Supreme Court said it is the duty of the investigating agency to protect rights.

New Delhi:

The Supreme Court Friday said lapse or omission to carry out DNA profiling cannot be permitted to decide the fate of trial for the offense of rape, especially when it is combined with murder, as the cause of criminal justice would become the victim in case of acquittal only on account of such a flaw in the investigation.

The top court observed while commuting the death sentence, awarded to a man for raping and murdering an eight-year-old girl, to life imprisonment with the stipulation that he shall not be entitled to premature release or remission before undergoing actual sentence for a period of 30 years.

A three-judge bench headed by Justice AM Khanwilkar delivered its verdict on an appeal filed by the convict who had challenged the judgement of the Madhya Pradesh High Court which had confirmed the capital punishment awarded to him in the case by a trial court.

The bench, also comprising Justices Dinesh Maheshwari and CT Ravikumar, noted that the advocate appearing for the convict had contended that no DNA test was conducted to connect the appellant to the samples found on the body of the deceased, and thereby, section 53A of the CrPC was violated.

Section 53A of the Code of Criminal Procedure (CrPC) deals with the examination of the person accused of rape by a medical practitioner.

“In view of the nature of the provision under section 53A CrPC and the decisions referred…. we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offense of rape especially, when it is combined with the commission of the offense of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim,” the bench said in its 84-page judgement.

It noted that even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it is enough and cogent to prove the case of the prosecution.

“In a case which rests on circumstantial evidence, the court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour,” it said.

The apex court said there can be no doubt concerning the position that a fair investigation is necessary for a fair trial.

The bench said it is the duty of the investigating agency to protect the rights of both the accused and the victim by adhering to the prescribed procedures in the investigation and also to ensure a fair, competent, and effective probe.

“Even while holding so, we cannot be oblivious of the well-nigh settled position that solely on account of defects or deficiencies in investigation an accused is not entitled to get acquitted,” it said.

“In other words, it also cannot be the sole reason for interference with a judgment of conviction if the rest of the evidence is cogent enough to sustain the same,” the bench said.

It noted that the appellant was the cousin and brother of the victim’s mother and the incident took place in September 2014 in the Gwalior district.

In its judgement, the bench noted that the “diabolic and gruesome manner” in which the appellant had ravished the girl was evident from the grave injuries.

The bench observed that the trial court had considered the question of sentence and awarded it on the very same day on which the appellant was convicted.

“We shall not be understood to have held that this is absolutely illegal and impermissible. Ultimately, what is required is consideration of the aggravating and mitigating circumstances with the application of mind. They were not given the proper attention while considering the question of awarding the sentence for a conviction under section 302 IPC (murder), in the case on hand,” it noted.

The bench said it is “true that all murders are inhuman” and for imposing capital punishment, the crime must be uncommon in nature where even after taking into account the mitigating circumstances, the court must be of the opinion that the sentence of life is imprisonment inadequate and there is no alternative but to impose the death sentence.

It said the appellant, who was 25-year-old at the time of the commission of the offence, had no criminal antecedents, hails from a poor socio-economic background, and has unblemished conduct inside the jail.

“Hence, viewing the issue taking into account the aforesaid aspects, we do not find any reason to rule out the possibility and the probability of the reformation and rehabilitation of the appellant,” it said.


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