In a significant ruling, the Bombay High Court while acquitting a man from a death sentence for raping and killing a minor girl, ordered a probe against the investigating team for misplacing a vital piece of evidence - a nylon rope that was used to strangulate the victim.
While granting benefit of the doubt to the man, a bench of Justices Ravindra Ghuge and Bhalchandra Debadwar said courts must be sensitive while granting death sentences.
The bench was seized with a plea filed by a man challenging his conviction under the POCSO law and also the death sentence.
The man, a father of a six-year-old daughter, was convicted for raping a five-year-old girl and then strangulating her with a nylon rope and throwing her dead body into a well. He had put the dead body in a gunny bag and had covered the naked body of the girl with his father's lungi.
As per the prosecution, the minor girl's father had died and her mother had remarried and thus she was looked after by her grandparents. On a relevant day, the girl went missing when she was alone in the house.
After around three days of a missing report lodged by her family, her dead body was found in the village's well.
The investigation team had seized the lungi as also the nylon rope and the same was sent for forensic tests. It also took the help of a sniffer dog, who reached towards the house of the accused after sniffing the piece of lungi.
Apart from this, the prosecution also relied upon the "last seen theory" wherein a grocery shop owner in the village had claimed that he had seen the accused taking the victim girl towards his house.
However, after scrutinising the material on record, the bench concluded that the last seen theory wasn't corroborated with any other evidence.
Even the sniffer dog evidence, the judges said was not sufficient as it is not considered a substantial piece of evidence.
The medical reports, however, the judges noted concluded that the girl was raped and was murdered. But the bench said that the other evidence on record did not specify as to the accused in the case was the one who raped and killed the girl, with multiple injuries over her person.
Lastly, the judges noted that the nylon rope that was seized by the investigation team had gone missing and its FSL report clarifying that the same was cut from the rope seized from the accused's house, was not placed on record.
Accordingly, the bench gave a "benefit of the doubt" to the accused and acquitted him of all the charges and even the death sentence.
However, the bench expressed its displeasure, "We have no hesitation in observing that we are indeed disturbed by the manner in which the prosecution has investigated the crime, collected evidence and conducted the trial in a most insensitive manner. It is unfortunate that such amount of hard work (by the prosecutor) is met with an order of acquittal at our unfortunate hands only because the prosecution has not collected evidence and has not even taken efforts to get the FSL reports of the nylon string."
"We find no hesitation in directing the Directorate of Prosecution, Maharashtra to initiate action against those responsible for the loss of the nylon string and failure to get the FSL report," the judges ordered.
