IMPORTANT POINTS
(1) Statutory safeguards in reference to language must be complied with.
(2) When a case is governed by circumstantial evidence, such evidence must point singularly to guilt of appellant, closing out possibility of all other hypotheses.

JUDGMENT :

SANJAY KAROL, J.

1. Leave granted.

2. The following issues arise for consideration in the present appeals:

(1) Whether non-recording of a disclosure statement of the appellant in the language in which it is made and recording of the same in a language totally unknown to the appellant, contents whereof are also not read over and explained to him, can be said to have caused any prejudice to the cause of justice?

(2) Whether DNA evidence can form the solitary basis in determining the guilt of the appellant?

(3) Whether the circumstances as identified and relied on by the prosecution indeed point to the guilt only of the appellant, closing out any and all other possibilities of any other person?

The Factual Prism

3. Pursuant to FIR No. 109/2010 dated 12.6.2010 registered at P.S. Bhayander (Thane, Maharashtra), the appellant Prakash Nishad @ Kewat Zinak Nishad was charged for having committed an offence punishable under Sections 376, 377, 302 and 201 of the Indian Penal Code, 1860 (‘IPC’ for short). The Trial Court vide judgment dated 27.11.2014 rendered in Sessions Case No. 407/2010, convicted the accused in connection with all the offences and imposed capital punishment for the charge under Section 302 IPC and sentence of imprisonment for other offences. Herein-below is a tabular representation of the sentences as imposed by the Trial Court:

4. Such findings of fact and conviction, including that of the death sentence imposed were affirmed by the High Court of Bombay, being the first Court of Appeal in both the proceedings. The reference was also answered in terms of common judgment dated 13-14.10.2015 rendered in Criminal Appeal No. 88/2015 and Criminal Confirmation Case No. 4/2014.

Hence, the present appeals preferred by the appellant.

5. The courts below concurrently found the prosecution to have established the case beyond reasonable doubt, i.e. the appellant after sexually assaulting a minor girl (aged six years) put her to death. Also, in an attempt to destroy the evidence threw her into a ‘nala’ (drain) and concealed material evidence of crime.

6. 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 appellant found on the undergarments of the prosecutrix (nicker) and the vaginal smear slide of the prosecutrix.

7. We now proceed to examine the prosecution case, as has unfurled through the testimonies of the prosecution witnesses. However, in the service of ease, the 13 prosecution witnesses given in a tabular form, which are categorised as follows:

(1) Testimony of the medical examiner, i.e. PW-4 Dr. Anjali Pimple (Ext.27).

(2) Testimonies of the independent witnesses, i.e. PW-1 Mustakin Mohamad Ismail Shaikh, father (Ext.18), PW-2 Rehanabano, mother (Ext.20) and PW-3 Falim Ahmed Ibrahim Shaikh, uncle (Ext.21) (all being the relatives of the prosecutrix).

(