Chotkau vs The State Of Uttar Pradesh

CRIMINAL APPEAL NOs.361­362 OF 2018

CHOTKAU …APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH ...RESPONDENT(S)

JUDGMENT

V. RAMASUBRAMANIAN, J.

1. Convicted for the offences punishable under Sections 302 and

376 of the Indian Penal Code, 1860 (for short “IPC”) and sentenced

to death by the Sessions Court, which was also confirmed by the

High Court on a reference and an appeal, the sole accused has

come up with the above appeals.

2. We have heard Shri S. Nagamuthu, learned senior counsel for Signature Not Verified

the appellant and Shri Ardhendumauli Kumar Prasad, learned Digitally signed by DEEPAK SINGH Date: 2022.09.28 12:50:50 IST Reason:

Additional Advocate General for the State of Uttar Pradesh.

1

3. The case of the prosecution was that on 08.03.2012 at about

20:10 hrs., one Kishun Bahadur, resident of Village Semgarha, P.S

Ikauna, District Shravasti lodged a complaint at Police Station

Ikauna alleging that at about 4:00 p.m on the same day, the

appellant herein took his niece aged about 6 years under the

pretext of showing dance and song performances on the occasion of

the Holi Festival. When the girl did not return home, a search was

conducted. It was found that the appellant was not found in his

house, but the dead body of the girl was found in the sugarcane

field located on the southern side of the village. Another villager by

name Fatehpur Bahadur, who was part of the team that searched

for the missing girl, claimed to have seen the appellant leaving the

sugarcane field after about half­an­hour. Therefore, invoking the

last seen theory and on the basis of circumstantial evidence, the

appellant was charged for the commission of the offences of raping

the minor girl and murdering her.

4. The prosecution examined six witnesses, namely, (i) Kishun

Bahadur, the first informant and the uncle of the victim, as PW­1;

(ii) Shri Raj Karan, a localite who claimed to have seen the

2 appellant carrying the victim towards the sugarcane field and who

was cited as a witness to the inquest, as PW­2; (iii) one Fatehpur

Bahadur, who was part of the search party and who claimed to

have seen the appellant leaving the sugarcane field after about half

an hour, as PW­3; (iv) the Head Constable Balram Tripathi, the

scribe of the First Information Report who registered the FIR, as

PW­4; (v) Dr. Mukesh Kumar who conducted the post­mortem, as

PW­5; and (vi) the Investigation Officer Shri Rambali Roy as PW­6.

5. During questioning under Section 313 of the Code of Criminal

Procedure (hereinafter referred to as the “Code”), the appellant

denied the charges and claimed that he had been falsely implicated

in the case, at the behest of one Mr. Zalim Khan, with a view to

grab the property of his mother, who was none other than Zalim

Khan’s brother’s daughter. To substantiate this claim, the appellant

also examined his mother as DW­1.

6. Holding that the guilt of the appellant stood established

beyond reasonable doubt by circumstantial evidence and also

holding that it is one of the rarest of rare cases where a six year old

girl had been raped and murdered, the Sessions Court convicted

3 the appellant for the offences punishable under Sections 302 and

376 of the IPC and awarded death penalty.

7. The proceedings were then submitted to the High Court under

Section 366(1) of the Code for confirmation. The appellant also filed

an appeal. The capital punishment reference as well as the appeal

filed by the appellant were taken up together by the Division Bench

of the High Court and the High Court confirmed the conviction and

sentence. The High Court came to the said conclusion on the basis

that the evidence of PWs 1 to 3 were trustworthy and that the chain

of circumstances pointing to the guilt of the appellant stood

established unbroken, by their evidence. The discrepancies in the

testimonies of PWs 1 to 3 pointed out by the appellant were rejected

as minor and insignificant. The theory of animosity and false

implication put forth by the appellant and sought to be established

through the evidence of DW­1 were rejected by the High Court. The

High Court found fault with the appellant for not coming up with

any explanation as to what happened to the girl, especially in the

light of the burden cast upon him under Section 106 of the

Evidence Act.

