PRAKASH NISHAD @ KEWAT ZINAK NISHAD versus STATE OF MAHARASHTRA on 19 May 2023

[2023] 8 S.C.R. 152

SUPREME COURT REPORTS

[2023] 8 S.C.R.

APRAKASH NISHAD @ KEWAT ZINAK NISHAD

v.

STATE OF MAHARASHTRA

(Criminal Appeal Nos.1636-1637 of 2023)

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MAY 19, 2023

[B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]

Evidence – Case of circumstantial evidence – Six year oldchild was sexually assaulted, killed and thrown her into a ‘nala’ –Appellant was arrested on the basis of suspicion – Charged forhaving committed offences punishable u/s.376, 377, 302 and 201,IPC –Concurrently convicted, death sentence imposed for the chargeu/s.302 and sentenced for other offences – Correctness of – Held:There were yawning gaps in the chain of circumstances rendering itfar from being established, pointing to the guilt of the appellant –Several irregularities and illegalities on the part of the agenciesexamining 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.

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Criminal Law– Whether non-recording of the disclosurestatement of the appellant in the language in which it was madeand recording it in a language totally unknown to the appellant,contents whereof were also not read over and explained to him, canbe 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 wasrecorded in Marathi and the Investigating officer not having readover or explained contents thereof to the appellant in his vernacularlanguage i.e Hindi – It was important for the appellant to understandthe case of the prosecution against him – There is nothing on recordto show that it was not practicable to record evidence of theappellant as well as others, whose vernacular was not Marathi, butHindi – Statutory safeguards in reference to language not havingbeen complied with caused prejudice to the appellant– Code ofCriminal Procedure, 1973.

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Code of Criminal Procedure, 1973 – s.53A – Non-compliancewith – Held:In the present case, none of the witness deposed thefact of medical examination of the appellant as stipulated u/s.53A –No reason was given for having decided that there was no need tocomply with the provisions of s.53A– Samples of the blood and semenof the appellant were sent for forensic analysis – However, there isnothing on record to establish as to who took such samples, onwhat date, on how many occasions and why were they not sent allat once – None of the police officials testified to the formalities ofkeeping the samples safe and secure being complied with – There isonly one document (Ext.79) on record, indicating the appellant tohave been medically examined – But even this document does notreveal sample of the body part being drawn – In any event, thedoctor who conducted such examination did not testify thecorrectness of the contents thereof – Also, the document itself isuninspiring confidence having certain interpolations therein –Additionally, the document does not fall true to the statutoryrequirements imposed u/s.53A – This is a glaring lapse in theinvestigation of this crime, for a six year-old child was sexuallyassaulted on both of the private parts – Medical examination of theappellant would have resulted into ascertainment of such assault –Samples when collected are to be sent to the concerned laboratoryas soon as possible – Delay in sending the samples is unexplained– “Without any delay” and “chain of custody” aspects which areindispensable to the vitality of such evidence, were not compliedwith – Thus, in the instant case, the DNA Report cannot be the basisto send appellant to the gallows – Maharashtra Police Manual –Appendix XXIV – Evidence – Criminal Law.

Evidence – Value of DNA evidence – Discussed.

Conclusion

Evidence – Value of DNA evidence – Discussed.

Criminal Law – Crime involving severe punishments such asimprisonment for life or the sentence of death – Role andresponsibilities of the investigating authorities, not adhered to –Deprecated.

Allowing the appeals, the Court

HELD: 1.1 The Appellant did not know how to read andwrite in Marathi. This being the position, this Court hashighlighted the importance of the appellant being able to AB

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Aunderstand the case of the prosecution against him. Inability todo so, by virtue of a language barrier causes prejudice to thecase of the appellant. There is nothing on record to show that itwas not practicable to record evidence of the appellant as well asothers, whose vernacular was not Marathi, but Hindi. The originaltestimony, from which the text, tenor and true import of theirBtestimony may be gauged, is not part of the record. Therefore, itis apparent that statutory safeguards in reference to languagehave not been complied with, causing prejudice to the appellantin terms of Syed Qasim Rizvi. [Para 45][168-F-H; 169-A]

Syed Qasim Razvi v. State of Hyderabad 1953 SCR 589C– followed.

Siju Kurian v. State of Karnataka 2023 SCC OnLine429 – distinguished.

1.2 No blood of the appellant was found on any one of theDarticles recovered by the police. Only stains of semen were foundon the nicker (brown) belonging to the prosecutrix and her vaginalswabs. Samples of the blood and semen of the appellant weresent for forensic analysis. Importantly though, there is nothingon 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,Enone of the police officials have testified to the formalities ofkeeping the samples safe and secure being complied with. Thereis only one document (Ext.79) on record, indicating the appellantto have been medically examined. But even this document doesnot reveal sample of the body part being drawn. In any event, theFdoctor who conducted such examination, has not stepped intothe witness box to testify the correctness of the contents thereof.Also the document itself is uninspiring confidence as this Courtnotices certain interpolations therein and in a different hand.Additionally, the document does not fall true to the statutoryrequirements imposed under Section 53A Cr.P.C.Here, a childGof the tender age of six was assaulted brutally and killed. Theappellant was arrested on suspicion of having committed thecrime. The police proceeded in accordance therewith and weresupposed to have made discoveries as per the statements madeby the appellant in custody, then in what manner can it be said H

