Kanaka a 24 years old software engineer was working with a BPO company Bangalore.

She used to travel to her workplace and back by her company transport or public
transport or by an auto rickshaw. On the evening of 7/10/2020 i.e. the day of the
incident as she was working till late she missed the company transport and therefor
near Reliance mall an electronic city she accepted the offer of lift by Sachin accused no
-1 in the cab driven by himself and which the other two accused viz Vikran accused no 2
(security guard) and Anil accused no.3 were already sitting and present in the cab. They
abducted her to satisfy their insatiable lust. She was stripped naked and kept in that
condition for hours committing gang rape on her repeatedly.

They picked up Kanaka from reliance mall and subsequently drove her to Indiranagar
by M G Road and from there on words to Yalahanka and then to Yashwanthpura. There
onwards accused took her to Mysore Road where they raped her.

In mean time Rathodu (Approver) joined them and he too raped kanaka, then they
drove her to Dargha at Kengeri where the four and further to Vasanthapura road where
they raped her again. Thereafter they drove her to Kanakapura road where the accused
Sanchin , Vikram , Anil brutally killed her by first strangulating her by dupatta and then
by crushing her face and head with heavy stones to camouflage her identity in order to
destroy the evidence. How ever, Kanaka parents successfully followed up with the
investigation all accused person were arrested on 14/10/2020

The trial took place against all these accused in the trial Court, Bangalore.

Trio accused in this case were held guilty for the Gang rape and murder and all the
three accused were sentenced to death U/S 376/(A), 397, 302, 404, 120(B) of IPC for
this horrific crime vide order dated 20/07/2022. But Rathodu (Approver) was sentenced
to 7 years imprisonment. All the three accused filed an appeal in the Karnataka High
Court against the decision of the Trial Court Bangalore to set aside the conviction and
sentence.

Points for Consideration.

1- Whether the appeal against conviction is maintainable?

2- Whether the accused conspired to commit the said crimes and in pursuance of
this conspiracy they carried out the criminal acts as charged by the prosecution?
3- Whether the prosecution has proved beyond reasonable doubt the common
intention of the accused by brining on record that the said acts were committed
by several persons in furtherance of their common intention?
 Instructions:

1) The students should prepare Criminal Appeal against the judgement and
conviction passed by the Trial Court.
2) The students to prepare written arguments on behalf of both the parties (State
and the Accused).
3) The students should write in their own hand writing legibly & neatly.

IN THE HIGHCOURT OF KARNATAK, AT BENGALURU

(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NUMBER ……………/2022

IN THE COURT OF CITY CIVIL AND SESSIONS JUDGE AT

BENGALURU

S C NO 111/2022

IN THE HIGHCOURT OF KARNATAK, AT BENGALURU

CRIMINAL APPEAL NUMBER ……………/2022
DATED THIS DAY OF 30TH NOVEMBER 2022

CRIMINAL APPEAL NUMBER ……………/2022

DISTRICT BENGALURU

BETWEEN Ranks of the parties in

Trial Court High Court

SACHIN – Accused 1 Appellant

S/o – Ramappa
AGED ABOUT 28 YEARS
Occupation – DRIVER
Living in Jayanagar3rd block
Bengaluru - 560011

ANIL Accused 2 Appellant

S/o - Ganesh
AGED ABOUT 26 YEARS
Occupation – Car cleaner
Living in Jayanagar3rd block
Bengaluru - 560011

VIKRAM Accused 3 Appellant

S/o – Bheemappa
AGED ABOUT 29 YEARS
Occupation – Security Guard
Living in Shanti Nagar
Bengaluru - 560011
( By Sri Narendra M and Asst ..Adv.,)

VERSUS

THE STATE OF KARNATAKA

Police station of electronic city
Rep by SPP
High Court Building
Bengaluru
(By Sri Manjunath…SPP2) Complainant Respondent

***********

MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 374(2) OF

CODE OF CRIMINAL PROCEEDURE, 1908

I Index of Authorities

1. The locus classicus on the subject is Sharad Birdhichand Sarda v. State of

Maharashtra1. A recent judgement of this Court authored by one of us (Vikram Nath,
J.) has highlighted the well settled law on circumstantial evidence in Indrajit Das v.
State of Tripura2, reiterating the golden principles, as under:

