Case commentary

Abstract

Eyewitness identification; disclosure; credibility; prior inconsistent statements—India

On 5 June 2003, a gang of seven or eight people entered a hut in a rural village, murdered five members of the family living there, and raped one other. Two members of the family, M and V, survived. On the strength of their identification, the six defendants were convicted and sentenced to death. In 2007, the High Court varied the sentence of three defendants to life imprisonment. Later, the Supreme Court of India restored the death sentence for all six. In March 2019, however, the Supreme Court reviewed its earlier decision, and set it aside: Ankush Maruit Shinde and others v State of Maharashtra, Criminal Appeal Nos 1008–1009 of 2007; State of Maharashtra v Ambadas Laxman Shinde and others, Criminal Appeal Nos 881–882 of 2009; Ambadas Laxman Shinde and others v State of Maharashtra, Criminal Appeal Nos 268–269 of 2019, reported at https://www.jurist.org/news/wp-content/uploads/sites/4/2019/03/J1AnkushMarutiShinde2019.pdf.

The prosecution rested its decision principally on the identification evidence. Writing for the Court, Justice Shah observed: ‘[T]hough the charge is of rape and murder, there is no forensic evidence corroborating the prosecution case.’ (9.1) It continued: ‘Other than the evidence of [M and V], there is no other evidence to link the accused to the offence. Looking to the nature of the crime committed in which five persons were killed brutally and one was also raped, and the serious consequence it may have for those convicted, it is necessary that the evidence should be of a very high quality and satisfy the higher burden of proof.’ (9.2)

For this reason, much of the court’s ruling focused on the problems surrounding the identifications. Both M and V identified the defendants in a line-up, as well as in open court. There were real concerns, though, as to whether M and V were in any position to identify their assailants. The attack took place at 10:30 pm. It is unclear whether there was light in the hut. According to M, ‘the culprits were using battery torches and were searching in torchlight’. There was some doubt as to whether there was an electric light in the hut, and whether it was turned on when the attack began. But, the court noted, ‘[e]ven if it is assumed that there was some light initially…the rest of the incident took place under torchlights carried by the culprits’. That being the case, neither M nor V ‘would have been able to get a proper look at the persons who committed the offence’. Moreover, even the prosecution conceded that the two witnesses had both ‘fallen unconscious during the incident’. Justice Shah further observed that they could not describe the assailants or their clothes to police. Nor could M and V ‘ascribe…specific roles to the culprits’. V elaborated upon her account at trial, but this was two and a half years after the offence; the court could not dismiss the omissions in her earlier statements to police as ‘minor’. Justice Shah stated: ‘[W]e are of the opinion that the omissions are major omissions and improvements which are fatal to the case of the prosecution and in any case, it creates reasonable doubt on the trustworthiness and the reliability of [V].’ (9.4)

Other issues arose with respect to the identifications. Both M and V suggested that the assailants had spoken Hindi with the victims during the attack. Yet:

All the victims are Marathi speakers. The accused also hail from Maharashtra and are Marathi speakers. Therefore, if the accused were to speak with the victims, they would have spoken in Marathi and not in Hindi. Therefore, there is a possibility that the culprits who were speaking in Hindi were not Marathi speakers and they might be outsiders—non-Marathis. (9.5)

The fact that neither M nor V were able to describe their attackers to police also called into question the validity of the line-up: ‘[O]n what basis the other dummy persons were brought and were present in TI parade is not forthcoming from the prosecution. There is also no statement that the dummies resembled the accused persons.’ (9.6)

Justice Shah stressed that there was ‘no other evidence, either scientific and/or other, corroborating the prosecution case’. The prosecution had argued that the defendants had consumed liquor at the scene of the crime. Empty bottles, a handi and glasses were seized by police. But no DNA or fingerprints were found that could implicate the defendants. The court noted:

[T]he accused’s DNA samples were collected during the investigation and in fact were sent for DNA analysis, but the prosecution never presented the report to the Court. No pubic hair, DNA, semen or blood of the accused were found on any of the victims. It appears that the samples were collected from the accused and were sent for analysis, but the result did not incriminate the accused. (9.7)

Furthermore, though some cash, jewellery, and other items were stolen by the perpetrators, none of these stolen goods were recovered from the defendants after their arrest. A broken white metal chain was seized during a search of one defendant’s home, and this could conceivably have belonged to one of the victims. But the chain was fairly nondescript and had little or no value. Indeed, M had given no description of the stolen chain to police. That being the case, Justice Shah concluded, it was difficult to draw any inferences whatsoever from the fact that one of the defendants had the chain. (9.8)

The court held that V was ‘not a reliable and trustworth[y] witness’. Her in-court description of the attack, two and a half years after the incident, contained various embellishments upon her earlier statements to police.

The entire description of incident given by [V] in the Court has not been stated by her in her earlier statements. This evidence has come for the first time during the deposition in Court by way of an improvement. In her earlier statements, [V] has never given any details of the assault or the roles played by different persons during the incident. Even in the [identification] parade, she did not attribute any role to the persons she identified. The first time [V] gave any details about the incident or ascribed the roles to the accused persons was two and a half years later in the Court and never before that. Her failure to give any statement to the police and the two magistrates either about the events occurring during the incident or the roles played by different persons render her evidence unreliable. (9.9)

At trial, V maintained that she had given additional information to the investigating officer and magistrates. This claim was not, however, corroborated by their testimony. Even with respect to V’s claims of having been raped, the court found that the absence of forensic evidence made her testimony unreliable. (9.9)

There was a further concern about V’s testimony. Two days after the incident, V was interviewed in the hospital by a Special Executive Magistrate. There, V identified four people from ‘an album of notorious criminals’. None of these people were the defendants. V said nothing about this prior inconsistency in her testimony: ‘[T]o that extent, there is also a suppression of material fact by [V].’ The inconsistency was revealed subsequently in the High Court, and she was recalled. She denied having identified anyone other than the defendants. But this was directly contradicted by the evidence of the Magistrate. (9.10)

More troublingly, there were issues surrounding the conduct of the prosecution, which had failed to disclose V’s initial identification of four other possible perpetrators. This identification was provided shortly after the crime, and should have been given more weight than subsequent identifications. It was unclear whether this alternative theory of the case was ever investigated. Justice Shah issued a number of scathing remarks about the prosecution and the conduct of the Special Executive Magistrate who had interviewed V—and arranged the subsequent line-up in full knowledge that V had identified individuals other than the defendants on an earlier occasion. (11)

On these bases, the Supreme Court overturned the convictions and entered acquittals. (12) Moreover, the court exercised its extraordinary powers under Article 142 of the Constitution of India, directing the State of Maharashtra to pay each of the defendants 500,000 rupees as compensation. (14) It also directed the Chief Secretary, Home Department, State of Maharashtra to investigate the conduct of the officers and officials involved in the case, and take appropriate departmental action. (15.1) Finally, the court ordered the prosecution to ‘conduct further investigation…[of] those four persons who were identified by [V]…from the album of photographs of notorious criminals…immediately after the incident’. (17)