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that, at the time when such a positive call was required to bemade by the authorities, reasonable grounds did not exist for thecompliance with Section 53A to be a must? This, in the view ofthis Court is a glaring lapse in the investigation of this crime, fora six-year-old child was sexually assaulted on both of the privateparts of her body. Medical examination of the appellant wouldhave resulted into ascertainment of such assault. In the presentcase, the delay in sending the samples is unexplained andtherefore, the possibility of contamination and the concomitantprospect of diminishment in value cannot be reasonably ruledout. Samples when collected are sent to the concerned laboratoryas soon as possible. Chain of custody implies that right from thetime of taking of the sample, to the time its role in theinvestigation and processes subsequent, is complete, eachperson handling said piece of evidence must duly be acknowledgedin the documentation, so as to ensure that the integrity isuncompromised. It is recommended that a document be dulymaintained cataloguing the custody. A chain of custody documentin other words is a document, “which should include name orinitials of the individual collecting the evidence, each person orentity subsequently having custody of it, dated the items werecollected or transferred, agency and case number, victim’s orsuspect’s name and the brief description of the item.” Indisputably,these “without any delay” and “chain of custody” aspects whichare indispensable to the vitality of such evidence, were notcomplied with. In such a situation, this court cannot hold the DNAReport Ext.85 to be so dependable as to send someone to thegallows on this basis. In the present case, even though, the DNAevidence by way of a report was present, its reliability is notinfallible, especially not so in light of the fact that theuncompromised 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; 176-B-G; 179-C-D]

Guidelines for collection, storage and transportationof Crime Scene DNA samples For Investigating Officers-Central Forensic Science Laboratory Directorate OfForensic Sciences Services Ministry Of Home Affairs,Govt. of India – referred to.

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A1.3 In the instant case, the reasons why the investigationofficers were changed time and again from PW 6 to PW 12 andthen to PW 13, is surprising and unexplained. No reason standsgiven for having decided that there was no need to comply withthe provisions of Section 53A, Cr.P.C.; there is unexplained delayin sending the samples collected for analysis; a premises alreadyBsearched was searched again, the reason for which is not bornefrom record; lock panchnama is not prepared; no samples of bloodand semen of the appellant can be said to have been drawn byany medical or para medical staff; allegedly an additional sampleis taken from the appellant more than a month after the arrest;Calleged disclosure statement of the appellant was never read overand explained to the appellant in his vernacular language; theappellant was not residing alone at the place alleged to be hisresidence; and what was the basis of appellant being a suspect atthe first instance, remains a mystery; persons who may have shedlight on essential aspects- ‘GB’ and ‘MS’ went unexamined etc.,Dsuch multitudinous lapses have compromised the quest to punishthe doer of such a barbaric act in absolute peril. The chargeslevied on the appellant stand not proved [Paras 77 and 79][180-G-H; 181-A-C]

Sharad Birdhichand Sarda v. State of MaharashtraE(1984) 4 SCC 116 : [1985] 1 SCR 88; Indrajit Das v.State of Tripura 2023 SCC OnLine SC 201; KrishanKumar Malik v. State of Haryana (2011) 7 SCC 130 :[2011] 8 SCR 774; Rajendra PrahladraoWasnik v. Stateof Maharashtra (2019) 12 SCC 460 : [2018] 14 SCRF585; 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 ofChattisgarh 2023 SCC OnLine SC 486 – relied on.

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PRAKASH NISHAD @ KEWAT ZINAK NISHAD v. STATE OFMAHARASHTRA

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos.1636-1637 of 2023.

From the Judgment and Order dated 13.10.2015 in CRLAP No.88of 2015, CONFC No.4 of 2014 and SC No.407 of 2010 and dated14.10.2015 in CONFC No.4 of 2014 and CRLAP No.88 of 2015 of theHigh Court of Judicature at Bombay.

B. H. Marlapalle, Sr. Adv., Ms. Pratiksha Basarkar, Rishad AhmedChowdhury, Avinish Kumar Saurabh, Ms. Anuja Mishra, Advs. for theAppellant.

Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,Ms. Shreya Saxena, Ms. Yamini Singh, Sourav Singh, Advs. for theRespondent.

The Judgment of the Court was delivered by 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 theappellant in the language in which it is made and recordingof the same in a language totally unknown to the appellant,contents whereof are also not read over and explained tohim, can be said to have caused any prejudice to the causeof justice?

2) Whether DNA evidence can form the solitary basis indetermining the guilt of the appellant?

3) Whether the circumstances as identified and relied on bythe 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 atP.S. Bhayander (Thane, Maharashtra), the appellant Prakash Nishad @Kewat Zinak Nishad was charged for having committed an offencepunishable under Sections 376, 377, 302 and 201 of the Indian PenalCode, 1860 (‘IPC’ for short). The Trial Court vide judgment dated A

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A27.11.2014 rendered in Sessions Case No.407/2010, convicted theaccused in connection with all the offences and imposed capitalpunishment for the charge under Section 302 IPC and sentence ofimprisonment for other offences. Hereinbelow is a tabular representationof the sentences as imposed by the Trial Court:

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4. Such findings of fact and conviction, including that of the deathsentence imposed were affirmed by the High Court of Bombay, beingthe first Court of Appeal in both the proceedings. The reference wasalso answered in terms of common judgment dated 13-14.10.2015rendered in Criminal Appeal No.88/2015 and Criminal Confirmation CaseENo.4/2014.

Hence, the present appeals preferred by the appellant.

5. The courts below concurrently found the prosecution to haveestablished the case beyond reasonable doubt, i.e., the appellant aftersexually assaulting a minor girl (aged six years) put her to death. Also, inFan attempt to destroy the evidence threw her into a ‘nala’ (drain) andconcealed material evidence of crime.