“10. The present one is a case of circumstantial evidence as no one has

seen the commission of crime. The law in the case of circumstantial
evidence is well settled. The leading case being Sharad Birdhichand Sarda
v. State of Maharashtra. According to it, the circumstances should be of a
definite tendency unerringly pointing towards the guilt of the 1 (1984) 4 SCC
 116 2 2023 SCC OnLine SC 201 11 accused; the circumstances taken
cumulatively should form a chain so complete that there is no escape from
the conclusion that within all human probability the crime was committed by
the accused and they should be incapable of explanation on any hypothesis
other than that of the guilt of the accused and inconsistent with his
innocence. The said principle set out in the case of Sharad Birdhichand
Sarda (supra) has been consistently followed by this Court. In a recent case
- Sailendra Rajdev Pasvan v. State of Gujarat, this Court observed that in a
case of circumstantial evidence, law postulates two-fold requirements.
Firstly, that every link in the chain of circumstances necessary to establish
the guilt of the accused must be established by the prosecution beyond
reasonable doubt and secondly, all the circumstances must be consistent
pointing out only towards the guilt of the accused. We need not burden this
judgment by referring to other judgments as the above principles have been
consistently followed and approved by this Court time and again.”

2. This Court in Krishan Kumar Malik v. State of Haryana4 (two-Judge), observed the
necessity of compliance with Section 53A, which later on was clarified in Rajendra
Prahladrao 4 (2011) 7 SCC 130 31 Wasnik v. State of Maharashtra5 (three-Judges)
that the said provision is not mandatory in nature. It was observed that it only requires
a positive call to be taken in respect of the need to follow the provision or not. The
bench held-

“49…There must be reasonable grounds for believing that the

examination of a person will afford evidence as to the
commission of an offence of rape or an attempt to commit
rape. If reasonable grounds exist, then a medical examination
as postulated by Section 53-A (2) CrPC must be conducted
and that includes examination of the accused and description
of material taken from the person of the accused for DNA
profiling…” (Emphasis Supplied)

3. Even otherwise, on the value of DNA evidence, we may refer to an observation made
by hon’ble supreme court, in Pattu Rajan v. State of T.N.8, as under;

“52. Like all other opinion evidence, the probative value

accorded to DNA evidence also varies from case to
case, depending on the facts and circumstances and
the weight accorded to other evidence on record,
whether contrary or corroborative. This is all the more
 important to remember, given that even though the
accuracy of DNA evidence may be increasing with the
advancement of science and technology with every
passing day, thereby making it more and more reliable,
we have not yet reached a juncture where it may be
said to be infallible. Thus, it cannot be said that the
absence of DNA evidence would lead to an adverse
inference against a party, especially in the presence of
other cogent and reliable evidence on record in favour
of such party.” (Emphasis supplied)

4. Referring to the above case, a three-Judge bench in Manoj v. State of M.P. 9,

through S. Ravindra Bhat J., observed;

“158. This Court, therefore, has relied on DNA reports, in the past,
where the guilt of an accused was sought to be established. Notably,
the reliance was to corroborate. This Court highlighted the need to
ensure quality in the testing and eliminate the possibility of
contamination of evidence; it also held that being an opinion, the
probative value of such evidence has to vary from case to case.”

5. This court, recently, in Maghavendra Pratap Singh @Pankaj Singh v. State of

Chattisgarh10 had emphasized the role and responsibilities of the investigating
authorities by referring to various judgments of this Court. Such principles, which are
essential to successful investigations, were not adhered to. Needless to state, such
responsibilities would be all the more heightened in cases of crimes involving severe
punishments such as imprisonment for life or the sentence of death. Considering the
nature of the case, the police ought to have, even more than usual, taken steps,
precautions, and decisions to safeguard the factfinding and investigation exercise.

In view of the above, the appeals are allowed. Ex-consequenti, the

judgment dated 27.11.2014 in Sessions Case No.407/2010, passed
by District Judge-2 and Additional Sessions Judge, Thane as
affirmed by the High Court vide judgment dated 13th & 14th October,
2015 in Confirmation Case No.4/2014 titled as State of 10 2023 SCC
OnLine SC 486 42 Maharashtra v. Prakash Nishad @ Kewat Zinak
Nishad and Criminal Appeal No.88/2015 titled as Prakash Nishad @
Kewat Zinak Nishad Vs. State of Maharashtra, respectively,
convicting the appellant under Sections 302, 376, 377 and 201 IPC
 and sentencing him to death and life imprisonment and other
punishments described above,

Abbreviations:

CRA CRIMINAL APPEAL

SCC SUPREME COURT CASE
AIR ALL INDIA REPORTER
PS POLICE STATION
REP REPRESENTED
SPP SPECIAL PUBLIC PROSECUTOR
U/S UNDER SECTION
R/W READ WITH
I/O INVESTIGATION OFFICER
LCR LOWER COURT RECORD
TCR TRIAL COURT RECORD
Crl, APPEAL CRIMINAL APPEAL

BRIEF FACTS OF THE CASE

Kanaka a 24 years old software engineer was working with a BPO company Bangalore.

