Allahabad High Court acquits man sentenced to death in rape, murder case

The Allahabad High Court recently acquitted a man who was awarded death penalty in the rape and murder of a minor. .A Division bench of Justices Manoj Misra and Sameer Jain, acquitted one Nazil noting that the prosecution failed to prove its case beyond reasonable doubt."In the present case, we find that the prosecution evidence has failed to prove the incriminating circumstances of the deceased being last seen alive with the appellant and the recovery beyond the pale of doubt, and there is no medical / forensic evidence to demonstrate that there was presence of semen or blood stain of the appellant on the clothes of the deceased or on her body," the Court ruled.Importantly, the Bench held that all orifices and organs of the body of the victim were missing and there was nothing to incriminate the accused for rape except the confessional statement made by him before police which is not admissible. Unfortunately, the trial court failed to test the reliability and credibility of the prosecution evidence and has accepted the prosecution evidence as gospel truth, which is not the requirement of law, the Court added.The Court was hearing an appeal filed by one Nazil convicted by a trial court in December 2019, who was awarded capital punishment for allegedly raping a minor and murdering her. The deceased, aged 6 years at the time, had gone out to fetch curd on May 7, 2019, but did not return and despite a hectic search, could not be found.More than a month later, the partially-decomposed body was found from a semi-built house on June 22, 2019.The inquest report reflected that the body was reduced to a skeleton, flesh had melted, hair had got detached from the skull and were lying near the head. The body had an upper garment (vest/ Baniyan), dirty in color; and a dirty jamuni (a shade of dark blue) colored lower garment (knickers).The appellant was later arrested for the crime after an encounter.He was convicted by the court of the Additional Sessions Judge, Fast Track Court (Crime against Women)/ Special Judge, Protection of Children from Sexual Offences Act (POCSO Act), Rampur for offences punishable under Sections 363 (kidnapping), 376AB (punishment for rape of woman under 12 years of age) and 302 (murder) of the Indian Penal Code and Section 6 of the POCSO Act..The counsel for the appellant, Senior Advocate Nazrul Islam Jafri submitted that the trial court had not tested the prosecution evidence and without putting the same to scrutiny, accepted the prosecution evidence as the gospel truth. Such a decision is no decision in the eyes of the law, and evidence of the deceased being last seen alive with the appellant is unacceptable and completely unreliable, he further submitted. He submitted that the investigation was tainted, and destroyed the credibility of the prosecution case. In this regard, he referred that "no effort was made to test the credibility of information as to whether the appellant had any involvement in the crime and straight away the appellant is subjected to arrest by use of force.".The prosecution's evidence was examined in detail and all the statements were recorded. According to the prosecution, Nazil confessed his guilt and stated that he had taken the girl to a semi-built house with a bottle of oil to be used as a lubricant for intercourse. When he attempted the intercourse, the minor caught hold of his hair and pulled them as a result which several of his hair strands fell on the spot. The Court, however, noted that the site plan prepared in the afternoon of June 23, 2019, that is, the day after the body was discovered, did not disclose presence of any hair or of any other incriminating material on the spot. Further, the Court observed that it was admitted by the investigating officer (IO) that earlier, though the appellant had confessed his guilt, he had not made any disclosure with regard to the presence of any incriminating material on the spot. It is only when the third IO took over and obtained permission of the court to record clarificatory statements of the appellant, who was in the jail hospital having suffered two gunshot injuries, that the disclosure statement was allegedly recorded on June 25, 2019, with regard to the presence of hair and a bottle of oil at the place from where the body has been recovered.Regarding the recovery of the oil bottle, the Court noted that according to the prosecution evidence, the police took the appellant to the place where he had hidden the oil bottle and allowed him to pick up the bottle and give it to the IO."If the bottle of oil was allowed to be picked up by the appellant, the appearance of his finger prints on the bottle would be of no consequence. Here also, there is a deliberate attempt on the part of PW-8 to justify that, by stating that the accused picked up the bottle from its crown (cap). But that is not mentioned in the seizure memorandum," the Court observed.Thus, the Court concluded that the circumstances of recovery of hair and the bottle of oil from the spot on the disclosure statement of the appellant was not proved beyond reasonable doubt.The Court rejected the contention of the prosecution on the last-seen theory, and said that it was developed too late. "For 45 days, that is till the discovery of body, there was no last seen theory. Even when the body was discovered, in the written information (Ex. Ka-2), given on June 22, 2019, no last seen theory is there," the Court observed.It expressed its concern about fact that the informant and his family remained silent for nearly 45 days and expressed no suspicion regarding Nazil's involvement."After the encounter, all of a sudden the last seen theory emerges, (it) renders the last seen evidence completely unreliable and unworthy of credit," the Court said..In view of the above, the appeal was allowed and appellant was acquitted of all charges."We, therefore, have no hesitation in rejecting the reference for affirmation of the death sentence and in allowing the appeal of the appellant against the order of his conviction and sentence. The appeal of the appellant is allowed." the Court held..Senior Advocate Nazrul Islam Jafri, advocates Sadaful Islam Jafri and Nasira Adil appeared for the appellant while a government advocate appeared for the State. .[Read Judgment]