4

8. The arguments of the appellant regarding the delay in sending

the FIR to the Court and the faulty manner in which the

questioning under Section 313 of the Code was done, were rejected

by the High Court and the High Court finally agreed with the

Sessions Court that it is one of the rarest of rare cases where the

appellant has exhibited a deviant behaviour and abnormal sexual

urge, thereby forfeiting his right to life. Accordingly, the High Court

confirmed the death penalty. Under these circumstances, the

accused is on appeal before us.

9. Obviously and admittedly, the prosecution of the appellant is

based on circumstantial evidence and hence we may have to see

whether the chain of circumstances is complete and unbroken. As

held by this Court in Sharad Birdhichand Sarda vs. State of

Maharashtra 1, the Court must keep in mind five golden principles

or the panchsheel, lucidly brought out in para 153 of the decision,

as follows:­

“153. ... ... ...

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

1 (1984) 4 SCC 116

5 … …. …

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

10. In this case, the prosecution sought to establish the guilt of

the appellant, only through the evidence of PWs 1 to 3. PWs 1 and

2 had seen the victim being taken towards the sugarcane field. PW­

3 had seen the appellant taking the victim from the house and also

leaving the sugarcane field half­an­hour later. When the search was

conducted for the missing girl, her dead body was found in the

sugarcane field and the appellant was absconding. On a cumulative

consideration of these circumstances and applying the last seen

theory and invoking the burden of proof cast under Section 106 of

6 the Evidence Act, the Sessions Court and the High Court came to

the conclusion that the appellant was guilty.

11. Assailing the concurrent judgments of the Sessions Court and

the High Court, it was contended by Shri S. Nagamuthu, learned

senior counsel for the appellant that the evidence of PWs 1 to 3 is

untrustworthy; that there was an unexplained delay of five days in

forwarding the FIR to the jurisdictional Court; that there were

serious contradictions regarding the place where the body of the

victim was kept and the place where the inquest was conducted;

that the evidence to support the last seen theory was insufficient to

convict the appellant; that there was complete failure on the part of

the prosecution to examine material witnesses; that in a shocking

abdication of duties, the I.O. failed to produce forensic/medical

evidence; and that the mandatory requirement of Section 313 of the

Code was not fulfilled.

12. However, it was contended by Shri Ardhendumauli Kumar

Prasad, learned AAG for the State that there are no reasons for PWs

1 to 3 to implicate the appellant; that their evidence was found to be

cogent and trustworthy by two Courts; that the delay in forwarding

7 the FIR to the court did not vitiate the trial and did not prejudice

the appellant; that any defect in the questioning under Section 313

of the Code, may not ipso facto vitiate the findings, unless prejudice

is shown; and that the forensic/medical evidence is not always

mandatory.

13. We have carefully considered the rival contentions. In our

view, the questions that crop up for our consideration revolve

around – (i) the trustworthiness of the testimonies of PWs 1 to 3, in

the light of certain contradictions; (ii) the consequences of the delay

on the part of the Police in forwarding the FIR to the Court; (iii) the

failure of the prosecution to produce forensic/medical evidence and

its effect and (iv) the manner in which the questioning under

Section 313 of the Code was undertaken and its effect upon the

findings recorded.

I. Trustworthiness of the testimonies of PWs 1 to 3

14. As we have indicated earlier, the guilt of the appellant is

sought to be established by the prosecution, by (i) relying upon the

8 testimonies of PWs 1 to 3 for invoking the last seen theory; and

(ii) invoking Section 106 of the Evidence Act.

15. It is needless to point out that for the prosecution to

successfully invoke Section 106 of the Evidence Act, they must first

establish that there was “any fact especially within the knowledge of

the” appellant. This can be done by the prosecution only by proving

that the victim was last seen in the company of the appellant. To

establish this last seen theory, the prosecution relies upon the

evidence of PWs 1 to 3. PWs 1 and 2 claim to have seen the

appellant taking away the girl at 04:00 p.m on 08.03.2012. PW­3

claims to have seen the appellant leaving the sugarcane field after

about half­an­hour. Therefore, according to the prosecution, the

burden of showing what happened to the girl was heavily upon the

appellant/accused.