She used to travel to her workplace and back by her company transport or public
transport or by an auto rickshaw. On the evening of 7/10/2020 i.e. the day of the
incident as she was working till late she missed the company transport and therefor
near Reliance mall an electronic city she accepted the offer of lift by Sachin accused no
-1 in the cab driven by himself and which the other two accused viz Vikran accused no 2
(security guard) and Anil accused no.3 were already sitting and present in the cab. They
abducted her to satisfy their insatiable lust. She was stripped naked and kept in that
condition for hours committing gang rape on her repeatedly.

They picked up Kanaka from reliance mall and subsequently drove her to Indiranagar
by M G Road and from there on words to Yalahanka and then to Yashwanthpura. There
onwards accused took her to Mysore Road where they raped her.

In mean time Rathodu (Approver) joined them and he too raped kanaka, then they
drove her to Dargha at Kengeri where the four and further to Vasanthapura road where
they raped her again. Thereafter they drove her to Kanakapura road where the accused
Sanchin , Vikram , Anil brutally killed her by first strangulating her by dupatta and then
by crushing her face and head with heavy stones to camouflage her identity in order to
destroy the evidence. How ever, Kanaka parents successfully followed up with the
investigation all accused person were arrested on 14/10/2020

The trial took place against all these accused in the trial Court, Bangalore.

Trio accused in this case were held guilty for the Gang rape and murder and all the
three accused were sentenced to death U/S 376/(A), 397, 302, 404, 120(B) of IPC for
this horrific crime vide order dated 20/07/2022. But Rathodu (Approver) was sentenced
to 7 years imprisonment. All the three accused filed an appeal in the Karnataka High
Court against the decision of the Trial Court Bangalore to set aside the conviction and
sentence.

JURISDICTION

Section 374(2) in The Code of Criminal Procedure, 1973

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge
or on a trial held by any other Court in which a sentence of imprisonment for more than
seven years 2 has been passed against him or against any other person convicted at the same
trial], may appeal to the High Court.

Points of law for Consideration.

1- Whether the appeal against conviction is maintainable?

2- Whether the accused conspired to commit the said crimes and in pursuance of
this conspiracy they carried out the criminal acts as charged by the prosecution?
3- Whether the prosecution has proved beyond reasonable doubt the common
intention of the accused by brining on record that the said acts were committed
by several persons in furtherance of their common intention?

4- The socio-economic condition of the convicts, as they were poor and had families
to support;
5- Clean history and a chance to reform;
6- Presumption of innocence to their advantage;
7- Life imprisonment being the norm and death being an exception, with no special
criteria in this case to award the sentence of death;
8- They are only convicted on the grounds of conspiracy and not because of their
respective acts;

WRITTEN ARGUMENTS FILED ON BEHLAF OF THE APPEALANTS

(ACCUSED No-1, 2 & 3)

The Appellant submits as follows: -

1 The appellants/accused have been convicted for the offences punishable U/S
376/(A), 397, 302, 404, 120(B). Appellants herein above are arrayed as accused
number 1 and 3 before the session court. The accused are convicted for the
afforested offences hence this appeal is filed seeking to challenge the order of
conviction.
2 At the threshold, we may point out that it is a case of circumstantial evidence, as
none has witnessed the crime for which the appellant stands charged for. The
prosecution case is primarily based, not on ocular evidence but on the confessional
statement of the appellant leading to the recovery of incriminating articles and
through scientific analysis establishing his guilt. The sheet-anchor of the case
being the DNA analysis report stating the semen of the appellants found on the
undergarments of the prosecutrix (nicker) and the vaginal smear slide of the
prosecutrix

3 The Motive for committing the murder is also submitted to have been proved.

4 The question which arises for consideration is: as to who committed the dastardly
crime? Was it only the appellant or someone else?

