Improper investigation can not result in conviction

Prosecution for rape and murder:

The case of the prosecution is that the accused had some liquor at the spot from liquor bottles and from a handi. Empty liquor bottles, a handi and some glasses were seized from the scene of crime. There is no DNA or finger prints on the glass and liquor bottles to connect the accused with the crime. In fact, PW20 – IO has admitted that the finger print report did not implicate the accused. At this stage, it is required to be noted that the accused’ DNA samples were collected during the investigation and in fact were sent for DNA analysis, but the prosecution never presented the report to the Court. No pubic hair, DNA, semen or blood of the accused were found on any of the victims. It appears that the samples were collected from the accused and were sent for analysis, but the result did not incriminate the accused.

As per the case of the prosecution, Rs.3,000/- in cash were taken from Trambak, a mangalsutra, dorley and ear tops were taken from PW8; anklets and ear tops were taken from Savita; and a watch and chain were taken from PW1 by the culprits. However, no stolen property has been found or recovered from any of the accused except a broken white metal chain which was seized during the house search of the mother of A5 on 26.06.2003. However, her signature is not there on the panchnama. The panchnama also does not state that the seized property was sealed. The chain was described as “one white metal chain with 30 links, middle link is broken and tied with a string. The value of the same was stated to be zero”. The chain had no special markings on it and the same is freely available. Though the prosecution claimed that the said chain belongs to PW1, PW1 had admitted that he has not given any description of the chain to the police. Barring this chain, nothing was seized or recovered from any of the accused. Therefore, the seizure of a commonly available white metal silver chain without any distinctive markings would be a weak piece of evidence to hold the accused guilty.

Apart from the above, on considering the entire deposition of PW8, we are of the opinion that PW8 who claims to be an eye witness, she is not a reliable and trustworthiness witness. Her entire testimony in Court is full of material omissions/contradictions/improvements. Prior to her deposition in Court, her two statements dated 6.6.2003 and 7.6.2003 were recorded by the police and the magistrate respectively. The entire description of incident given by PW8 in the Court has not been stated by her in her earlier statements. This evidence has come for the first time during the deposition in Court by way of an improvement. In her earlier statements, PW8 has never given any details of the assault or the roles played by different persons during the incident. Even in the TI parade, she did not attribute any role to the persons she identified. The first time PW8 gave any details about the incident or ascribed the roles to the accused persons was two and a half years later in the Court and never before that. Her failure to give any statement to the police and the two magistrates either about the events occurring during the incident or the roles played by different persons render her evidence unreliable. When in her cross-examination, she was confronted with such omissions/improvements, she has taken only one thing that she told this to the police but she does not know why the police did not record the same. However, the same is not corroborated by any other evidence, more particularly the deposition of the IO and/or the magistrates. Therefore, it is unsafe to rely upon the deposition of PW8 and to convict the accused. It is also required to be noted that even according to PW8, she was subjected to rape, however, the prosecution has miserably failed to prove the rape on her by leading cogent evidence, more particularly the forensic evidence. Therefore, to that extent also she is not reliable.

There is one another reason why PW8 is not to be believed on the ground that she is unreliable and not trustworthy. It is required to be noted that on 7.6.2003, i.e, two days after the incident, her statement was recorded by PW13 – Ramesh Sonawane – Special Executive Magistrate in the hospital. PW13 was called by the investigating officer to record her dying declaration. It has come on record that her dying declaration/statement was recorded on 7.6.2003, i.e., two days after the incident, PW8 identified photographs of four people from album of notorious criminals as those who committed the offence. Admittedly, the present accused are not amongst those four persons identified by PW8 from the photo album. It is required to be noted that in her deposition she had not stated anything about her statement recorded by PW13 on 7.6.2003 and she identified the photographs of four people from album of notorious criminals shown to her. Therefore, to that extent, there is also a suppression of material fact by PW8. In fact, the aforesaid was withheld by the prosecution during the trial. Only during hearing of the appeal before the High Court, it came to the light and therefore pursuant to the order passed by the High Court she was recalled and when she was confronted with the above, very surprisingly, she stated that four persons who were identified by her were the same persons out of the present accused. However, such a stand is just contrary to the deposition of PW13 – special executive magistrate.

