Where's the Evidence?
How lapses in investigation landed
a migrant labourer on death row in India
This story is part of our ongoing coverage of the torment faced by prisoners first sentenced to death, and freed years later by a higher court. As we continue to bring you these reports, we need your help. Become a member – and support our journalism.
(Trigger Warning: Graphic details of investigation in a rape case)
On a sweltering afternoon in June, Prakash Nishad (37) is frying samosas at his newly opened shop in Uttar Pradesh's Siddharth Nagar.
As he sits surrounded by family, the smoke from the frying pan and the fragrance of samosas waft through the air.
The summer air is sticky, but not enough to mar the sense of relief Nishad is experiencing in the moment. As The Quint reaches out to him, he picks up the phone borrowed from his brother, and says:
"I am relieved to be back home after so long. Ab ghabrahat nahi hoti (I am no longer constantly anxious).”
Only a few weeks ago, he came back home after spending 13 years in Maharashtra's Yerawada Central jail. Nearly eight and a half of those were spent on death row after a trial court convicted him for the rape and murder of a six-year-old girl.
On 19 May 2023, the Supreme Court ordered his release.
“Numerous lapses blot the entire map. The larger picture emerging therefrom being that the person (i.e. the actual murderer in the case), whomsoever they may have been, remains unpunished to this day,” a bench of Justices BR Gavai, Vikram Nath and Sanjay Karol noted (emphasis added).
What was the case about? What exactly were the lapses? Why was Prakash Nishad arrested? Whose fault is all of this?
We attempt to answer through this multimedia immersive.
In June 2010, a six-year-old girl left her home in a Mumbai chawl after dinner and never returned. The next morning, her family found her dead in a gutter near their house.
The girl’s uncle, who later became a prosecution witness along with the parents, told the court that when the girl did not come back that night, he thought that perhaps she had gone to the neighbour’s house to watch television.
But the next morning, a neighbour, whom he did not name, told him that the girl was lying dead in a gutter. An FIR was registered on the same day against an “unidentified person,” which also said that she had been sexually assaulted before being killed.
A day later, the police arrested Prakash from his workplace (a steel factory in Mumbai) on charges of rape (376), murder (302) and destruction of evidence (201) of the Indian Penal Code.
The evidence against Prakash was all circumstantial, the Supreme court noted, while acquitting him. There were no eyewitnesses to the crime.
Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact.
For example, if a suspect is seen running away from a murder scene with a weapon in hand, it may be circumstantial evidence, at best, of him having committed the murder.
This contrasts with direct evidence, which directly proves the fact in question, without needing inference.
For example, an eyewitness who testifies to seeing a suspect shoot the victim is direct evidence.
According to the prosecution:
- Nishad allegedly lived in the same chawl as the girl
- He was purportedly found near the scene of the crime
- When in police custody, he made two disclosure statements based on which the police said they found "incriminating objects" from his house and another place where he was accused to have hidden the clothes belonging to him and the girl
- The DNA reports claimed that the victim’s blood was found on Prakash’s vest and that the semen on the victim’s clothes and vaginal smear slide matched his semen
Loopholes & Lapses
1) His Disclosure Statements
Since eyewitness accounts or direct evidence was lacking, Nishad's alleged disclosure statements to the police, which later reportedly helped them retrieve the alleged incriminating evidence, became his main link to the crime.
These statements were recorded in Marathi. But, as pointed out by the Project 39A team that worked on his case, Prakash Nishad, a migrant labourer from Uttar Pradesh, only speaks Hindi.
Moreover, after recording the statements, the investigating officer did not explain the contents of it to him even though it was written in a language that was alien to him, the court order noted.
2) The Search At His Alleged House
On 13 June 2010, when the police conducted their first search – which lasted for two hours – at what they said was Nishad’s house, they found some household articles. What they did not find then, however, were the clothes that became implicating evidence in the case.
But after Nishad’s statements were recorded post his arrest, they went again on 16 June and retrieved the clothes.
Further, the court pointed out that the house in question was just a small room measuring 8.5 feet x 6.5 feet, so how did the officers not find the articles during the first search?
"The police party in the absence of the appellant (Prakash Nishad) had microscopically scanned the said room, and yet could not find any material," the court said.
3) The Alleged House
First, Prakash Nishad’s statement did not mention the exact location of the house, the judgment said.
Second, when different witnesses were cross-examined, they came up with different locations of the house.
According to the prosecution, when the officers did go there, they found out that there were two other people living there.
The court expressed shock that none of these people had been examined during the investigation.
4) The Victim’s Clothes
The prosecution’s claims regardings the girl’s underclothing, including that it had Nishad’s semen on it, were marred with contradictions too.
While one witness said the underclothing was seized on 13 June, the other said they found it on 16 June. Additionally, while one said it was on the roof of the house, the other said that the girl was wearing it when her body was found.