16. Hence we have to see whether the evidence of PWs 1 to 3 was

trustworthy and same proved the last seen theory. Both the

Sessions Court as well as the High Court have found the evidence of

PWs 1 to 3 to be cogent and trustworthy. The contradictions

pointed out by the defence were held by both the Courts to be 9 minor and insignificant. Therefore, being the third Court exercising

jurisdiction under Article 136 of the Constitution, we have to tread

a very careful path while considering the question of

trustworthiness of these witnesses.

17. Unlike other cases, the appellant in this case has taken a

defence right from the beginning that he was implicated falsely at

the behest of a locally powerful person whose wife is the Pradhan of

the village. The case projected by the appellant was (i) that his

maternal grandfather was one Lazim Khan; (ii) that Lazim Khan’s

brother was one Zalim Khan; (iii) that after the death of Lazim

Khan, his property devolved upon the appellant’s mother Jannatul

Nisha; (iv) that Zalim Khan wanted to grab the properties from the

appellant’s mother but the appellant and his mother were not

willing to let the land be taken away by Zalim Khan; and (v) that

since Zalim Khan is a very powerful person in the village and his

wife is also the Pradhan of the village, he managed to implicate the

appellant falsely in this case.

18. To demonstrate the veracity of the above claim, the appellant

did 3 things. First he confronted PWs 1 to 3 with pertinent

10 questions in cross­examination. Then the appellant articulated this

theory in the questioning under Section 313. Third, the appellant

also examined his mother as DW­1.

19. Let us now take note of the answers elicited by the defence

from PW­1 during cross­examination. The relevant portion of the

testimony of PW­1 in cross­examination reads as follows”

“The mother of accused­Jannatul Nisha, was earlier living at Semgarha; now she lives’ at Ikauna. At Ikauna, the mother of accused has kinship in the family of Jumai Pathan. The mother of accused do not have agriculture land in Ikauna. I do not know as to whether she works there as a labourer. At Semgarha, the mother of accused has 28­30 bighas of agriculture land which she had got from the maternal grandfather of the accused. The maternal grandfather of the accused had no son, that’s why the land of accused’s maternal grandfather had transferred in the name of the mother of accused. The name of the maternal grandfather of the accused is Lazim Khan who was resident of Semgarha village only. Lazim Khan is pattidar (relative) of the present Gram­pradhan Zalim Khan. Zalim Khan is very prosperous man. He has 200 bighas of land, 2 tractors, two motorcycles and 4 sons. Zalim Khan has high influence in my village. He has prominence there.

... ... ...

Zalim Khan had come at the spot. Zalim Khan had told to get lodged the F.I.R.

... ... ...

11 Zalim Khan cultivates the land of accused Chotkau.

Zalim Khan has won the court case related with the land. The suit regarding the land is pending before the higher courts. The mother of Chotkau lives at Ikauna after this incident.”

20. After having said what is extracted above during cross­

examination, PW­1 denied certain suggestions made in this regard.

The portion of his testimony where he denied the suggestions is as

follows:

“It is correct to say that no witness has seen Chotkau committing the rape and murder of Uma Devi. It is wrong to say that I had lodged the F.I.R. against Chotkau on being said by Zalim Khan Pradhan. It is wrong to say that we are men of Zalim Khan Pradhan. It is wrong that Zalim Khan Pradhan owes enmity with the mother of Chotkau regarding the land, that’s why Zalim Khan had got lodged the F.I.R. against Chotkau. It is wrong to say that Chotkau had neither committed rape nor the murder of Uma Devi. It is wrong to say that I am submitting false testimony.”

21. Even PW­2 was confronted with specific questions relating to

the alleged role of Zalim Khan in implicating the appellant. The

relevant portion of the cross­examination of PW­2 reads as follows:

“I know the mother of accused Chotkau. Her maternal house is at village Semgarha only and she is daughter of Lazim Khan. Lazim Khan has died. Lazim Khan had no son. After the death of Lazim Khan, Zalim Khan­the present Pradhan, got his land and he only cultivates the land. The mother of accused had not got the land of her father. Lazim Khan and Zalim Khan are real brothers. The land would be about 18­20 bighas.