5 For ascertaining such fact, we now proceed to examine the prosecution case as
set out in different stages, be it investigation or trial.

6 The law on circumstantial evidence is well settled. When a case is governed by

such evidence, the evidence must point singularly to the guilt of the appellant,
closing out the possibility of all other hypotheses.

7 To establish the guilt of the appellant, the prosecution relies upon the following
circumstances:

8 The appellant made disclosure statements, i.e., dated 14.10.2022 and dated
17.10.2022 which led to the recovery of incriminating articles. from the house of
the appellant and 2 another place where he had hidden the clothes belonging to
him and the prosecutrix;

9 The DNA reports prepared on scientific analysis by an expert, establishing the

blood of the prosecutrix on banian of the appellant and his semen on the clothes
of prosecutrix and her vaginal smear slide.
10 Let us examine whether all these circumstances stand established by the
prosecution or not.

11 None of the witnesses have deposed that it was at the instance of the appellant
that the prosecutrix went in the car, nor has anyone deposed to the effect of having
seen the appellants and the prosecutrix together at any point in time

12 We find on this count the prosecution has not sufficiently proven the case. This is
for two reasons: (1) If the alleged house of the appellant was thoroughly searched
on 14.10.2022, then the question of recovery of articles on 16.6.2010 should not
arise. The house is nothing but a small room of 8.5 feet x 6.5. feet (out of which a
bathroom was 2.5 feet x 2.5 feet). The police party in the absence of appellant had
microscopically scanned the said room, and yet could not find any material
allegedly recovered on 16.6.2010 vide memo Ext.48; (2) Even the recovered
articles, be it of the search conducted on 14.10.2022 and 16.10.2022, do not
sufficiently link the appellant to the crime

13 There is only one document on record, indicating the appellants to have been
medically examined. But even this document does not reveal sample of the body
part being drawn. In any event, the doctor who conducted such examination, has
not stepped into the witness box to testify the correctness of the contents thereof.
Also, the document itself is uninspiring confidence as we notice certain
interpolations therein and in a different hand. Additionally, the document does not
fall true to the statutory requirements imposed under Section 53A Cr.P.C.

14 As has been hitherto observed, there is no clarity of who took the samples of the
appellants. In any event, record reveals that one set of samples taken on
14.10.2022 were sent for chemical analysis on 16.10.2022 and the second sample
taken on 16.10.2022 is sent the very same day. Why there exist these differing
degrees of promptitude in respect of similar, if not the samenatured scientific
evidence, is unexplained.

15 In the present case, the delay in sending the samples is unexplained and therefore,
the possibility of contamination and the concomitant prospect of diminishment in
value cannot be reasonably ruled out. On the need for expedition in ensuring that
samples when collected are sent to the concerned laboratory as soon as possible,
we may refer to “Guidelines for collection, storage and transportation of Crime
Scene DNA samples For Investigating Officers- Central Forensic Science
Laboratory Directorate Of Forensic Sciences Services Ministry Of Home Affairs,
 Govt. of India”7 which in particular reference to blood and semen, irrespective of
its form, i.e. liquid or dry (crust/stain or spatter) records the sample so taken “Must
be submitted in the laboratory without any delay.”

16 Indisputably, these “without any delay” and “chain of custody” aspects which are
indispensable to the vitality of such evidence, were not complied with. In such a
situation, this court cannot hold the DNA Report to be so dependable as to send
someone to the gallows on this basis. We have carefully perused FSL as well as
DNA report forming part of the record.

17 In the present case, even though, the DNA evidence by way of a report was
present, its reliability is not infallible, especially not so in light of the fact that the
uncompromised nature of such 8 (2019) 4 SCC 771 9 (2023) 2 SCC 353 37
evidence cannot be established; and other that cogent evidence as can be seen
from our discussion above, is absent almost in its entirety.

18 Unfortunately, the courts below did not go into all the aforesaid aspects and
presumptuously assumed the guilt of the appellant and held him to have committed
the crime.

19 Further, what weighed with the courts below is more so evident from the findings
returned by the Sessions Court, i.e., nature of the alleged crime being indeed one
of the heart-breaking, horrific and most depraved kind, prompting the confirmation
of the death sentence awarded by the Trial Court, considering the case to be the
rarest of rare.

