unexamined and his
complicity and role in the crime not explored.
47. Version of the Investigating Officer, that it was PW 12 who
locked the room, does not inspire confidence. The witness does not
remember having placed on record any document indicating that
the lock was labelled and sealed for the search being conducted at
23
the first instance. It may be noted that in the memos as well, he
admits not to have mentioned where exactly the appellant had kept
clothes in the room.
48. On the issue of first disclosure statement Ext.47, we find the
version of PW 13 to be materially contradicted by the Panch
witness PW 7, who, in no uncertain terms and unrefutedly, has
deposed that “Devraj asked me that the clothes were hidden in the
appellant’s house and as to whether I was ready to act as a panch.”
(here PW 13 – the Investigating Officer is referred to as Devraj).
This totally shatters the prosecution case on the point of recovery
pursuant to the alleged disclosure statement.
49. Even on the point of recovery of the nicker of the prosecutrix
there is contradiction with regard to its place and numbers. We
notice that the dead body was recovered in the presence of two
independent witnesses, namely, PW 9 and PW 10. Significantly,
PW 9 states that on 12.6.2010 the dead body of the prosecutrix
was recovered from the nala and that “one nicker was lying on a
tin shade. One blood smeared banian was lying on the roof”. He
further adds that after recovery, the dead body was brought home.
“She was raped” (here reference is of the prosecutrix) and that
“blood had come out from the private part of the girl”. He does
24
not state that tin shade was that of the house of the appellant.
However, PW 1 has deposed that “The knicker of my daughter was
found on the roof of the accused.” But this is in complete
contradiction to the statement of PW 13 who stated that the nicker
and the banian were recovered pursuant to the disclosure
statement of the appellant. On this issue, further contradiction
emerges through the testimony of PW 10 who states that “there
were no clothes on her person” but in the very next breath adds
that “she had worn underwear on her person”, and also that “he
had not seen the body of the deceased girl”. Also, PW 10 states
that he cannot read or write in Marathi and that he affixed his
signatures on Ext.43 at the police station which is in Marathi.
Hence, what is the truth and whom to believe is difficult to infer
from the record.
Circumstance of Scientific Examination, in particular DNA
Report of the Scientific Officer
50. We may examine the case from yet another angle and that
being, as to whether, even if the recovery on the search conducted
on 13.6.2010, 16.6.2010 and 17.6.2010 is believed to be so, either
on the basis of information obtained from the police during
investigation or as a consequence of statement made by the
25
appellant or any other material obtained by the police during the
course of investigation, the same stands linked to the appellant or
not.
51. We find on this count the prosecution has not sufficiently
proven the case. This is for two reasons : (1) If the alleged house
of the appellant was thoroughly searched on 13.6.2010, as is
evident from memo Ext.35 and recovery memo Ext.36, then the
question of recovery of articles on 16.6.2010 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), as is evident from
Ext.35. The police party in the absence of appellant had
microscopically scanned the said room, and yet could not find any
material allegedly recovered on 16.6.2010 vide memo Ext.48; (2)
Even the recovered articles, be it of the search conducted on
13.6.2010, 16.6.2010 and 17.6.2010, do not sufficiently link the
appellant to the crime. For elaboration, we extract herein in a
tabular form, the articles recovered, numbered, accepted and the
scientific evaluation thereof.
26
Prakash Nishad v. State of Maharashtra. Crl. App. Nos.11009-10 / 2015
S.No. Memo Date Recovery Description of Item
FSL Report DNA Analysis
Particulars Ex. - By Witness Article Ex. Blood /
Semen of
accused
Blood of
deceased
Ex. Result
1. Panchnama
@ pg. 239 –
243
First search
35 13.06.2010 PW -
12
PW – 5
&
Shri. Piyush
Ramesh
Kumar Jain
[NOT
EXAMINED]
1 – Cardboard
Box
2 - Brown
Blanket
3 – Two Tiles
4 – Nylon Mat
5 – Yellow Towel
6 – Iron spanner
7 – One hair on
pillow
8 – Piece cut from
mat
9 – Piece cut from
pillow.
Blood stains on
all articles except
No. 7
8
9
10
11
12
13
14
15
16
No
No
No
No
No
No
No
-
No
No
Ex. 84
@ pg. 335
Yes
Yes
Yes
Yes
Yes
Yes
-
-
Yes
Yes
Ex. 84 @
pg. 335
16
17
18
-
20
-
-
22
24
Blood /
Semen of
accused
Ex. 86 @
pg. 339
Blood
deceased
Ex. 86 @
pg. 339
Blood on the
same is not
of the
accused.
Blood on
Ex. 16,
17, 18,
20, 24 is
of the
deceased.
Hair:
source
unknown.
