‘Sapne mein shamshaan dikhta tha’

Prakash Nishad is 38 The last time he was at his Siddharth Nagar home with family he was 25 He doesnrsquot have a job and is not quite sure how he is going to make ends meet Yet the most powerful emotion he feels he tells midday over a telephone call is gratitude ldquoNaya jeevan mil gaya hai I have found new liferdquo he says As clicheacuted as that line may be nothing else comes close to summarising his circumstance On May 19 this year after 13 years of incarceration and eight years of waiting to be hanged Nishad was cleared of all charges by the Supreme Court of India And just like that he was freeNishad was at workmdashhe was helper in a steel products factorymdashwhen a team from the Thane Rural Policersquos Local Crime Branch whisked him away on June 13 2010 He was accused of the rape and murder of a sixyearold girlThe minor stayed with her parents in Bhayander and had gone missing while playing outside her home the previous day Hours later her body was found in an uncovered drain A post mortem examination confirmed sexual assault before murder The Bhayander police registered an FIR The LCB was instructed to conduct parallel inquiries due to the serious and sensitive nature of the crimeldquoI didnrsquot even know the girlrdquo Nishad recalls admitting though that he lived in the same chawl as the familyAdv Pratiksha Basarkar Adv Rishad Ahmed Chowdhury Justice B R Gavai Justice Vikram Nath and Justice Sanjay KarolNishad didnrsquot see the world outside prison for the next 13 years After police custody expired he was sent to judicial custody and was lodged in Thane Central jail The case went to trial and in 2014 he was convicted and sentenced to death by the Thane Sessions Court He approached the Bombay High Court to appeal the HC upheld the conviction as well as his death sentence He was subsequently transferred to the Yerawada Central Jail in PuneldquoAs soon as I was able to I arranged for pictures of Lord Shiva Goddess Parvati and Lord Ganesh and pasted them on the wall of my cell Every day Irsquod pray to them It was my only source of strengthrdquo says Nishad who requested his family not to visit him ldquoI knew what it was doing to them seeing me like this especially with the death penalty confirmed I had no wish to turn a knife in their woundrdquoA year later in 2015 members of Project 39A a criminal justice research and litigation centre that is part of the National Law University in Delhi visited Yerawada When they learned of Nishadrsquos case they expressed their interest in representing himThe appeal was filed the same year with Project 39A briefing senior advocate Mr B H Marlapalle who took the case on in the Supreme Court Meanwhile Delhibased advocate Rishad Ahmed Chowdhury was the advocate on record for Nishad in the SCldquoWe studied the case and found that there wasnrsquot a lot of evidence against Nishad The entire case was only based broadly on three things Firstly the police had claimed that they had found blood stained articles such as a towel and a mat at his house before his arrest However there was no evidence at all that the room belonged to Nishad or that he lived there Details of the room such as room number were also unclear Second some clothes were said to be found based on Nishadrsquos statement from the same room However the police had already searched his entire housemdasha small room in a chawl measuring 85 feet by 65 feet the bathroom being 25 feet by 25 feet once before for several hours and found nothing Three days after his arrest they went back again and returned with the clothesrdquo says advocate Pratiksha Basarkar of Project 39A What made this evidence further unreliable was that Nishadrsquos statement was recorded in Marathimdasha language he did not understand and was not explained to him in HindildquoBesides the police claimed that his DNA was found on the victim But there is no reliable evidence record of Nishad having been medically examined which is a requirement for a person accused of rape Nor is there any document to state that his samples were ever takenrdquo says BasarkarAnother piece of evidence presented by the prosecution she adds was the fact that the victimrsquos father had expressed suspicion towards Nishad The father however said in his deposition that he only started suspecting Nishad after the police arrested him ldquoSo why was Nishad suspected in the first place This is a complete mysteryrdquo Basarkar saysThe gaps in the investigation were laid before the SC and earlier this month in a rare instance the Supreme Court overturned the Sessions Court and Bombay High Court verdicts taking the view that the lower courts were swayed by the horrific nature of the crimeldquoThe Supreme Court rigorously scrutinised the evidence and found it entirely inadequate to support a conviction The judgment also highlighted multiple illegalities in the investigation We are seeing a significant number of cases where death sentences upheld by High Courts are being set aside by the Supreme Court often through outright acquittalsrdquo Chowdhury observesThe Bench comprising Justices BR Gavai Vikram Nath and Sanjay Karol minced no words in their order while announcing the verdict ldquoIt is true that the unfortunate incident did take place and the prosecutrix sustained multiple injuries on her body and surely must have suffered great pain agony and trauma At the tender age of six a life for which much was in store in the future was terrifyingly destroyed and extinguished The parents of the prosecutrix suffered an unfathomable loss a wound for which there is no remedy Despite such painful realities being part of this case we cannot hold within law the prosecution to have undergone all necessary lengths and efforts to take the steps necessary for driving home the guilt of the appellant and that of none else in the crimerdquo the order statedFor Nishad what mattered was that his innocence was proven And he had one more shot to see his ageing parents and four siblings ldquoThe tears didnrsquot stop for longrdquo says Nishad who reached his ancestral home in Siddharth Nagar Basti division of Uttar Pradesh after the formalities of his release were completed ldquoEspecially after the death penalty was announced sapne mein shamshaan dikhta tha I kept seeing a cremation ground I still do sometimes It will take a while for the nightmares to subside Hum gareeb aadmi hain Humko utna hi bolna chahiye jitni hamari pahonch hairdquo he says about the injustice he enduredEven as he struggles to free himself from the past Nishad isnrsquot scared of plotting a future ldquoIrsquom trying to find the job of a driver People rent their cars out for long distance trips and Irsquom talking to some of them If that doesnrsquot work out my family has been urging me to learn how to make mithaai and set up shop hererdquo he saysA return to Mumbai will be emotionally taxing he knows but Nishad is a realist ldquoItrsquos a question of livelihood If nothing works out Irsquoll have to give Mumbaianother shotrdquoFor now though the priority is to let the scars heal ldquoIrsquove been home for seven days but my younger brother still follows me around wherever I go He hasnrsquot let me out of his sightrdquo