The Supreme Court on Wednesday, October 8, set aside the conviction and death sentence of a Chennai-based techie in the rape and murder of a seven-year-old. The alleged crime happened in 2017, and the man named Dashwanth, who was 23 years old at the time, was accused of burning the little girl’s body after committing rape.
He was awarded the death penalty by a Chengalpet court in 2018, and the Madras High Court upheld the conviction and sentence. But a Supreme Court bench comprising Justices Vikram Nath, Sanjay Karol and Sandeep Mehta set aside the conviction, letting Dashwanth go free.
The judgement is jarring.
It pricks at the conscience, making one question how an accused like Dashwanth, convicted and sentenced to death for a heinous crime, could be set absolutely free. But the judgement, in its full detail, also gives the answer to this question– shoddy investigation and inefficiency of the police to build a case beyond doubt.
“We may hasten to add that while the present case pertains to the commission of a heinous offence involving a girl of tender age of seven years, at the same time, we cannot ignore or bypass the fundamental principle of criminal jurisprudence that the prosecution is duty-bound to prove the guilt of the accused beyond reasonable doubt,” said the apex court in its judgement.
Dashwanth was also accused of killing his own mother and fleeing away with her gold ornaments in December 2017, while he was out on bail the the rape and murder of the little girl. But he was acquitted later in that case, for lack of evidence.
Dashwanth was provided with legal assistance in the child rape case by the Square Circle Clinic, NALSAR University of Law, Hyderabad (formerly Project 39A), which provides pro-bono defence to those awarded the death penalty.
Here is a breakdown of the judgement.
The child went missing from the apartment complex she stayed in with her family in Mugalivakkam on February 5, 2017. The parents had gone out shopping, and when they returned about an hour later, they could not find the child, who was playing with other children when they left. Neighbours, including Dashwanth, put together a search party to look for the girl.
One of the main arguments of the prosecution in court was that before having gone missing, the child was last seen with Dashwanth. This testimony was given by a neighbour, who said that he had seen the child playing with Dashwanth on the second floor of the apartment, before the parents came back.
But the apex court rejected this testimony, citing that it lacked credibility. It said that though the said neighbour claimed to have seen the child with Dashwanth, he failed to inform the same to the police or the search party upon seeing that Dashwanth was also part of it.
The court noted that such an incident was not mentioned by the child’s parents in their police complaint as well.
The apex court thereby concluded that the circumstance of last seen together was “created by the Investigating Officer through the witness in order to lend credence to an otherwise weak case.”
A crucial piece of evidence, based on which the police arrested Dashwanth was CCTV footage from a nearby temple, which captured ‘suspicious movement’.
The prosecution’s case was that after the search for the child bore no result, the parents were informed by the police that they had perused the CCTV footage from a nearby temple, which showed Dashwanth passing on a bike with a bag. This bag was later recorded by the police to contain the child’s body, which Dashwanth then burnt using petrol near the Anakaputhur bypass road.
The Supreme Court bench noted that the police did not procure the recording of the said camera and exhibit the same in evidence. “Hence, the primary evidence of the so-called CCTV footage is not available on record. In addition thereto, we find that the theory of incriminating CCTV footage also seems to be a fictional creation by the Investigating Officers to somehow trap the appellant for the crime,” the bench noted.
The court also noted that while the child’s father said that the police informed him about the CCTV visuals, the person who managed the CCTV said that the father had personally gone to the CCTV room and they both watched the visuals together.
“As per the witness, the said camera recording revealed that a person riding on a motorbike was seen passing by the temple, having placed a bag on the front of his bike. The witness elaborated that the face of the person was not clearly identifiable in the recording, and various other persons were also seen travelling by bikes with bags hanging from their vehicles,” the court noted.
Further, the child’s parents left for shopping at 6 pm. The neighbour claimed he saw the child with Dashwanth at about 6.15 pm. The parents returned at about 7.15 pm, when they found the child missing, and immediately after, they organised a search, in which Dashwanth also took part.
The court noted that it is impossible to fathom that Dashwanth could have committed rape, smothered the child, taken her body to the bypass road and burnt it within this period of time.
“It is unlikely that this gory sequence could have been wrapped up within the small window of one hour. The CCTV camera purportedly captured an important event, i.e., the moment when the appellant was allegedly seen taking away the bag in which the dead body of the child victim was stuffed and hence, the same could have provided a vital clue for solving the mystery behind the crime. Failure to collect the data from the Digital Video Recorder (DVR) of the CCTV camera creates a grave doubt on the bona fides of the Investigation Agency. It seems that the Investigation Officers were intentionally trying to screen the truth from being brought on record and wash their hands off the matter, by making the appellant a scapegoat,” the apex court wrote in its judgement.
The prosecution argued that the police found the child’s body, her ornaments, garments, and bottles used to buy petrol, based on Dashwanth’s confession of the crime. But the Supreme Court observed that there were discrepancies in this chain of events.