2. Panchnama
@ pg. 262 –
264
48 16.06.2010 PW –
13
PW – 7
&
1 – brown nicker
of deceased.
1
No
Yes
1
Semen
stain on
Ex.1.
Blood on
Ex. 1, 3
27
Second
search
Shri. Pradip
Kodarlal
Mehta
[NOT
EXAMINED]
2 – blue
underwear of
accused.
3 – white baniyan
of accused.
4 – grey Bermuda
of accused.
Blood stains on
articles 1,3 and 4.
2
3
4
No
No
No
Ex. 80
@ pg. 327
No
Yes
Yes
Ex. 80
@ pg.
327
2
3
4
[Ex. 85 @
pg. 337]
is of the
deceased.
[Ex. 85
@ pg.
337]
3. Panchnama
@ pg. 285 -
287
Third search
51 17.06.2010 PW -
13
PW – 8
&
Shri. Pradeep
Harishchandra
Kajave
[NOT
EXAMINED]
1 – shirt of
accused.
2 - pant of
accused.
Blood stains on
article 1.
1
2
No
No
Ex. 82 @
pg. 331
Yes
No
Ex. 82 @
pg. 331
1
2
No
No
Blood on
Ex. 1.
Blood
group
Type “B”
28
52. From the aforesaid chart, it is evident that 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.
53. To establish clinching evidence against the appellant, the
prosecution seeks reliance on communication dated 16.6.2010
whereby PW 13 sent certain articles for analysis to the Director,
Forensic Laboratory, Maharashtra. In terms of the aforesaid, the
articles, be that of the appellant or that of the prosecutrix
recovered on 12
th, 13
th and 14
th of June, 2010, are as follows :
Muddemal sealed by Medical Officer of the prosecutrix
procured on 12.06.2010
S.No. Bottle Description of Articles Exhibit
1. A Blood sample. Ex. 1
2. B Nail clippings from left hand. Ex. 2
3. C Sample of hair on head. Ex. 3
4. D Vaginal fluid swab. Ex. 4
5. E Vaginal fluid swab. Ex. 5
6. F Fluid in mouth. Ex. 6
7. G Nail clipping from right hand. Ex. 7
Articles of the Appellant procured on 13.06.2010
8. - Square-shaped card box, having the
words “Sunora Floor Tiles”.
Ex. 8
29
9. - One chocolate coloured dirty
blanket.
Ex. 9
10. - Two pieces of green coloured tiles. Ex. 10
11. - One piece of green, yellow, and blue
coloured nylon mat.
Ex. 11
12. - One yellow towel. Ex. 12
13. - One iron spanner. Ex. 13
14. - One hair found on the pillow. Ex. 14
15. - One piece of mat. Ex. 15
16. - One piece of cloth from a pillow. Ex. 16
Muddemal sealed by Medical Officer, in medical examination
of appellant conducted on 14.06.2010
17. Bottle 1 Viscera sample. Ex. 17
18. Bottle 2 Blood sample. Ex. 18
19. Bottle 3 Blood sample (citrate). Ex. 19
20. Bottle 4 Pubic hair sample. Ex. 20
21. Bottle 5 Sample of hair on head. Ex. 21
22. Bottle 6 Swab taken by cotton of the
scratched injury on the neck.
Ex. 22
23. Bottle 7 Nail clippings of right hand. Ex. 23
24. Bottle 8 Nail clipping of left hand. Ex. 24
54. Perusal of these documents reveals that 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, we notice that none of the police
30
officials have testified to the formalities of keeping the samples safe
and secure being complied with.
55. The first alleged blood sample of the appellant collected on
14.6.2010 was sent for analysis vide communication dated
16.6.2010 (Ext.60). The second alleged blood sample of the
appellant taken on 20.7.2010 was sent the very same day vide
communication (Ext.72).
56. 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 we notice 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.
57. This Court in Krishan Kumar Malik v. State of Haryana
4
(two-Judge), observed the necessity of compliance with Section
53A, which later on was clarified in Rajendra Prahladrao
4
(2011) 7 SCC 130
31
Wasnik v. State of Maharashtra
5 (three-Judges) that the said
provision is not mandatory in nature. It was observed that it only
requires a positive call to be taken in respect of the need to follow
the provision or not. The bench held-
“49…There must be reasonable grounds for believing that
the examination of a person will afford evidence as to the
commission of an offence of rape or an attempt to commit
rape. If reasonable grounds exist, then a medical
examination as postulated by Section 53-A(2) CrPC must be
conducted and that includes examination of the accused
and description of material taken from the person of the
accused for DNA profiling…”
(Emphasis Supplied)
58. 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
5
(2019) 12 SCC 460
32
of her body. Medical examination of the appellant would have
resulted into ascertainment of such assault.