12 Zalim Khan cultivates the entire land. The mother of Chotkau had fled away from here and living at Ikauna. Chotkau has three brothers including him. All the three of them do not have any land. All the three of them are engaged in the occupation of labourers.”

22. After having said what is extracted above, PW­2 denied the

suggestion that it was Zalim Khan who got the appellant implicated

in the case.

23. Even the Investigation Officer examined as PW­6 admitted in

cross­examination: “I had detected that a land dispute was

proceeding between accused Chotkau and Zalim Khan.”

24. In answer to the last question (Question No.13) during the

questioning under Section 313 of the Code, as to whether he wished

to say anything else, the appellant stated as follows:

“After death of Lazim Khan, his real brother Zalim Khan had usurped all the property of Lazim Khan and expelled the accused. The accused was not leaving possession of the land of his maternal grandfather therefore Zalim Khan implicated him false in this case.”

25. The appellant’s mother examined as DW­1 not only elaborated

the theory that the appellant was falsely implicated at the instance

of Zalim Khan but also came up with a story as to what could have

13 happened to the victim. The relevant portion of the evidence of DW­

1 reads as follows:

“After the death of father, finding me helpless, Zalim Khan gobbled all my property. We have intense enmity with Zalim Khan for the same reason. My son Chotkau and I opposed Zalim Khan in the election of Pradhan and other matters, that is why Zalim Khan implicated my son in this false case. Zalim Khan has falsely implicated my son by making Kishun Bahadur and Rajkaran the complainant and the witness in the said case who are the servants of Zalim Khan. The truth is that the daughter of brother of the complainant of case Kishun Bahadur had gone in the sugar­cane field for defecation, there itself a Markaha (aggressive) Neelgai threw her by its horns, due to which she had died. But giving this matter a different color due to enmity, Zalim Khan got my son implicated as the acused by putting pressure on the local police. We got to know the fact of Uma Devi being killed by the Neelgai when the son of Behna had gone for defecation in the same field and Neelgai had hit him too with its horn due to which his scrotum had ruptured.”

26. Keeping in mind the defence so put up by the appellant, let us

now come to the other portions of the evidence of PWs 1 to 3.

The Mode of Lodging of the FIR

27. On the question as to how the complaint was lodged and as to

what happened immediately thereafter, PW­1 stated in Chief­

examination as follows:

14

“I went to the police station to inform about the incident, got the application written by a man there, got read over the application, marked my signature and handed over the same to the police station. On the same Tehrir my case had been registered.” ...........

“After I handed over the Tehrir, the police went to the spot, performed the documentation regarding the corpse and sent the corpse for post­ mortem. The Investigating Officer had taken my statement and went to the spot. He had prepared the site map on pointing out by me.”

28. During cross­examination, PW­1 said:

“I myself had gone to the police station to lodge the FIR. I had got

written the complaint by a person who was resident of Sitkahna.

The police station officials themselves provided the paper. The

Inspector had asked me to get the FIR written by any person of my

side”.

29. But during further cross­examination PW­1 stated thus:

“I had got written the Tehrir of FIR by another person inside the

police station itself. The Inspector had dictated it and got it written. I

had marked my signature on that.”

15

30. After some time, PW­1 admitted during further cross­

examination the following:

“Zalim Khan had come at the spot. Zalim Khan had told to get lodged

the FIR against Chotkau.”

31. In contra­distinction to what PW­1 said, PW­3 stated that the

“information had been given to police station over telephone,

then police man had come”. During cross­examination also PW­3

stated that police reached the spot upon getting a phone call and

that he did not know who made the call.

32. PW­4, the Head Constable said in Chief Examination:

“On 08.03.2012, I was posted as H.C. at Police Station­Ikauna,

District­Shrawasti. On that day a written Hindi Tahrir had been

submitted by complainant of the case Shri Kishun Bahadur s/o

Chintaram, resident of Semgarha, Police Station­Ikauna, District

Shrawasti.” During cross­examination PW­4 reiterated: “The

complainant of the case had given me a written application. The

complainant of the case had given the Tehrir on 08.03.2012 at 20:10

hrs..”.