6. At the threshold, we may point out that it is a case ofcircumstantial evidence, as none has witnessed the crime for which theappellant stands charged for. The prosecution case is primarily based,Gnot on ocular evidence but on the confessional statement of the appellantleading to the recovery of incriminating articles and through scientificanalysis establishing his guilt. The sheet-anchor of the case being theDNA analysis report stating the semen of the appellant found on theundergarments of the prosecutrix (nicker) and the vaginal smear slide ofthe prosecutrix.H

7. We now proceed to examine the prosecution case, as hasunfurled through the testimonies of the prosecution witnesses. However,in the service of ease, the 13 prosecution witnesses given in a tabularform, which are categorised as follows:

1) Testimony of the medical examiner, i.e., PW 4 – Dr. AnjaliPimple (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 AhmedIbrahim Shaikh, uncle (Ext.21)(all being the relatives of theprosecutrix);

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 12 – A.P.I. Sudhir Shantaram, 2[nd] Investigating Officer(Ext.65) and PW 13 – Deputy Commissioner of PoliceDeepak Pundalik Devraj, 3[rd] Investigating Officer (Ext.67);and

4) Testimonies of the witnesses to the recovery of incriminatingarticles, i.e., PW 5 – Bipin Sohanlal Bafna (Ext.34), PW 7– Suresh Jagdish Khandelwal (Ext.46), PW 8 – VishalNavin Chandra Saha (Ext.49), PW 9 – Vijay Sudama Soni(Ext.53) and PW 10 – Ramlakhan Jaiswal (Ext.54), whoare panch witnesses.

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8. The prosecutrix was born from the wedlock of PW 1 and PW2 and at the time of occurrence of the incident, i.e., on 11.6.2010, sheCwas just 6 years of age. Neither her identity, nor the fact that she died asa result of major ante-mortem injuries, is in dispute.

9. Dr. Anjali Pimple (PW 4), who examined the body of theprosecutrix, has testified to the factum of the post-mortem conducted byher and preparation of medical report (Ext.28) thereof. As a witness onDoath, she has deposed that the prosecutrix suffered multiple injuries (15in total) on her body, including on both of her private parts. Undoubtedlysuch injuries are severe, serious and grievous in nature. Thus, theprosecution has established the case of homicidal death beyond any doubt.

10. The question which arises for consideration is: as to whoEcommitted the dastardly crime? Was it only the appellant or someoneelse?

11. For ascertaining such fact, we now proceed to examine theprosecution case as set out in different stages, be it investigation or trial.

12. The FIR dated 12.6.2010 (Ext.44), so registered on theFcomplaint of PW 1 (Ext.19 which forms part of Ext.1), records that inthe morning of 12[th] June, 2010 the dead body of the prosecutrix wasfound floating in the Nala, in close proximity to her house. She had beensexually assaulted and killed by an “unidentified person”, after whichthe body was thrown into the nala with the objective of destruction ofevidence of such assault.G

13. Significantly, none is suspected at this stage. The said FIRwas recorded by Police Officer - PW 11. The investigation consequentthereto was conducted by three people – PW 6, PW 12, and PW 13.

14. PW 6 (the 1[st] Investigating Officer) in the presence of PanchHWitnesses – PW 9 and PW 10, recovered the body of the prosecutrix and sent it for post-mortem, which was conducted by PW 4. ThisInvestigating Officer only conducted the spot search. His role ends here.

15. Thereafter, PW 12 (the 2[nd] Investigating Officer) based oncertain inputs (not disclosed), arrested the appellant from his workplaceon 13.6.2010 and searched his house in the presence of two independentwitnesses, namely, PW 5 and Piyush Ramesh Kumar Jain (not examined).The search resulted in recovery of certain incriminating articles vidememo Ext.35. The appellant was in no manner associated with sucha search.

16. Thereafter, further investigation was entrusted to PW 13 - theDeputy Commissioner of Police (the third Investigating Officer), who,on the basis of disclosure statement of the appellant, conducted the searchat two places, including the house of the appellant previously searchedon 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 theappellant to the crime, which stood established in DNA reports (Ext.85& 86) prepared by the forensic experts through scientific analysis. TheInvestigating Officer found tell-tale signs of the appellant in the shape ofstains of his semen, on the vaginal smear slide of the prosecutrix andblood stains of the prosecutrix on the banian (vest) of the appellant,linking the appellant to the crime. As such, on completion of theinvestigation, a challan was presented in the Court for trial.

17. In the aforesaid backdrop, we now proceed to examine thetestimonies of the witnesses as categorized above.

18. On oath, PW 1, (father of the prosecutrix) categorically admitsthat he had not expressed any doubt on any person for having causedthe death of his daughter. He expressly stated that “I had no doubt onany one about the death of my daughter”. He recognized the appellantwho, according to the said witness, lived in the same “chawl”. Histestimony is indicative of the fact that on the evening of 11.6.2010, hisdaughter (the prosecutrix), aged 6 years, after having dinner left home.Finding her not to have returned home, he searched for her and foundher to be dead, in a “gutter” near his house. Later on, he states that priorto 14.6.2010, he had not suspected the appellant of having committedthe crime. Significantly, the date and the basis leading to such suspicionis not disclosed by him.

19. Other aspects of his deposition, in particular, his statementwith respect to the recovery of the nicker shall be dealt with separately.He recognized the nicker (Article 10) to be that of his daughter.

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A20. PW 2, the mother of the prosecutrix, while corroborating thetestimony of her husband, added that till 14.6.2010 she was not awareas to who had assaulted and killed her daughter. However, in Court, shetestified to having given the appellant a match box, upon his request, inthe early hours of 12.6.2010.B21. PW 3, while corroborating the version of PW 1 and PW 2,only added that finding the prosecutrix not to have returned home, hethought that perhaps she had gone to the neighbour’s house to watchtelevision. On the morning of 12.6.2010, a neighbour - whom he doesnot name - informed PW 2 of the dead body of the prosecutrix lying in a“gutter”.C

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22. It is to be noted that none of the relatives have disclosedeither the complicity of the appellant in the crime or the reason for theirsuspicion towards him, particularly on 14.6.2010 which was two daysafter the incident.

23. The law on circumstantial evidence is well settled. When aDcase is governed by such evidence, the evidence must point singularly tothe guilt of the appellant, closing out the possibility of all other hypotheses.