59. As has been hitherto observed, there is no clarity of who took
the samples of the appellant. In any event, record reveals that one
set of samples taken on 14.6.2010 were sent for chemical analysis
on 16.6.2010 and the second sample taken, a month later on
20.7.2010 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.
60. We may observe that the Maharashtra Police Manual
6, when
speaking of the integrity of scientific evidence in Appendix XXIV
states-
“The integrity of exhibits and control samples must be
safeguarded from the moment of seizure upto the
completion of examination in the laboratory. This is best
done by immediately packing, sealing and labeling and to
prove the continuity of the integrity of the samples, the
messenger or bearer will have to testify in Court that what
he had received was sealed and delivered in the same
condition in the laboratory. The laboratory must certify
that they have compared the seals and found them to be
correct. Articles should always be kept apart from one
another after packing them separately and contact be
scrupulously avoided in transport also.”
6
Available here-
https://www.mahapolice.gov.in/uploads/acts_rules/MumbaiPoliceManualPartIII.pdf
33
61. 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 need for expedition in ensuring that
samples when collected are sent to the concerned laboratory as
soon as possible, we may refer to “Guidelines for collection, storage
and transportation of Crime Scene DNA samples For Investigating
Officers- Central Forensic Science Laboratory Directorate Of
Forensic Sciences Services Ministry Of Home Affairs, Govt. of
India”
7 which in particular reference to blood and semen,
irrespective of its form, i.e. liquid or dry (crust/stain or spatter)
records the sample so taken “Must be submitted in the laboratory
without any delay.”
62. The document also lays emphasis on the ‘chain of custody’
being maintained. 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
7
Available at- http://cfslchandigarh.gov.in/Uploads/Media/Original/20180627121024_IO-
SOP%20Final.pdf
34
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.”
63. 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. We have carefully perused
FSL as well as DNA report forming part of the record. A snapshot
of the said reports, in a tabulated format is presented as under :
Sr.
No.
Nature of
article
Ext. No.
as per
FSL
report
Report
dated
Article
No. &
date of
seizure
Belongs to
Accused/
Prosecu-
trix
Result and
analysis
Blood & Semen
of whom
DNA Report
1. Nicker 1 16.8. 2010 10 on
13.6.2010
Prosecutrix Yes
Prosecu-
trix
No -
2. Jangia
referred to
as
underwear
2 16.8. 2010 11 on
16.6.2010
Accused No No -
3. Banian 3 16.8. 2010 12 on
16.6.2010
Accused Yes
Prosecu-
trix
No Identical to
blood found on
Ext.1
4. Bermuda 4 16.8. 2010 13 on
16.6.2010
Accused Yes
No
5. Square
card-
board
16 12.8. 2010 1 on
13.6.2010
Accused Yes
Prosecu-
trix
No Identical to
blood found on
Ext.1
35
6. Blanket 17 12.8. 2010 2 on
13.6.2010
Accused Yes
Prosecu-
trix
No Identical to
blood found on
Ext.1
7. Floor tiles
pieces
18 12.8. 2010 3 on
13.6.2010
Accused Yes
Prosecu-
trix
No Identical to
blood found on
Ext.1
8. Mat 19 12.8. 2010 4 on
13.6.2010
Accused Yes
No -
9. Towel 20 12.8. 2010 5 on
13.6.2010
Accused Yes
Prosecu-
trix
No Identical to
blood found on
Ext.1
10. Spanner 21 12.8. 2010 6 on
13.6.2010
Accused - No -
11. Hair found
on pillow
22 12.8. 2010 7 on
13.6.2010
Accused - No Unknown
person
12. Mat 23 12.8. 2010 8 on
13.6.2010
Accused Yes
No -
13. Pillow 24 12.8. 2010 9 on
13.6.2010
Accused Yes
Prosecu-
trix
No Identical to
blood found on
Ext.1
14. Vaginal
smear
slide
5 12.8. 2010 - Prosecutrix No
Yes Match with the
male haplo-
types of
accused. Are
from same
paternal
progeny
For ready reference the extract of the DNA analysis Ext. is
reproduced as under.
“Interpretation
1. The DNA profile of blood detected on ex16 Card board, ex 17
Blanket, ex 18 two pieces of tile, ex 20 Towel, ex 24 piece of cloth from
pillow, and blood detected on ex 1 knicker of victim Sayunmbano M.A.
Shaikh, ex 3 sandow baniyan of accused Prakash Zinak Nishad of
F.S.L.M.L. Case No. DNA 315/10 and ex 1 blood sample of victim
Sayunmbano M.A. Shaikh is identical & from one and same source of
female origin. DNA profiles match with the maternal and paternal alleles
in the source of blood.