Truthful investigation:

It has to be uppermost kept in mind that impartial and truthful investigation is imperative. It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 & 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of investigation is ultimately to search for truth and to bring the offender to book.

Apart from ensuring that the offences do not go unpunished, it is the duty of the prosecution to ensure fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the court for just determination of the truth so that due justice prevails. It is the responsibility of the investigating agency to ensure that every investigation is fair and does not erode the freedom of an individual, except in accordance with law. One of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Cr.PC.

Human rights of accused:

Nothing is allowed by the law which is contrary to the truth. In Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudences of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human rights at a much higher pedestal and the accused is presumed to be innocent till proven guilty. The alleged accused is entitled to fair and true investigation and fair trial and the prosecution is expected to play a balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the Constitutional mandate contained in Articles 20 and 21 of the Constitution of India.

Even in a case where the public prosecutor did not examine the witnesses who might have supported the accused, this Court in the case of Darya Singh v. State of Punjab AIR 1965 SC 328 has observed that the prosecution must act fairly and honestly and must never adopt the device of keeping back from the Court only because the evidence is likely to go against the prosecution case. It is further observed that it is the duty of the prosecution to assist the court in reaching to a proper conclusion in regard the case which is brought before it for trial. It is further observed that it is no doubt open to the prosecutor not to examine witnesses who, in his opinion, have not witnessed the incident, but, normally he ought to have examined all the eye-witnesses in support of his case. It is further observed that it may be that if a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness box. It is further observed that if at the trial it is shown that the persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the accused and may, in a proper case, record the failure of the prosecution to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case.

Murder and rape is indeed a reprehensive act and every perpetrator should be punished expeditiously, severely and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt.

The prosecution/investigating agency is expected to act in an honest and fair manner without hiding anything from the accused as well as the Courts, which may go against the prosecution. Their ultimate aim should not be to get conviction by hook or crook.

Compensation for wrongful prosecution:

There is no investigation at all qua the four persons who were identified by PW8 on 7.6.2003. On the contrary, the accused in the present case were nomadic tribes and falsely implicated and are roped in. Except one, all of them are in jail since last 16 years. All were facing the hanging sword of death penalty. Out of six accused persons, one was subsequently found to be a juvenile. As per the report of Dr. Ashit Sheth, a Psychiatrist, who examined one of the accused – Ankush Maruti Shinde, who was subsequently found to be a juvenile, he has clearly opined that he has lived under sub-human conditions for several years. He was kept in isolation in solitary confinement with very restricted human contact and under perpetual fear of death. He was only allowed to meet his mother, and that too only infrequently. He was not even allowed to mix with other prisoners. Therefore, all the accused remained under constant stress and in the perpetual fear of death. As they were facing the death penalty, they might not have availed any other facilities of parole, furlon etc. All of them who were between the age of 25-30 years (and one of the accused was a juvenile) have lost their valuable years of their life in jail. Their family members have also suffered. Therefore, in the facts and circumstances of the case, and in exercise of our powers under Article 142 of the Constitution of India, we direct the State of Maharashtra to pay a sum of Rs.5,00,000/- to each of the accused by way of compensation, to be deposited by the State with the learned Sessions Court within a period of four weeks from today and on such deposit, the same be paid to the concerned accused on proper identification. The learned Sessions Court is directed to see that the said amount shall be used for their rehabilitation. At the cost of the repetition, it is observed that the aforesaid compensation is awarded to the accused and in the peculiar facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India.

[Source: Ankush Maruti Shinde . vs State Of Maharashtra decided by SC on 5 March, 2019]
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