24. The locus classicus on the subject is Sharad BirdhichandSarda v. State of Maharashtra[1]. A recent judgement of this CourtEauthored by one of us (Vikram Nath, J.) has highlighted the well settledlaw 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 noone has seen the commission of crime. The law in the case ofFcircumstantial evidence is well settled. The leading casebeing Sharad Birdhichand Sarda v. State of Maharashtra.According to it, the circumstances should be of a definite tendencyunerringly pointing towards the guilt of the accused; thecircumstances taken cumulatively should form a chain so completethat there is no escape from the conclusion that within all humanGprobability the crime was committed by the accused and theyshould be incapable of explanation on any hypothesis other thanthat of the guilt of the accused and inconsistent with his innocence.The said principle set out in the case of Sharad Birdhichand 1 (1984) 4 SCC 116

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Sarda (supra) has been consistently followed by this Court. In arecent case - Sailendra Rajdev Pasvan v. State of Gujarat,this Court observed that in a case of circumstantial evidence, lawpostulates two-fold requirements. Firstly, that every link in thechain of circumstances necessary to establish the guilt of theaccused must be established by the prosecution beyond reasonabledoubt and secondly, all the circumstances must be consistentpointing out only towards the guilt of the accused. We need notburden this judgment by referring to other judgments as the aboveprinciples have been consistently followed and approved by thisCourt time and again.”

25. To establish the guilt of the appellant, the prosecution reliesupon the following circumstances:

a)The appellant was residing in the same chawl as that of theprosecutrix; b)Appellant was found near the scene of the crime;

c)The appellant made disclosure statements, i.e., dated16.6.2010 Ext.47 and dated 17.6.2010 Ext.50, which led tothe recovery of incriminating articles vide Memo Nos. Ext.48and Ext.51. from the house of the appellant and anotherplace where he had hidden the clothes belonging to himand the prosecutrix; d)The DNA reports prepared on scientific analysis by anexpert, establishing the blood of the prosecutrix on banianof the appellant and his semen on the clothes of prosecutrixand her vaginal smear slide.

26. Let us examine whether all these circumstances standestablished by the prosecution or not.

Circumstance of 13 residing in the ‘chawl’ being seen atthe spot of the crime

27. PW 1 and PW 2 stated that the appellant resided in the verysame chawl as they, although they did not identify his house. Well, that’sabout all. There being no other evidence of he residing there. Even if theversion of the mother of having seen the appellant and giving him amatchbox, in the early hours of 12.6.2010, is believed, the same does notadvance the case of the prosecution any further. The appellant was not AB

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Afound at the place where the alleged crime took place or the place fromwhere the body was recovered. The prosecution has not been able toestablish the distance between the two places - that of the crime and theplace where the appellant was spotted in the morning hours. There is nospot map or any ocular evidence to this effect. As noted above, what ledthese witnesses to discover the appellant of having committed the crimeBhas gone unstated. It is only on the basis of the information furnished byPW 1, expressing his suspicion on the appellant, that he was on 13.6.2010arrested and the same day, his residence was searched. It is here thatthe major contradiction, if not falsity, in the prosecution case emerges.The Investigating Officer PW 12 is categorical of having suspected theCappellant only on the basis of the information furnished by the father ofthe prosecutrix, i.e., PW 1. PW 12 states that “the father of deceasedexpressed suspicion against the appellant and at the time of his housesearch was taken.” and PW 1 states that “He did not suspect anyoneprior 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 beDlocked, he called the medical analyzer, Mumbai, whereafter, he, bybreaking open the lock of the house of the appellant, recoveredincriminating articles vide Ext.36 on 13.6.2010 and such articles being:

“Article 1 – Square cardboard;

EArticle 2 – Blanket;

Article 3 – Floor tiles pieces;

Article 4 – Mat;

Article 5 –Towel;

FArticle 6 –Spanner;

Article 7 –Hair found on pillow;

Article 8 – Mat; and

Article 9 – Pillow”G28. Having conducted the search in the presence of PW 5 andPiyush Ramesh Kumar Jain (unexamined), he locked and sealed thehouse. Out of the two, the prosecution examined only one witness, namelyPW 5. Perusal of the testimony of this witness as also the InvestigatingOfficer and the relatives of the prosecutrix, does not establish one majorHfact, that being, who actually identified the house of the appellant.

29. A ‘chawl’ is a group of tenements clustered together, verysmall 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 certaintythe exact house/room of the appellant, a circumstance pointing to theguilt of the appellant. As is evident from the decisions referred (supra),for a circumstance to be established, there shouldn’t be doubt; it shouldnot leave room for the possibility that, not the appellant against whomthe circumstance is sought to be proved but someone else, may havedone the said crime.

30. None of the witnesses have deposed that it was at the instanceof the appellant that the prosecutrix left the house, nor has anyonedeposed to the effect of having seen the appellant and the prosecutrixtogether at any point in time; Appellant was not even a visitor to thehouse of PW 1. They have no relationship, be it of whatever nature. Allthat is stated is that after having dinner prosecutrix left home, and PW 3states that he thought she may have gone to the neighbour’s house towatch TV. With this being the case, last seen theory, does not come intoplay. Although argued before us, the Trial Court has correctly notconsidered the same to be a circumstance of consequence, in eitherdirection.

The Circumstance Disclosure Statement of the appellantand the Recovery of incriminating articles

31. Conjoint reading of the testimonies of PW 12 and PW 13further renders the prosecution case to be inherently improbable, if notself-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 disclosesuch fact. Undisputedly, both these witnesses together visited the allegedhouse of the appellant only once, i.e., on 13.6.2010. It is a matter ofrecord that police recovered only one nicker belonging to the prosecutrix,which was recovered at the time of the second search conducted on16.6.2010, which renders the recovery by PW 13 in the presence of PW9 to be extremely doubtful, specifically when the search and subsequentrecovery of incriminating articles is refuted.

