The Aurangabad Bench also directed the Maharashtra Prosecution Directorate to initiate action against those responsible for significant evidence such as loss of the nylon string and failure to receive the report from the forensics laboratory.
In a POCSO case, the Aurangabad Bench of Bombay High Court recently acquitted a death row convict, except for the “insensitive way” in which the prosecution investigated the crime, gathered evidence, and conducted trial proceedings (State of Maharashtra v. Vishnu Gore).
The convict accused of raping a 5-year-old girl and strangling her to death was granted the benefit of doubt by the Bench of Justices Ravindra V Ghuge and BU Debadwar.
We do not fail to observe that we are indeed troubled by the extent in which the state has prosecuted the crime, gathered evidence, and carried out the trial in the most disrespectful way,” said the Court.”
The Directorate of Prosecution, Maharashtra, have released orders to take proceedings against those responsible for the destruction of material evidence and the non-examination of material witnesses.
It also expressed surprise at the way in which the Judge of the Supplementary Sessions resolved the case overlooking the lack of relevant evidence.
We are equally shocked at the way in which Gangakhed, Dist. Parbhani, the learned Additional Sessions Judge (Extra Judge), has agreed on Special Sessions (POCSO). We find that, when drawing its findings, the learned Judge resorted to parts of the examination-in-chief of defence witnesses and ignored their cross-examination,’ the Court observed.
The Court heard the confirmation case brought by the Special Court on the Protection of Children from Sexual Offences (POCSO) Act cases, along with the Special Court’s appeal brought by the complainant Vishnu Gore against his prisoner.
The factual matrix of the prosecution’s argument was that the Shelgaon police were contacted by the grandparents of the 5-year-old victim after she went missing and a First Information Report was filed (FIR). They stumbled across the dead body of a young girl swimming in a well during the FIR investigation.
It was found after completing the post-mortem of the corpse that the victim had been assaulted and later strangulated to death.
At the end of Gore’s conviction, the Special Court granted the penalty of hanging by the neck till dead for committing offences punishable under the Indian Penal Code under Sections 376A (causing death after rape), 302 (murder) and 201 (causing evidence to disappear) along with Sections 5 and 6 (aggravated penetrative sexual assault) of the POCSO Act.
The High Court set aside the order on the basis that the Special Judge had refused to acknowledge that the prosecutors had not given ample facts on record that could have proven beyond reasonable doubt that the crime was committed by Gore.
The High Court investigated facts which, according to the Special Court, led to the decision that it was Gore who had perpetrated the murder, having found that the victim had indeed been raped and her death was homicidal.
The Court relied on the victim’s uncle’s admission to the Investigation Officer that debunked the prosecution’s last seen alive argument. According to the uncle’s assertion, the woman was last seen alive with the uncle at 3.30 pm, as opposed to the prosecution’s argument that she was last seen with the accused at 1.30 pm.
The Court then continued to examine the incriminating facts relied on in the trial court by the defence. The prosecutors identified a piece of nylon string rope retrieved from the deceased victim’s neck and an allegedly identical rope recovered from Gore’s home.
The Court acknowledged that they did not have the experience required to compare the fibres on both ropes and that there was a missing piece of string that was absent from the evidence.
The prosecution also claimed to have retrieved a lungi that was used to bind the deceased’s body, which reportedly belonged to the accused’s father.
The Court considered whether, in the absence of corroboration, the perpetrator could be tried on the grounds of lungi.
The police used sniffer dogs from the area where the body was located, which took the police close to Gore’s home.
“In the absence of corroborative proof, we do not believe this element to be a link in the chain of circumstantial evidence leading towards the accused’s guilt.”
The Court ruled that such items of evidence, such as the half-burnt piece of quilt retrieved from Gore’s home, were also useless evidence because it was found incriminating to have neither semen nor blood stains.
The Court finally listened to the other testimony, considering Gore’s actions, which claimed that Gore appeared scared and subdued and his behavior seemed peculiar. It did not, however, encourage faith to convict him of having committed the crime.
We do not have in front of us such evidence that will reassure us that it was this defendant and no other person that may be said to have committed the crime. In the stages of (a) last seen alive together, (b) sniffer puppy, (c) lungi and (d) nylon cord, the chain of circumstantial evidence is broken. If both ties were able to stay together to complete the chain of circumstantial facts, the defendant may not have been held guilty.
Shri, the learned Prosecutor. S. D. Ghayal deserves compliments for the tremendous efforts he has made and the way in which the facts of the case before us have been marshalled. It is unfortunate that such hard work is met with an acquittal order in our unfortunate hands only because the prosecution has not gathered evidence and has not even made efforts to obtain a result from the Forensic Science Laboratory regarding the “C-1” and “E” nylon string.
However, the Court complimented prosecutor SD Ghayal “for the tremendous efforts he has made and the way he has marshalled the facts of the case” before him.
“It is unfortunate that an order of acquittal is met with this amount of hard work at our unfortunate hands only because the protection has not gathered evidence and has not even made efforts to obtain a result from the Forensic Science Laboratory with regard to the nylon string,” the Court noted.
With respect to the POCSO judge, the Court claimed that it was under an obligation to guide the prosecutor to provide the witnesses or the pieces of proof required to arrive at the right conclusion. Specifically, the Court referred to the missing string of nylon, arguing that the judge should have paid heed to the fact that the string of nylon with which the victim was strangulated was missing.
“Each case must be handled with caution by the President and certain cases involving children of a tender age should be handled with utmost sensitivity,” the Court stressed.
The Court also issued instructions to the Maharashtra Prosecution Directorate to bring proceedings against those responsible for the “loss of the nylon string, failure to obtain a report from the Regional Forensic Science Laboratory (FSL) on the matching of the nylon string fiber and failure to examine the material witnesses.”