20 It is true that the unfortunate incident did take place, and the prosecutrix sustained
multiple injuries on her body and surely must have suffered great pain, agony, and
trauma. At the tender age of 6, a life for which much was in store in the future was
terrifyingly destroyed and extinguished. The parents of the prosecutrix suffered an
unfathomable loss; a wound for which there is no remedy.

21 Despite such painful realities being part of this case, we cannot hold within law,
the prosecution to have undergone all necessary lengths and efforts to take the
steps necessary for driving home the guilt of the appellant and that of none else in
the crime.

22 There are, in fact, yawning gaps in the chain of circumstances rendering it far from
being established- pointing to the guilt of the appellant.
23 As already pointed out, there are several irregularities and illegalities on the part
of the agencies examining the case.

24 The questions raised in the instant appeals are answered accordingly.

25 Both the crimes committed against the innocent girl is unquestionably, malum in
se i.e., evil and wrong on their own, without the prohibition of law making it so. This
fact, coupled with the duty upon the investigating authorities not only to protect the
citizens of the country, but also ensure fair and proper investigations into crimes
affecting the society, as in the present case, casts upon such authorities, in the
considered view of this Court, not only legal, but also a moral duty to take all
possible steps within the letter of the law to bring the doers of such acts to the
book.

26 In the instant case, the reasons why the investigation officers were changed time
and again from, is surprising and unexplained. As we have already pointed out, no
reason stands given for having decided that there was no need to comply with the
provisions of Section 53A, Cr.P.C.; there is unexplained delay in sending the
samples collected for analysis; premises already searched was searched again,
the reason for which is not borne from record; lock panchnama is not prepared; no
samples of blood and semen of the appellant can be said to have been drawn by
any medical or para medical staff; allegedly an additional sample is taken from the
appellant more than a month after the arrest; alleged disclosure statement of the
appellant was never read over and explained to the appellant in his vernacular
language; the appellant was not residing alone at the place alleged to be his
residence; and what was the basis of appellant being a suspect at the first instance,
remains a mystery; such multitudinous lapses have compromised the quest to
punish the doer of such a barbaric act in absolute peril.

27 The charges mentioned above, although serious and grievous in nature, cannot
be said to have been met against the present appellant. The factum of the
commission of the crime against the innocent girl is not in dispute and cannot be
deprecated enough even in the most severe terms. However, as the above
discussion has laid out clearly, the circumstances forming the chain of commission
of this crime cannot and do not conclusive to the appellant in a manner that he
may be punished for the same much less, with the sentence of being put to death.

28 In view of the above the charges levied on the appellant stand not proved.

29 are quashed and set aside.

30 The appellant be set at liberty forthwith, if not required in any other case. Pending
applications, if any, are also disposed of.

31 Having regard to the discussion made above, it is clear that

(a) there is no linking regarding the death of deceased by killing and the
Accused,
(b) Motive attributed is not proved and as such difficult to establish the murder
by the Accused Persons,
(c) Body was not discovered at the information of the Accused, since the
body was found in Public Place, open to public vision,
(d) No explanation as to the missing of limbs of the body

The Appellant, therefore, pray that: -

(a) This Hon’ble Court may be pleased to call for the entire record and
proceedings in respect of the impugned Judgment and Order of Conviction and
Sentence passed by the learned Sessions Judge at XXX, dated 21st February
0000, in Sessions Case No. 00 of 0000;

(b) After perusal of the same this Hon’ble Court may be pleased to quash and set
aside the impugned Judgment and Order of conviction and sentence and set the
present Appellant at liberty;

(c) Affidavit of the Appellant may kindly be dispensed with as the Appellant are in
jail.

(d) Any other order in the interest of justice may kindly be passed.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE APPELLANT SHALL,
AS IN DUTY BOUND, EVER PRAY.

Bengaluru, Dated this

3rd day of March, 0000
ADVOCATE FOR THE
APPELLANT
VINAY KUMAR KULKARNI
 WRITTEN ARGUMENTS FILED ON BEHLAF OF THE PROSECUTRIX

The SPP submits as follows: -

1 The decision was held rightfully in convicting the accused no1,2,3 as they
themselves confessed to the dastardly act truth

2 At the threshold, this can’t be a considered as a circumstantial evidence case, as

Vikram (approver) who has witnessed the crime for which the appellant stands
charged for and on the ocular evidence that appellant leading to the recovery of
incriminating articles and through scientific analysis establishing his guilt. The
sheet-anchor of the case being the DNA analysis report stating the semen of the
appellants found on the undergarments of the prosecutrix (nicker) and the vaginal

3 smear slide of the prosecutrix

4 The Motive for committing the murder is established and proved.

5 The question which arises for consideration is: as to who committed the dastardly
crime? Was it only the appellant or someone else? This is very clear from the
approver and the confession made by the appellants

6 For ascertaining such fact, we now proceed to examine the prosecution case as
set out in different stages, be it investigation or trial.( Trial has been held and
successfully derived the facts.