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Arecovered during the first search. The Panchnama (Ext. 36) revealsthat 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 recoveryappear to have been completed before 2.00 p.m. to 2.30 p.m. by whichtime the witness had returned home. In fact, the factum of search itselfis in doubt as PW 5 categorically states that after conducting the searchBhe visited the police station where his “signatures” were obtained, though,he clarifies that earlier too his signatures were taken, but on what paperand for what purpose, he did not disclose.

34. We may now proceed to the testimony of PW 13, who is thestar witness of the prosecution, i.e., the Investigating Officer. AccordingCto his version, on 16.6.2010, the appellant, while in police custody, madea disclosure statement (Ext.47) in the presence of independent witnessesPW 7 and P.K Mehta (not examined). The statement revealed theappellant to have concealed the nicker of the prosecutrix as also hisclothes, worn by him at the time of incident, in his house, which he was Dready 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 sizenicker” and one “white colour nicker of amul gold 80 cm’s size banian”having blood stains and one “grey coloured barmuda” and one “brownEcolour nicker having contents written as Sophia 65 cm” and some bloodstains. The said articles were seized vide Memo Ext.48 in the presenceof the Panchas. On 17.6.2010 the appellant got recorded a seconddisclosure statement while in custody, whereby, he stated that someadditional clothes which he had worn on the day of the incident could be Fgot recovered. Accordingly, on the basis of such statement Ext.50 dated17.6.2010, the police party along with the appellant proceeded andsearched room No.206 in Deepshree Building at, approximately twokilometers from Valiv Naka. One Ganesh Bheema (Ganesh KapildevMishra) opened the door of the room and, as per the disclosure by theappellant, the police recovered certain incriminating articles vide MemoG(Ext.51) dated 17.6.2010.

36. All the articles recovered prior to 17.6.2010 were sent forscientific 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 alsosent a letter to the Civil Hospital for collection of the blood, nails, andHhair 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 theprosecutrix. He also recorded the statement of Munna Saroj, who wasresiding with the appellant. So is the essence of the examination-in-chiefof this witness.

37. It may be noted that neither this witness nor anyone else hasdeposed the fact of medical examination of the appellant, as is stipulatedunder Section 53A of the Code of Criminal Procedure (hereafter,‘Cr.P.C.’).

38. Further, whether his communication for medical examinationof the appellant was ever followed up at all is not known. So also, itsresultant consequences. Who took the samples of the body parts of theappellant, if at all, is a mystery. The record does not disclose such fact.Non-examination of Ganesh Bheema and Munna Saroj in Court, despitebeing cited witnesses renders his version to be uncorroborated, therebycreating a gap in chain of circumstances, preventing it from beingcomplete.

39. The house from where the articles were recovered on17.6.2010 was neither owned nor in the exclusive possession of theappellant. Instead, as is admitted by the Investigating Officer, it belongedto a third party. The Investigating Officer admits that the said house wasoccupied 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, hasnot seen the light of the day. Their complicity in the crime has also notbeen ruled out. On this issue examination of Ext.35 reveals that thehouse where appellant was residing was owned by Munna Lalchandand that it was jointly possessed by the appellant and Prakash who havenot been examined.

40. What further renders the veracity of the testimony of thiswitness to be questionable has surfaced in the cross-examination part,wherein he admits not to have mentioned in the statement Ext.47 “thatthe accused had hidden the clothes”. In this view of the matter, thearticles so discovered cannot be said to form a discovery in terms Section27 of the Evidence Act.

41. Significantly, from the testimony of PW 7 it is evident thatappellant did not know Marathi language for he states that “I know thatthe appellant does not know Marathi”.

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A42. Close examination of the testimony of Panch witness PW 8reveals that the appellant had given his statement in Hindi and not inMarathi.

43. Though, PW 13 is silent on this fact, but perusal of the saiddisclosure statements (Ext.47 & Ext.50) reveals the same to have beenBrecorded in Marathi and the Investigating Officer not having ever readover or explained contents thereof to the appellant in his vernacularlanguage. As a result thereof, certainty is absent as to the correctness ofthe statement as made and the statement, as recorded by the police.

44. A Constitution Bench of this Court, in Syed Qasim Razvi v.CState of Hyderabad[3], in the following extract observed that when thereis a lack of understanding of the language of the Court, it causes prejudiceto the appellant. The bench observed:

“9. …There is no doubt that ordinary court proceedings inHyderabad are conducted in Urdu, but Urdu is certainly not theDspoken language of even the majority of the people within theHyderabad State. If the accused in a particular case is notacquainted with the English language and if by reason of theabsence of adequate arrangements to have the proceedingsinterpreted to him in the language he understands, he is prejudicedin his trial, obviously it might be a ground which may be raised onEhis behalf in an appeal against his conviction. But in our opinioncannot be said that the provision in the Regulation relating toproceeding being conducted in English if the tribunal so desiresper se violates the equal protection clause in the Constitution.”

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45. In the case at hand, the aforementioned proposition of law issquarely applicable. From a perusal of material on record, we find thatthe Appellant did not know how to read and write in Marathi. This beingthe position, this Court has highlighted the importance of the appellantbeing able to understand the case of the prosecution against him. InabilityGto do so, by virtue of a language barrier causes prejudice to the case ofthe appellant. There is nothing on record to show that it was not practicableto record evidence of the appellant as well as others, whose vernacularwas 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 theH3 1953 SCR 589

record. Therefore, it is apparent that statutory safeguards in referenceto language have not been complied with, causing prejudice to the appellantin terms of Syed Qasim Rizvi (supra). Here only taking note of thedecision of this Court rendered in Siju Kurian v. State of Karnataka2023 SCC OnLine 429, we clarify the said decision to have beentaken, given the attending facts where the appellant was provided withthe assistance of interpreter and his disclosure statement leading todiscovery of a fact, unlike the instant case not linking the recovery to theappellant with the crime.

