New Delhi: The absence of nail samples of evidentiary value, missing records of the victim’s dress, and other such crucial evidence, led to the Madhya Pradesh high court overturning the death penalty awarded to a 35-year-old by a special session’s court, and acquitting him, in the case of alleged sexual assault and murder of a minor in 2018.
While acquitting the accused — identified in the court order as Vijay Pintiya — last week, the MP High Court observed that the he was acquitted “by giving him the benefit of doubt”.
The high court also observed the failure of the special sessions court in Burhanpur, in satisfying the requirements of Section 313 of the Code of Criminal Procedure (CrPc), by giving the accused no opportunity to explain any of the circumstances appearing in evidence against him.
“We hope and trust that henceforth sufficient care and caution will be taken by the Courts while interacting with the accused under Section 313 of Cr.Pc. It must be remembered that courts are to dispense justice, not to dispense with justice,” the court observed. ThePrnt has a copy of the high court judgment.
Section 313 of the CrPc states that in every inquiry or trial, the court may at any stage put such questions to the accused as it deems fit to enable him to explain any circumstances appearing in the evidence against him.
Justices Sujoy Paul and Achal Kumar Paliwal of the Jabalpur bench of MP high court in their order on 21 June, remarked, “It needs to be remembered that the words ‘life’ and ‘file’ contain the same letters. Every ‘file’ has a relation with ‘life’. Thus, every file needs to be handled with utmost care, caution and sensitivity.”
Giving its observation on the sexual assault of the minor, the high court observed, “A conjoint reading of P.M. [post mortem] report and DNA report shows that prosecution could not establish that victim was subjected to any sexual assault. Thus, we are unable to countenance the finding relating to commission of rape/sexual assault mentioned in the impugned judgment. The said finding deserves to be jettisoned.”
According to the details of the case as mentioned in the HC judgment, the minor — a three-year-old — had stepped outside her house in Mohad village of Madhya Pradesh’s Burhanpur district, with her grandmother on 18 August, 2018, to relieve herself, when she went missing.
While initially a missing case was registered, sections 366A (act endangering life or personal safety of others), 376(2)(m) (punishment for rape), 376AB (punishment for rape of a woman below 12 years of age), 302 (punishment for murder) and 201 (causing disappearance of evidence of offence or giving false information to screen offender) of Indian Penal Code (IPC) and relevant sections of the Protection of Children from Sexual Offenses (POCSO) Act were added to the complaint when her body was found after three days.
Five days later on 23 August, 2018, police arrested Pintiya, who lived next door to the victim.
The prosecution’s statement, mentioned in the judgment, suggests that according to police, Vijay allured the victim by offering her a chocolate and took her to his “bada (room)”, where he allegedly sexually assaulted the minor and murdered her. Later that night, he allegedly threw away the victim’s body, where it was found three days later on 18 August, 2018.
The judgment adds that according to police, Vijay then went to a village Bada Bagoda in Maharashtra and met with a person identified as Narmada Das Bairagi Baba, to get some “tantrik solution” to the crime he had committed.
For evidence, the prosecution relied upon the accused’s memorandum statement recorded under Section 27 of the Evidence Act, an extra-judicial confession of the accused before Narmada Das Bairagi, DNA reports and the accused’s past conduct.
According to the court order, during investigation in the case it was alleged by some that Vijay had had unnatural sex with a buffalo and that he had been married twice, but both marriages were unsuccessful. These allegations were, however, dismissed as hearsay as no case was ever registered against him and so no criminal record was mentioned.
The order also made a mention of bruises found on the accused’s cheek and forehead at the time of arrest. When a doctor’s report suggested that the bruises could be scratches made by the victim’s nails, the minor’s body was exhumed to collect nail samples, which were then sent to the forensic science laboratory (FSL).
Speaking to The Print, Ajay Gupta who had been the amicus curiae in the case said, “In this case, the police was informed within an hour of the girl going missing. The police reached in an hour, but even then they could not find the body of the girl for three days. It was later found in the same village by a few passers-by. The police is expected to conduct a search with a fine comb, but leave alone doing that, the police lost all crucial evidence even after finding the body.”
Also read: How a 15-yr-old spent 5 yrs on death row for rape-murder before being released by Supreme Court
Gaps in the probe?
The MP High Court while acquitting the accused observed, “The nail samples of victim were not collected at the first instance and when the same were collected after a few days by digging out her body which was buried, it must have lost much of its evidentiary value.”
When asked by ThePrint why the nail samples were not collected after the body was found, the then investigating officer Girdhar Singh said, “We had written to the doctors to take all the necessary samples of the child for further investigations of the crime, but sometimes they fail to get it done. We later on sought SDM’s [sub divisional magistrate’s] permission and exhumed the body and collected it.”
The court order also mentioned the police’s failure to place on record photographs of a “frock” recovered about 15-45 meters away from where the body was found.
While the body was naked when it was found, a piece of cloth was found near the body, which according to police was the frock she had been wearing. The order mentioned that a DNA report confirmed the accused’s DNA was found on the cloth, but the police failed to place on record any photo of the dress to prove beyond any reasonable doubt that it was what the minor has been wearing at the time of her disappearance.
According to the court order, the list of exhibits mentioned it as a “white frock with black dots”, but the minor’s grandfather deposed it was a blue frock with black spots, while another witness, the police photographer, claimed the frock found near the victim was a white frock with no black spots. The investigating officer, Girdhar Singh, during his cross-examination, claimed the frock did not have any black spots, nor did he notice any blood strains on it.
“In view of aforesaid depositions, it is clear that the witnesses were not consistent regarding description/identity of the frock. The photograph of the frock is not placed before the court below (the special sessions court). The court below has not taken pains to give any finding about non-availability of any such photograph. In view of variance/contradiction in the statements of aforesaid witnesses relating to description of frock, we are unable to hold that prosecution could establish the identity of victim’s frock with necessary clarity. Thus, it is not clear as to whether it was the victim’s frock which was subject matter of DNA examination. This is a very serious flaw on the part of the investigating agency. The investigation was made in a very casual manner and we deprecate the same,” observed the Madhya Pradesh High Court.
The court also pointed out that the special sessions court had not confronted the accused with the DNA report during his examination under Section 313 of the CrPc to find why his DNA was found on the dress, and thus it could not be used against him.
The order mentioned that the police recorded a statement by Narmada Das Bairagi which was treated to be Vijay’s extrajudicial confession.
However, the court observed, “The confession relating to commission of crime (if any) made in a memorandum under Section 27 of the Evidence Act cannot be used against the accused is an elementary principle. We are surprised that a Senior Sessions Judge has taken a diametrically opposite view in the impugned judgment on this fundamental/elementary aspect. Thus, findings in this regard contained in the impugned judgment cannot be upheld.”
MP High Court also noted that nowhere did the prosecution point out that Vijay was last seen with the victim and the police too had failed to recover any incriminating material from his house.
Investigating officer Girdhar Singh said told the court, however, “We tried our level best in getting as many witnesses as we could. Our lady constable through her investigation had found that the accused had been seen on the same road as the victim. It is unfortunate that the court found the investigation not enough. Looking at the sensitivity of the case, there was a team constituted that had meticulously undertaken the work.”
Amicus Curiae, Ajay Gupta further added, “In most of the cases investigations done by the district police, never stands the test of court. The DGP should take cognisance of the shabby investigations carried out by the police and train them appropriately on how the search needs to be conducted to preserve evidence. One’s heart goes out to the family of the child in such cases.”
(Edited by Poulomi Banerjee)