7 The law on circumstantial evidence is well settled. When a case is governed by

such evidence, the evidence must point singularly to the guilt of the appellant,
closing out the possibility of all other hypotheses. ( Yes, the Appellants acts have
been proved beyond the doubt.

8 To establish the guilt of the appellant, the prosecution relies upon the following
circumstances:

9 The appellant made disclosure statements, i.e., dated 16.6.2010 and dated
17.6.2010 which led to the recovery of incriminating articles. from the house of the
 appellant and 2 another place where he had hidden the clothes belonging to him
and the prosecutrix;

10 The DNA reports prepared on scientific analysis by an expert, establishing the

blood of the prosecutrix on banian of the appellant and his semen on the clothes
of prosecutrix and her vaginal smear slide.

11 Let us examine whether all these circumstances stand established by the

prosecution or not.

12 None of the witnesses have deposed that it was at the instance of the appellant
that the prosecutrix went in the car, nor has anyone deposed to the effect of having
seen the appellants and the prosecutrix together at any point in time ( It is well
established in trial that all the appellants and approver was present in the car and
participated in such cruel Act)

13 There is only one document (Ext.79) on record, indicating the appellant to have
been medically examined. But even this document does not reveal sample of the
body part being drawn. In any event, the doctor who conducted such examination,
has not stepped into the witness box to testify the correctness of the contents
thereof. Also, the document itself is uninspiring confidence as we notice certain
interpolations therein and in a different hand. Additionally, the document does not
fall true to the statutory requirements imposed under Section 53A Cr.P.C.(When
the appellant have agreed to the crime and the appellant themselves agreed to the
tests, there is no question of calling the doctor as witness.

14 We may observe that the Maharashtra Police Manual6, when speaking of the
integrity of scientific evidence in Appendix XXIV states-

15 “The integrity of exhibits and control samples must be safeguarded from the
moment of seizure upto the completion of examination in the laboratory. This is
best done by immediately packing, sealing and labeling and to prove the continuity
of the integrity of the samples, the messenger or bearer will have to testify in Court
that what he had received was sealed and delivered in the same condition in the
laboratory. The laboratory must certify that they have compared the seals and
found them to be correct. Articles should always be kept apart from one another
after packing them separately and contact be scrupulously avoided in transport
also.” ( it is all well handled and proved the same in session courts trial)
 Availablehere

https://www.mahapolice.gov.in/uploads/acts_rules/MumbaiPoliceManualPartIII.p
df 33

16 In the present case, the delay in sending the samples is unexplained and therefore,
the possibility of contamination and the concomitant prospect of diminishment in
value cannot be reasonably ruled out. On the need for expedition in ensuring that
samples when collected are sent to the concerned laboratory as soon as possible,
we may refer to “Guidelines for collection, storage and transportation of Crime
Scene DNA samples For Investigating Officers- Central Forensic Science
Laboratory Directorate Of Forensic Sciences Services Ministry Of Home Affairs,
Govt. of India”7 which in particular reference to blood and semen, irrespective of
its form, i.e. liquid or dry (crust/stain or spatter) records the sample so taken “Must
be submitted in the laboratory without any delay.” ( There was no delay on the part
of IO and it has been well established)

17 The document also lays emphasis on the ‘chain of custody’ being maintained.
Chain of custody implies that right from the time of taking of the sample, to the time
its role in the investigation and processes subsequent, is complete, each person
handling said piece of evidence must duly be acknowledged in the documentation,
so as to ensure that the integrity is uncompromised. It is recommended that a
document be duly 7 Available at-
http://cfslchandigarh.gov.in/Uploads/Media/Original/20180627121024_IOSOP%2
0Final.pdf 34 maintained cataloguing the custody. A chain of custody document in
other words is a document, “which should include name or initials of the individual
collecting the evidence, each person or entity subsequently having custody of it,
dated the items were collected or transferred, agency and case number, victim’s
or suspect’s name and the brief description of the item.” (There was no delay on
the part of IO and it has been well established)