46. Further, PW 1 has stated that the key of the room, aftereffecting recovery on 16.6.2010, was given to the “room partner of theaccused”. Who is this room partner? Was he examined? Was he awareof the clothes being hidden? Did he hide the clothes? Was his complicityin the crime ruled out? Are all questions left to be guessed. Such roompartner remains unexamined and his complicity and role in the crime notexplored.

47. Version of the Investigating Officer, that it was PW 12 wholocked the room, does not inspire confidence. The witness does notremember having placed on record any document indicating that thelock was labelled and sealed for the search being conducted at the firstinstance. It may be noted that in the memos as well, he admits not tohave mentioned where exactly the appellant had kept clothes in the room.

48. On the issue of first disclosure statement Ext.47, we find theversion of PW 13 to be materially contradicted by the Panch witnessPW 7, who, in no uncertain terms and unrefutedly, has deposed that“Devraj asked me that the clothes were hidden in the appellant’s houseand as to whether I was ready to act as a panch.” (here PW 13 – theInvestigating Officer is referred to as Devraj). This totally shatters theprosecution case on the point of recovery pursuant to the allegeddisclosure statement.

49. Even on the point of recovery of the nicker of the prosecutrixthere is contradiction with regard to its place and numbers. We noticethat the dead body was recovered in the presence of two independentwitnesses, namely, PW 9 and PW 10. Significantly, PW 9 states that on12.6.2010 the dead body of the prosecutrix was recovered from the nalaand that “one nicker was lying on a tin shade. One blood smeared banianwas lying on the roof”. He further adds that after recovery, the deadbody was brought home. “She was raped” (here reference is of the A

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Aprosecutrix) and that “blood had come out from the private part of thegirl”. He does not state that tin shade was that of the house of theappellant. However, PW 1 has deposed that “The knicker of my daughterwas found on the roof of the accused.” But this is in completecontradiction to the statement of PW 13 who stated that the nicker andthe banian were recovered pursuant to the disclosure statement of theBappellant. On this issue, further contradiction emerges through thetestimony of PW 10 who states that “there were no clothes on herperson” but in the very next breath adds that “she had worn underwearon her person”, and also that “he had not seen the body of the deceasedgirl”. Also, PW 10 states that he cannot read or write in Marathi andCthat he affixed his signatures on Ext.43 at the police station which is inMarathi. Hence, what is the truth and whom to believe is difficult toinfer from the record.

Circumstance of Scientific Examination, in particular DNAReport of the Scientific Officer D50. We may examine the case from yet another angle and thatbeing, as to whether, even if the recovery on the search conducted on13.6.2010, 16.6.2010 and 17.6.2010 is believed to be so, either on thebasis of information obtained from the police during investigation or as aconsequence of statement made by the appellant or any other materialEobtained by the police during the course of investigation, the same standslinked to the appellant or not.

51. We find on this count the prosecution has not sufficiently proventhe case. This is for two reasons : (1) If the alleged house of the appellantwas thoroughly searched on 13.6.2010, as is evident from memo Ext.35Fand recovery memo Ext.36, then the question of recovery of articles on16.6.2010 should not arise. The house is nothing but a small room of 8.5feet x 6.5. feet (out of which a bathroom was 2.5 feet x 2.5 feet), as isevident from Ext.35. The police party in the absence of appellant hadmicroscopically scanned the said room, and yet could not find any materialallegedly recovered on 16.6.2010 vide memo Ext.48; (2) Even theGrecovered articles, be it of the search conducted on 13.6.2010, 16.6.2010and 17.6.2010, do not sufficiently link the appellant to the crime. Forelaboration, we extract herein in a tabular form, the articles recovered,numbered, accepted and the scientific evaluation thereof.

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172SUPREME COURT REPORTS[2023] 8 S.C.R.ABCDEFGH

52. From the aforesaid chart, it is evident that no blood of theappellant was found on any one of the articles recovered by the police.Only stains of semen were found on the nicker (brown) belonging to theprosecutrix and her vaginal swabs.

53. To establish clinching evidence against the appellant, theprosecution seeks reliance on communication dated 16.6.2010 wherebyPW 13 sent certain articles for analysis to the Director, ForensicLaboratory, Maharashtra. In terms of the aforesaid, the articles, be thatof the appellant or that of the prosecutrix recovered on 12[th], 13[th] and14[th] of June, 2010, are as follows :

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54. Perusal of these documents reveals that samples of the bloodand semen of the appellant were sent for forensic analysis. ImportantlyDthough, there is nothing on record to establish as to who took suchsamples, on what date, on how many occasions and why were they notsent all at once, we notice that none of the police officials have testifiedto the formalities of keeping the samples safe and secure being compliedwith.

E55. The first alleged blood sample of the appellant collected on14.6.2010 was sent for analysis vide communication dated 16.6.2010(Ext.60). The second alleged blood sample of the appellant taken on20.7.2010 was sent the very same day vide communication (Ext.72).