5) The DNA Reports
There were several inconsistencies with the DNA reports too.
His lawyers argued that the integrity of the vaginal slide and the DNA results was highly suspect because the vaginal fluid swab collected during postmortem did not yield any male DNA.
Moreover, the girl’s DNA was not found on the samples collected from Nishad.
The court also took note of the “unexplained delay” in sending the DNA samples for investigation since it may have led to contamination.
“There is nothing on record to establish as to who took such samples, on what date, on how many occasions, and why were they not sent all at once, we notice that none of the police officials have testified to the formalities of keeping the samples safe and secure being complied with (sic),” the court further added.
Key Questions Arise
- Nishad’s statement led them to the allegedly incriminating evidence, but why was it recorded in Marathi?
- Nishad is said to have lived in a small room - then why was no recovery of the clothes made on the first day, and why were items only found after he allegedly confessed?
- Why was no one able to establish that the room where articles were found was, in fact, his? And, why did different witnesses identify different rooms as his, during the cross examination?
- If the underclothing was essential evidence, why did different witnesses testify to having seen it at different places?
- Why did samples from Nishad’s body have no DNA from the girl?
- If the postmortem report said that the vaginal fluid swab did not have male DNA, how did the vaginal slide suddenly match with Nishad’s?
13 Years in Prison
During the 13 years Prakash Nishad spent in prison, including eight and a half on death row – his health worsened. What happened to Nishad? Listen in.
“Mujhe diabetes ki bimari hai…mera muh tedha ho jata tha (I have diabetes and my face would become lopsided,” he said.
The team that worked on his case pointed out that whenever they spoke to him, they sensed despondency.
“There was a lot of hopelessness and moments of just feeling done with the system,” Pratiksha Basarkar, a senior litigation associate at Project 39A, told The Quint.
However, his faith in his innocence was unwavering.
"Maine kuch nahi kiya tha…Main jaanta bhi nahi tha uss parivar ko...mujhe case ke baare mein kuch nahi pata tha (I did not do it. I did not even know the family. I knew nothing about the case),” he claimed to The Quint.
It was only five years after his arrest that he chanced upon members of Project 39A, and sought their help after he found out that they worked on death penalty cases. And they took the case to the Supreme Court in 2015.
Eight years later, the top court concluded the hearing in March 2023 and ordered his release in May.
The Big Picture
While there is little clarity on how exactly Nishad, a migrant labourer from the OBC community, got embroiled in this, experts The Quint spoke to pointed out that it is those with the least amount of resources that get caught up in faulty investigations like these.
“Prakash was a migrant labourer from a marginalised caste, who came to Mumbai in search of a better life. His case is a direct comment on how our criminal justice system, mired in delays and scapegoating, fails the most marginalised,” Yashaswini Basu, a Bengaluru-based lawyer, told The Quint.
In fact, only last year, a bench led by CJI DY Chandrachud had said something similar in a slightly different case.
While directing the Uttar Pradesh government to consider the premature release of 512 convicts undergoing life imprisonment (Rashidul Jafar @ Chota vs The State Of Uttar Pradesh), the top court noted:
“Their poverty, illiteracy and disabilities occasioned by long years of incarceration are compounded by the absence of supportive social and legal structures.”
“The promise of equality in our Constitution would not be fulfilled if liberty were to be conditional on an individual’s resources, which unfortunately many of these cases provide hard evidence of. This situation must change and hence this court has had to step in,” it added.
Numbers too seem to suggest this. A Project 39A report from 2016 that dived deep into the social profiles of death row inmates, pointed out that OBC prisoners made up nearly 33.3% and SC/ST prisoners made up 23.6 % of death row inmates in 2016. In contrast, the number of ‘general’ category death row prisoners stood at 23.1%.
The Buck Stops With...?
Even though the investigation in the case was faulty, the Bombay High Court and the trial court (which had formerly heard the case) had not picked up on the lapses, the team of lawyers working on Nishad's case pointed out.
While upholding his death sentence, the Bombay High Court said that the “society today, especially after the Nirbhaya case, seeks tough punishment for those who sexually assault women.”
However, listen in to what Shreya Rastogi, the Director of Death Penalty Litigation at Project 39A, said:
“If we are really a society that is moved by the rising sexual violence against women and children and we want to do something about that, then we need to better our investigative processes and we need to make sure that these kind of lapses don't occur again.”
Apart from the apparent injustice meted out to Prakash, what of the girl and her family?
“Will they now reopen and re-investigate a case like this? Who is going to be held accountable for what happened to the girl? That still remains the lingering question.” Rastogi pointed out.
“Holding someone accountable without adequate investigation in the name of justice, ends up causing even more injustice,” she added.