18 Unfortunately, the courts below did not go into all the aforesaid aspects and
presumptuously assumed the guilt of the appellant and held him to have committed
the crime. ( It is very well established fact of gang rape under tira in sessions court)

19 Further, what weighed with the courts below is more so evident from the findings
returned by the Sessions Court, i.e., nature of the alleged crime being indeed one
of the heart-breaking, horrific and most depraved kind, prompting the confirmation
of the death sentence awarded by the Trial Court, considering the case to be the
 rarest of rare.(The barbaric act conducted by the accused does not deserve
anything less than the death)

20 It is true that the unfortunate incident did take place, and the prosecutrix sustained
multiple injuries on her body and surely must have suffered great pain, agony, and
trauma. At the tender age of 6, a life for which much was in store in the future was
terrifyingly destroyed and extinguished. The parents of the prosecutrix suffered an
unfathomable loss; a wound for which there is no remedy.( If this confession itself
is sufficient for prosecuting the appellants)

21 Despite such painful realities being part of this case, we cannot hold within law,
the prosecution to have undergone all necessary lengths and efforts to take the
steps necessary for driving home the guilt of the appellant and that of none else in
the crime. ( Everything has been done and proved in trial in sessions court)

22 As already pointed out, there are several irregularities and illegalities on the part
of the agencies examining the case. ( Nothing )

23 The questions raised in the instant appeals are answered accordingly.

24 Both the crimes committed against the innocent , are unquestionably, malum in se
i.e., evil and wrong on their own, without the prohibition of law making it so. This
fact, coupled with the duty upon the investigating authorities not only to protect the
citizens of the country, but also ensure fair and proper investigations into crimes
affecting the society, as in the present case, casts upon such authorities, in the
considered view of this Court, not only legal, but also a moral duty to take all
possible steps within the letter of the law to bring the doers of such acts to the
book.

25 The charges mentioned above, although serious and grievous in nature, cannot
be said to have been met against the present appellant. The factum of the
commission of the crime against the six-year-old innocent child is not in dispute
and cannot be deprecated enough even in the most severe terms. However, as
the above discussion has laid out clearly, the circumstances forming the chain of
commission of this crime cannot and do not point 41 conclusively to the appellant
in a manner that he may be punished for the same much less, with the sentence
of being put to death.

26 In view of the above the charges levied on the appellant stand not proved.
27 In view of the above, the appeals are allowed. Ex-consequenti, the judgment dated
27.11.2014 in Sessions Case No.407/2010, passed by District Judge-2 and
Additional Sessions Judge, Thane as affirmed by the High Court vide judgment
dated 13th & 14th October, 2015 in Confirmation Case No.4/2014 titled as State
of 10 2023 SCC OnLine SC 486 42 Maharashtra v. Prakash Nishad @ Kewat
Zinak Nishad and Criminal Appeal No.88/2015 titled as Prakash Nishad @ Kewat
Zinak Nishad Vs. State of Maharashtra, respectively, convicting the appellant
under Sections 302, 376, 377 and 201 IPC and sentencing him to death and life
imprisonment and other punishments described above, are quashed and set aside.

28 The appellant be set at liberty forthwith, if not required in any other case. Pending
applications, if any, are also disposed of. ( It would be bad precedent if the
appellants left with any punishment less than the death and it would be grave
injustice to the entire women fraternity and the society)

29 Having regard to the discussion made above, it is clear that

(a) there is no linking regarding the death of deceased by killing and the
Accused,
(b) Motive attributed is not proved and as such difficult to establish the murder
by the Accused Persons,
(c) Body was not discovered at the information of the Accused, since the
body was found in Public Place, open to public vision,

The Respondent, therefore, pray that: -

(a) This is clear case of barbaric act which does not deserve any mercy by the
convict.
(b) In the interest of justice kindly do not entertain this appeal,

AND FOR THIS ACT OF CRULETY AND JUSTICE, THE PUNISHMENT GIVEN
BY THE TRIAL COURT SHOULD BE UPHELD IS MY HUMBLE REQUEST.

Bengaluru, Dated this

3rd day of March, 0000
ADVOCATE FOR THE
RESPONDENT
RAMESH NAVEEN