56. There is only one document (Ext.79) on record, indicating theFappellant to have been medically examined. But even this documentdoes not reveal sample of the body part being drawn. In any event, thedoctor who conducted such examination, has not stepped into the witnessbox to testify the correctness of the contents thereof. Also the documentitself is uninspiring confidence as we notice certain interpolations thereinGand in a different hand. Additionally, the document does not fall true tothe 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, 4 (2011) 7 SCC 130H

which later on was clarified in Rajendra Prahladrao Wasnik v. Stateof Maharashtra[5](three-Judges) that the said provision is not mandatoryin nature. It was observed that it only requires a positive call to be takenin respect of the need to follow the provision or not. The bench held- “49…There must be reasonable grounds for believing that theexamination of a person will afford evidence as to the commissionof an offence of rape or an attempt to commit rape. If reasonablegrounds exist, then a medical examination as postulated by Section53-A(2) CrPC must be conducted and that includes examinationof the accused and description of material taken from the personof the accused for DNA profiling…”

58. Here, a child of the tender age of six was assaulted brutallyand killed. The appellant was arrested on suspicion of having committedthe crime. The police proceeded in accordance therewith and weresupposed to have made discoveries as per the statements made by theappellant in custody, then in what manner can it be said that, at the timewhen such a positive call was required to be made by the authorities,reasonable grounds did not exist for the compliance with Section 53A tobe a must? This, in the view of this Court is a glaring lapse in theinvestigation of this crime, for a six-year-old child was sexually assaultedon both of the private parts of her body. Medical examination of theappellant would have resulted into ascertainment of such assault.

59. As has been hitherto observed, there is no clarity of who tookthe samples of the appellant. In any event, record reveals that one set ofsamples taken on 14.6.2010 were sent for chemical analysis on 16.6.2010and the second sample taken, a month later on 20.7.2010 is sent the verysame day. Why there exist these differing degrees of promptitude inrespect of similar, if not the same- natured scientific evidence, isunexplained.

60. We may observe that the Maharashtra Police Manual[6], whenspeaking of the integrity of scientific evidence in Appendix XXIV states- “The integrity of exhibits and control samples must be safeguardedfrom the moment of seizure upto the completion of examination in the laboratory. This is best done by immediately packing, sealing 5 (2019) 12 SCC 460

6 Available here-https://www.mahapolice.gov.in/uploads/acts_rules/MumbaiPoliceManualPartIII.pdf AB

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Aand labeling and to prove the continuity of the integrity of thesamples, the messenger or bearer will have to testify in Court thatwhat he had received was sealed and delivered in the samecondition in the laboratory. The laboratory must certify that theyhave compared the seals and found them to be correct. Articlesshould always be kept apart from one another after packing themBseparately and contact be scrupulously avoided in transport also.”

61. In the present case, the delay in sending the samples isunexplained and therefore, the possibility of contamination and theconcomitant prospect of diminishment in value cannot be reasonablyruled out. On the need for expedition in ensuring that samples whenCcollected are sent to the concerned laboratory as soon as possible, wemay refer to “Guidelines for collection, storage and transportation ofCrime Scene DNA samples For Investigating Officers- Central ForensicScience Laboratory Directorate Of Forensic Sciences Services MinistryOf Home Affairs, Govt. of India”[7] which in particular reference to bloodand semen, irrespective of its form, i.e. liquid or dry (crust/stain or spatter)Drecords the sample so taken “Must be submitted in the laboratory withoutany delay.”

62. The document also lays emphasis on the ‘chain of custody’being maintained. Chain of custody implies that right from the time oftaking of the sample, to the time its role in the investigation and processesEsubsequent, is complete, each person handling said piece of evidencemust duly be acknowledged in the documentation, so as to ensure thatthe integrity is uncompromised. It is recommended that a document beduly maintained cataloguing the custody. A chain of custody documentin other words is a document, “which should include name or initials ofthe individual collecting the evidence, each person or entity subsequentlyFhaving custody of it, dated the items were collected or transferred, agencyand case number, victim’s or suspect’s name and the brief description ofthe item.”

63. Indisputably, these “without any delay” and “chain of custody”aspects which are indispensable to the vitality of such evidence, werenot complied with. In such a situation, this court cannot hold the DNAGReport Ext.85 to be so dependable as to send someone to the gallows onthis basis. We have carefully perused FSL as well as DNA report formingpart of the record. A snapshot of the said reports, in a tabulated formatis presented as under :7 Available at- http://cfslchandigarh.gov.in/Uploads/Media/OriginalH20180627121024_IO-SOP%20Final.pdf

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A For ready reference the extract of the DNA analysis Ext. isreproduced as under.

“Interpretation

1. The DNA profile of blood detected on ex16 Card board, ex 17Blanket, ex 18 two pieces of tile, ex 20 Towel, ex 24 piece ofBcloth from pillow, and blood detected on ex 1 knicker of victimSayunmbano M.A. Shaikh, ex 3 sandow baniyan of accusedPrakash Zinak Nishad of F.S.L.M.L. Case No. DNA 315/10 andex 1 blood sample of victim Sayunmbano M.A. Shaikh is identical& from one and same source of female origin. DNA profilesCmatch with the maternal and paternal alleles in the source of blood.

2. The DNA profile of blood detected on ex 16 Card board, ex 17Blanket, ex 18 two pieces of tile, ex 20 Towel, ex 24 piece ofcloth from pillow, ex1 blood sample of victim Sayunmbano M.A.Shaikh and blood defected on ex 1 knicker of victim SayunmbanoDM.A. Shaikh, ex 3 sandow baniyan of accused Prakash ZinakNishad of F.S.L.M.L. Case No.DNA 315/10 and blood sample ofPrakash Zinak Nishad F.S.L.M.L. Case No. DNA 366/10 is fromone and same source. DNA profiles did not match with hematernal and paternal alleles in the source of blood.

E3. Control DNA profile of unknown person is obtained from ex 22One hair.”

E3. Control DNA profile of unknown person is obtained from ex 22One hair.”