The Investigation Officer had said that Dashwanth was arrested on 8th February, 2017, at 9 am and thereafter, the confessional statement/disclosure statement was recorded from 9:05 to 10 am. However, going by the version of the child’s father, by that time, the police had already informed him about the minute details of the manner in which the crime was committed, the efforts made by the appellant to destroy the evidence, and the location where the body of the victim was disposed of.
The court observed that the police had already created the entire story and later on, tried to fit the same into a sequence in order to implicate Dashwanth.
“We have no hesitation in holding that recoveries of the bag, allegedly containing the bottles in which petrol was carried and the undergarment of the victim, were not effected at the instance of the appellant and were planted recoveries. This conclusion is fortified by the fact that there is no mention of the said bag in the observation mahazar and the rough sketch.”
The court noted that the Investigating Officer never mentioned sealing the ornaments allegedly found based on Dashwanth’s statement.
The apex court concluded that, hence, the confession of the accused and the said recovery of incriminating evidence against him “pales into insignificance.”
Regarding Dashwanth’s mobile phone, the court noted that the recovery was manipulated and that there was no document confirming the fact that the mobile phone was that of the accused.
“Even the identity of the owner of the SIM card was not established by any documentary evidence. The gross indifference shown by the Investigation Officer in making any efforts to search the flat of the appellant at the earliest available opportunity also adds to the series of the doubtful actions during the investigation,” the Supreme Court’s judgement said.
DNA evidence is a vital part of the prosecution’s case in such crimes. But the Supreme Court rejected this evidence on three counts.
The first was that the mandatory protocol of keeping the DNA samples in sealed covers was not followed by the police. “There is no indication in his evidence with regard to placing of the seized articles in a sealed condition which is the normal and mandatory protocol,” the court observed.
Though the semen on the underwear (of a child) matched Dashwanth’s DNA from his blood samples, the apex court ruled that the prosecution could not prove the garment was the victim’s. In fact, with the SC saying that crucial recoveries from Dashwanth’s bag seemed planted, the underwear too was discarded as credible evidence.
The court also questioned the delay on the police’s side in collecting Dashwanth’s blood samples for DNA matching. He was arrested on February 8, 2017.
The Scientific Officer at the Forensic Science Lab in Chennai told the court that they received the patch of semen detected on the underwear on 7th April, 2017. There was further delay, and his blood samples were collected only on June 8, 2017.
“Thus, there was no reason whatsoever for the Investigating Agency to have waited for four months before collecting the blood samples of the appellant. There is a strong possibility that the delay may have been utilised to manipulate the samples. Doing so was very easy because there is no evidence on record regarding the unbreached chain of custody of any of the forensic samples,” the court said.
The Supreme Court also observed that Dashwanth was denied a fair trial at many junctures of the case. To elaborate on this, the court cited how Dashwanth was not provided with a lawyer or legal aid until the charges were framed against him.
The chargesheet was filed by the police on August 17, 2017, and charges were framed on October 24, 2017. But it was only on December 13 that, for the first time, a legal aid counsel was appointed to represent Dashwanth.
“The schedule for examination of 30 prosecution witnesses was fixed for four days starting from 18th December, 2017 without providing the services of a legal aid counsel to the appellant who was left to face the charges of such grave nature unrepresented by a counsel of his choice or a legal aid counsel in gross disregard to the mandate of Articles 21 and 22(1) of the Constitution of India and the guidelines issued by NALSA,” the apex court noted.
The court further added that the right of an accused to a free trial is not illusory, and that it is the duty of the court as well as the state to ensure that the accused is not prejudiced or deprived of a fair opportunity of defending himself in a case where he may be awarded the death penalty.
The Supreme Court also pointed out that the trial court pronounced the conviction of Dhasvant on February 19, 2018. On the very same day itself, the court awarded him the death penalty. This, the apex court pointed out, is in contravention of settled legal principles mandated to be followed in such cases.
“Evidently, the manner in which the trial Court proceeded to pass the sentencing order indicates hot haste leaving much to be desired and would vitiate the death sentence awarded to the appellant. Neither the trial Court nor the High Court undertook the mandatory exercise of seeking a report of mitigating and aggravating circumstances; the psychological examination report of the appellant and a report concerning the conduct of the appellant in jail, before passing the order of sentence and confirming the same,” the Supreme Court bench noted.
The Supreme Court bench criticised both the trial court and the Madras High Court for glossing over the loopholes in the prosecution’s case. Consequently, the bench said that vital circumstances have not been proved beyond all manner of doubt, and it would not be safe to uphold Dashwanth’s conviction.
Read TNM’s coverage of the case over the years
I bailed my son out for love: Dashwanth's father tells TNM it was his biggest mistake
'Chennai became hell,' says father of 7-year-old who was sexually assaulted and murdered