Fair justice for Shiney Ahuja

Shiney Ahuja's Case: Synopsis

• The girl says NO INTERCOURSE TOOK PLACE, LET ALONE RAPE
• The examining doctor does not even give an opinion that there was intercourse, much less rape
• There is NO SEMEN found IN/ON the body of the GIRL or her clothes
• NO BLOOD, NO SEMEN found in ALLEGED PLACE OF OCCURRENCE
• There is NO INJURY on the person of the GIRL
• DNA tests NEGATIVE FOR 5 OUT OF 6 SAMPLES
• For the ONE SAMPLE that DNA tests POSITIVE, PROSECUTION ADMITS that there was NO CHAIN OF CUSTODY of the sample(s) for DNA testing - in other words, there NO WAY TO RULE OUT TAMPERING/CONTAMINATION
• The CCTV footage falsifies Rekha Mane (prosecution's key witness) statement she made before oath on two counts:
  • The GIRL was in perfect condition when she came down - her HAIR was NOT in DISARRAY and her CLOTHES were NOT TORN
  • Rekha goes up and comes down ALONE waiting for the girl downstairs. Rekha did NOT bring the girl down in her arms as claimed by her
• The Court AQUITS Shiney for wrongful confinement and threat

Salient features of the case and points argued by the defense lawyer:

Girl's Statement:

1. The girl has stated on oath that nothing happened on June 14, 2009. She completely denied the story of rape, sexual intercourse or any threat.
2. The girl admits to being in love with Shiney that was one-sided. She admits that she called Shiney 10-15 times one day before the alleged incident, on June 13, 2009.
3. The girl admits that she was happy doing the work in Shiney’s home as she had fallen in love with him
4. The girl admits that she wanted to narrate her feelings for Shiney one night before the alleged incident and so had called him several times
5. The girl admits that she was talking to Vilas R Mahatre between 3:20-3:30pm. The alleged time of rape is between 3.15 and 3.45pm.
6. The girl admits that Shiney’s neighbor – the Gupta’s, incidentally also from the film line, was not on talking terms with Shiney. She admits that Gupta’s took her to the police station where she was made to wait outside for half an hour and the Gupta’s were sitting with the police in a room. She admits that Rekha Mane told her that Gupta Madam has prepared the report and she only has to sign. She admits, therefore, that she signed at the behest of Rekha Mane.
7. Investigating officer has admitted that he did not investigate the Call Data Record of the girl as he did not think it was necessary to do so despite the defense’s specific case that the girl was talking on the phone at the time of the alleged rape. Her Call Data Record was suppressed to gag the truth.
8. The Judge has held that 164 has presumptive value and can be used by the prosecution in spite of several Supreme Court rulings that 164 statements cannot be used as evidence.

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Rekha Mane's Evidence:

1. The crux of Rekha Mane's evidence is that she went up to meet the girl and the girl came out and "garlanded her" and that she her hair was in disarray, clothes torn and lips swollen and that she was not in a position to walk. And, so supporting her, she got the girl down from the lift.
2. The defense has produced CCTV footage of lift lobby, which clearly shows that Rekha goes up the lift and in a few minutes comes down alone, and leaves the lobby walking leisurely without the girl. Thereafter, the girl comes down from the second lift, all alone, her hair neatly combed and tied, duppatta pinned and in order - and she meets Rekha in the lobby.
3. The judge accepts the fact that Rekha has made material improvements about the girls condition and CCTV exposes the falsehood.
4. The Investigating Officer admits that he was aware of the CCTV camera in the lobby and did not find it necessary to collect the footage - although during investigation and bail hearing, the defense had specifically mentioned about the said CCTV footage as well as the several phone calls made by the girl on June 13, 2009 as well as during the time of alleged rape on June 14, 2009

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Medical Expert Evidence:

1. The medical officer who examined Shiney and the girl has not even whispered about sexual intercourse, much less rape, or that the cause of hymen tear was sexual intercourse - although there is a specific column to write such an opinion. Even in his evidence before the court he did not depose a word about the girl having undergone any sexual intercourse much less rape. He also admits two old hymen tears, which are unconnected with any sexual history. The girl is also silent on this hymen tear. The doctor further admits that such tears can be caused accidently or during masturbation. He deposes that there was no injury whatsoever on the girl's body or her private parts, which is inconsistent with the inference drawn by the judge about the alleged resistance offered by the girl although the girl has denied.
2. Further, the judge has drawn an inference from minor abrasions on Shiney's wrist that it must have been from the girl's nails. However, the doctor has stated that the girls nail clippings were taken for DNA analysis by the Chemical Analyzer who found no human blood or tissue and, it tested negative for Shiney's DNA. Further, nail marks are crescent in shape and no such crescent shapes were found on Shiney's wrist. The doctor who is supposed to be an expert on injuries has admitted complete ignorance about the knowledge of even what crescent shape means.
3. The doctor has stated that the Chemical Analyzer took the vulval swab and vaginal swab for detection of blood and semen. Both the swabs tested negative for blood and semen during DNA analysis. Both the swabs tested negative for Shiney's DNA.
4. It transpired during the cross-examination that the vaginal swab mysteriously disappeared, though it was collected and sealed in a separate bottle. The expert could not explain the missing of the vaginal swab.
5. Further, the doctor admitted that the alleged vaginal smear slide, the only slide that tested positive for DNA, was not checked under the microscope for presence of semen or blood. He admitted that the controlled blood sample of the girl that was collected for DNA comparison (matching) with the vaginal smear (to identify that the smear did belong to the girl) was not done on the ground that there was not enough sample for comparison available. The DNA expert, when grilled under cross-examination, had to admit that he could have carried out the DNA analysis of the girl with the vaginal smear slide. The defense had argued that the girl's DNA analysis was not done, as there was serious tampering with the samples by the police. The entire correspondence between Chemical Analyzer and Nagpada police hospital showed serious interpolations on the record and several lapses while carrying out the DNA analysis.
6. The expert has admitted that to rule out the erroneous results, NABL has laid down strict guidelines for and prescribed a protocol for DNA analysis. The expert further admits that these guidelines have not been followed because the Mumbai lab has not been accredited. The judge has specifically recorded a finding that the DNA expert has committed several lapses. However, since the lab is not accredited these precautions need not be taken.
7. DNA evidence is highly scientific in nature and all over the world NABL guidelines are followed to rule out conviction of an innocent person. A person can be sentenced to death on the basis of such DNA analysis and strict compliance of procedure is mandatory. The finding of the judge violates the universal norms of acceptance of DNA evidence. No document, or result of test, graphs etc. have been provided by the expert except the report, which does not contain any reasoning, details of the test conducted or the results of the test. No document was maintained to show in what manner the blood sample was collected, what precautions were taken while collecting the sample or under what conditions the samples were taken to the lab, opened, identified and analyzed by the expert. The samples were required to be preserved at a certain temperature when extracted. In this present case, the doctor who has the samples admits that he kept the samples in the wooden drawer of his table.
8. This entire chain of custody of document is required to be proved by the prosecution all over the world before admitting the DNA evidence in criminal trial. No such documents attempted to be proved or even produced by the prosecution as evidence. This assumes significance when 5 out of 6 DNA samples tested negative during DNA analysis.
9. The judge has committed serious error in holding the DNA report as presumptive value and that the accused has failed to rebut this presumption. In fact, there is no such presumption in law.
10. Further, instead of giving benefit of these lapses to the accused, the Judge has given the benefit to the prosecution, which is unheard of in the history of criminal law.
11. Finally, not a single stain of semen and blood was found on the private parts of the girl or accused, on the girl's clothes or bed. This is totally inconsistent with the prosecution case.

The Judge has refused to consider the evidence which proves the innocence of Shiney and has drawn unwarranted conclusions/inferences in air that are devoid of any legal basis.

Shiney is a victim of perverse and illegal judgment that is unsustainable in law.

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