2. The DNA profile of blood detected on ex 16 Card board, ex 17
Blanket, ex 18 two pieces of tile, ex 20 Towel, ex 24 piece of cloth from
pillow, ex1 blood sample of victim Sayunmbano M.A. Shaikh and blood
defected on ex 1 knicker of victim Sayunmbano M.A. Shaikh, ex 3
sandow baniyan of accused Prakash Zinak Nishad of F.S.L.M.L. Case
No.DNA 315/10 and blood sample of Prakash Zinak Nishad F.S.L.M.L.
Case No. DNA 366/10 is from one and same source. DNA profiles did not
match with he maternal and paternal alleles in the source of blood.
3. Control DNA profile of unknown person is obtained from ex 22
One hair.”
36
64. Even otherwise, on the value of DNA evidence, we may refer
to an observation made by this Court, in Pattu Rajan v. State of
T.N.
8, as under;
“52. Like all other opinion evidence, the probative value
accorded to DNA evidence also varies from case to case,
depending on the facts and circumstances and the weight
accorded to other evidence on record, whether contrary or
corroborative. This is all the more important to remember,
given that even though the accuracy of DNA evidence may
be increasing with the advancement of science and
technology with every passing day, thereby making it more
and more reliable, we have not yet reached a juncture where
it may be said to be infallible. Thus, it cannot be said that
the absence of DNA evidence would lead to an adverse
inference against a party, especially in the presence of other
cogent and reliable evidence on record in favour of such
party.”
(Emphasis supplied)
65. Referring to the above case, a three-Judge bench in Manoj v.
State of M.P.
9, through S. Ravindra Bhat J., observed;
“158. This Court, therefore, has relied on DNA reports, in
the past, where the guilt of an accused was sought to be
established. Notably, the reliance was to corroborate. This
Court highlighted the need to ensure quality in the testing
and eliminate the possibility of contamination of evidence;
it also held that being an opinion, the probative value of
such evidence has to vary from case to case.”
66. 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
8 (2019) 4 SCC 771
9 (2023) 2 SCC 353
37
evidence cannot be established; and other that cogent evidence as
can be seen from our discussion above, is absent almost in its
entirety.
67. Unfortunately, the courts below did not go into all the
aforesaid aspects and presumptuously assumed the guilt of the
appellant and held him to have committed the crime.
68. What prevailed upon the courts below, it appears, was the
testimony of the doctor PW 4 - Dr. Anjali Pimple, who conducted
the post-mortem and, “the clinching medical evidence” and
“clinching DNA report”. It is on the basis of the said medical
evidence 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.
69. Further, what weighed with the courts below is 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.
38
70. 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.
71. 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.
72. There are, in fact, yawning gaps in the chain of circumstances
rendering it far from being established- pointing to the guilt of the
appellant.
73. As already pointed out, there are several irregularities and
illegalities on the part of the agencies examining the case.
74. The questions raised in the instant appeals are answered
accordingly.
75. Before parting with the matter, we must take note of the
manner in which the investigation into this dastardly crime was
39
undertaken. 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, whomsoever they may have been,
remains unpunished to this day.
76. 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. 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.
77. 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. As we have already pointed out,
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
40
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- Ganesh Bheema and Munna
Saroj went unexamined etc., such multitudinous lap ses have
compromised the quest to punish the doer of such a barbaric act
in absolute peril.
78. The charges mentioned above, although serious and grievous
in nature, cannot 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, as the
above discussion has laid out clearly, the circumstances forming
the chain of commission of this crime cannot and do not point
41
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.
79. In view of the above the charges levied on the appellant stand
not proved.
80. This court, recently, in Maghavendra Pratap Singh @Pankaj
Singh v. State of Chattisgarh
10 had emphasised the role and
responsibilities of the investigating authorities by referring to
various judgments of this Court. Such principles, which are
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.
81. In view of the above, the appeals are allowed. Ex-consequenti,
the judgment dated 27.11.2014 in Sessions Case No.407/2010,
passed by District Judge-2 and Additional Sessions Judge, Thane
as affirmed by the High Court vide judgment dated 13th & 14th
October, 2015 in Confirmation Case No.4/2014 titled as State of
10
2023 SCC OnLine SC 486
42
Maharashtra v. Prakash Nishad @ Kewat Zinak Nishad and
Criminal Appeal No.88/2015 titled as Prakash Nishad @ Kewat
Zinak Nishad Vs. State of Maharashtra, respectively, convicting
the appellant under Sections 302, 376, 377 and 201 IPC and
sentencing him to death and life imprisonment and other
punishments described above, are quashed and set aside.
82. The appellant be set at liberty forthwith, if not required in any
other case. Pending applications, if any, are also disposed of.
…………… ……….J.
(B.R. GAVAI)
……………………J.
(VIKRAM NATH)
……………………J.
(SANJAY KAROL )
Dated : 19
th
May, 2023;
Place : New Delhi.
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