64. Even otherwise, on the value of DNA evidence, we may referto an observation made by this Court, in Pattu Rajan v. State of T.N.[8],as under;F“52. Like all other opinion evidence, the probative value accorded F“52. Like all other opinion evidence, the probative value accordedto DNA evidence also varies from case to case, depending on thefacts and circumstances and the weight accorded to other evidenceon record, whether contrary or corroborative. This is all the moreimportant to remember, given that even though the accuracy ofDNA evidence may be increasing with the advancement of scienceGand technology with every passing day, thereby making it moreand more reliable, we have not yet reached a juncture where itmay be said to be infallible.Thus, it cannot be said that the absenceof DNA evidence would lead to an adverse inference against a 8 (2019) 4 SCC 771H

party, especially in the presence of other cogent and reliableevidence 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 thepast, where the guilt of an accused was sought to be established.Notably, the reliance was to corroborate. This Court highlightedthe need to ensure quality in the testing and eliminate the possibilityof contamination of evidence; it also held that being an opinion,the probative value of such evidence has to vary from case tocase.”

66. In the present case, even though, the DNA evidence by wayof a report was present, its reliability is not infallible, especially not so inlight of the fact that the uncompromised nature of such evidence cannotbe established; and other that cogent evidence as can be seen from ourdiscussion above, is absent almost in its entirety.

67. Unfortunately, the courts below did not go into all the aforesaidaspects and presumptuously assumed the guilt of the appellant and heldhim to have committed the crime.

68. What prevailed upon the courts below, it appears, was thetestimony of the doctor PW 4 - Dr. Anjali Pimple, who conducted thepost-mortem and, “the clinching medical evidence” and “clinching DNAreport”. It is on the basis of the said medical evidence that the courts,without recording any findings with regard to the circumstances beingunrefuted, convicted the appellant despite there being contradictions,material in nature, belying the prosecution case and the veracity of thestatement of witnesses, so also impeaching their credibility.

69. Further, what weighed with the courts below is more so evidentfrom the findings returned by the High Court, i.e., nature of the allegedcrime being indeed one of the heart-breaking, horrific and most depravedkind, prompting the confirmation of the death sentence awarded by theTrial Court, considering the case to be the rarest of rare.

70. It is true that the unfortunate incident did take place, and theprosecutrix sustained multiple injuries on her body and surely must have 9 (2023) 2 SCC 353

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Asuffered great pain, agony, and trauma. At the tender age of 6, a life forwhich much was in store in the future was terrifyingly destroyed andextinguished. The parents of the prosecutrix suffered an unfathomableloss; a wound for which there is no remedy.

71. Despite such painful realities being part of this case, we cannotBhold within law, the prosecution to have undergone all necessary lengthsand efforts to take the steps necessary for driving home the guilt of theappellant and that of none else in the crime.

72. There are, in fact, yawning gaps in the chain of circumstancesrendering it far from being established- pointing to the guilt of theCappellant.

73. As already pointed out, there are several irregularities andillegalities on the part of the agencies examining the case.

74. The questions raised in the instant appeals are answeredaccordingly.D

75. Before parting with the matter, we must take note of the mannerin which the investigation into this dastardly crime was undertaken.Numerous lapses blot the entire map. We have already pointed out multipleinstances which have led to the chain of circumstances remaining broken,the larger picture emerging therefrom being that the person, whomsoeverEthey may have been, remains unpunished to this day.

76. Both the crimes committed against the innocent six-year-oldchild, 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 theduty upon the investigating authorities not only to protect the citizens ofFthe country, but also ensure fair and proper investigations into crimesaffecting 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 dutyto take all possible steps within the letter of the law to bring the doers ofsuch acts to the book.G77. In the instant case, the reasons why the investigation officers G77. In the instant case, the reasons why the investigation officerswere 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 reasonstands given for having decided that there was no need to comply withthe provisions of Section 53A, Cr.P.C.; there is unexplained delay insending the samples collected for analysis; a premises already searchedH

was searched again, the reason for which is not borne from record; lockpanchnama is not prepared; no samples of blood and semen of theappellant can be said to have been drawn by any medical or para medicalstaff; allegedly an additional sample is taken from the appellant morethan a month after the arrest; alleged disclosure statement of the appellantwas never read over and explained to the appellant in his vernacularlanguage; the appellant was not residing alone at the place alleged to behis residence; and what was the basis of appellant being a suspect at thefirst instance, remains a mystery; persons who may have shed light onessential aspects- Ganesh Bheema and Munna Saroj went unexaminedetc., such multitudinous lapses have compromised the quest to punishthe doer of such a barbaric act in absolute peril.

78. The charges mentioned above, although serious and grievousin nature, cannot be said to have been met against the present appellant.The factum of the commission of the crime against the six-year-oldinnocent child is not in dispute and cannot be deprecated enough even inthe most severe terms. However, as the above discussion has laid outclearly, the circumstances forming the chain of commission of this crimecannot and do not point conclusively to the appellant in a manner that hemay be punished for the same much less, with the sentence of being putto death.

79. In view of the above the charges levied on the appellant standnot proved.

80. This court, recently, in Maghavendra Pratap Singh @PankajSingh v. State of Chattisgarh[10] had emphasised the role andresponsibilities of the investigating authorities by referring to variousjudgments of this Court. Such principles, which are essential to successfulinvestigations, were not adhered to. Needless to state, such responsibilitieswould be all the more heightened in cases of crimes involving severepunishments such as imprisonment for life or the sentence of death.Considering the nature of the case, the police ought to have, even morethan 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, passedby District Judge-2 and Additional Sessions Judge, Thane as affirmed AB

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Aby the High Court vide judgment dated 13th & 14th October, 2015 inConfirmation Case No.4/2014 titled as State of Maharashtra v. PrakashNishad @ Kewat Zinak Nishad and Criminal Appeal No.88/2015 titledas Prakash Nishad @ Kewat Zinak Nishad Vs. State of Maharashtra,respectively, convicting the appellant under Sections 302, 376, 377 and201 IPC and sentencing him to death and life imprisonment and otherBpunishments described above, are quashed and set aside.

82. The appellant be set at liberty forthwith, if not required in anyother case. Pending applications, if any, are also disposed of.

CDivya Pandey(Assisted by : Shevali Monga, LCRA)

Appeals allowed.

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