16 33. Thus even on the question as to how the first information was

given to the police, there are different versions. According to one

version, “PW­1 went to the police station, got the Tehrir written by a

man there, got read over the complaint, marked his signature and

handed over the same to the police station”. According to the second

version, again by PW­1, “the Inspector dictated it and got it written”.

According to a third version “Zalim Khan had told to get the FIR

registered against the appellant”. According to the fourth version,

which was by PW­3, “the information was given to the police through

phone call”.

34. Thus there were different versions, (i) as to how the first

information was given to the police; and (ii) by whom the complaint

was written.

The place where the dead body was seen by the police, persons took the body from the place of occurrence and where it was taken to.

35. There were several contradictions regarding, (i) the place

where the dead body was first seen by the Police; (ii) the person who

took the dead body; and (iii) the place to which the dead body was

taken. PW­1 stated in chief­examination as follows: 17

“After I handed over the Tehrir, the police went to the spot, performed

the documentation regarding the corpse and sent the corpse for post­

mortem.”

36. In cross­examination PW­1 stated “Despite getting the dead

body, we did not bring the dead body to the home. When police

personnel had come, they got carried the dead body.” During further

cross­examination PW­1 stated: “the dead body was not lying there

for whole night. I will not be able to tell at what time the Inspector

had taken away the dead body. The Inspector had come at half past

seven. He had come in his vehicle. The Inspector had taken away the

dead body in his vehicle.......”

“After consulting from every one the Inspector had taken the dead

body to the police station. He had brought a cloth from the police

station and took away the dead body wrapping it in the same cloth.

Later on we had gone with the dead body.”

37. But a little while later, PW­1 stated in cross­examination:

“when this first information application had been written, the

dead body of the girl was kept inside the police station itself.

18 That time several persons there. The police personnel had carried the

dead body by a Magic (brand of vehicle) to Bahraich for post­

mortem”.

38. PW­3 stated during cross­examination:

“the dead­body of the girl had been sent for post­mortem from the

occurrence spot itself.”

39. PW­4 the Head Constable who registered the FIR said in cross­

examination: “the dead body had not been brought to the police

station.”

40. But interestingly PW­6, the Investigation Officer stated the

following during cross­examination:­

“......After lodging of case, I had visited the occurrence spot same day at 09.00­09.30 o’ clock of the night. It had become dense night when I had reached the spot. The family members were wailing. There was no arrangement of light therefore I stayed there itself in the night with a Daroga and two­three constables. When I had reached the village, upto that time the villagers had already brought the dead body to home from the occurrence spot. Therefore, due to aforesaid reasons I did not go to the occurrence spot in that night. Although I have not referred this fact in my case diary but it is the correct fact. The dead body was kept in front of the door of house of first informant and the family members were wailing there itself...”

41. When confronted with the statements of PWs 1 to 3 to the

effect that the dead body had been taken away to the police station,

19 PW­6 denied the same as wrong. His answer to this question in

cross­examination was as follows: “If the complainant of the case

would have said that the police man had taken away the dead body

of Uma to the police station in the night itself and conducted the

inquest proceeding there, then this fact is wrong.”

42. Thus, there are different versions (i) regarding the place where

the dead body was first seen by the police; and (ii) as to who carried

the dead body and where. The first version of PW­1 was that “he

and other villagers who accompanied him did not bring the dead

body to the house and that when police personnel came, they carried

the dead body”. The second version of PW­1 was the “Inspector took

away dead body in his vehicle to the police station”. His third

version was that “when the first information application had been

written, the dead body of the girl was kept inside the police station

itself”. His fourth version was that “the police personnel had carried

the dead body by a Magic (brand of vehicle) for post mortem”. A new

version was put forth by PW­3 to the effect that the dead body of

the girl was sent for post­mortem from the occurrence spot itself,

meaning thereby that the body was never taken to the police

20 station. PW­4, the Head Constable said that the dead body had not

been brought to the police station. PW­6, the Investigating Officer

categorically stated that the police did not take away the dead body

to the police station and that he saw the dead body near the front

door of the house of the first informant.

43. There was yet another contradiction which is crucial. It was

claimed by PW­1 and confirmed by the others that the police came

to the occurrence spot only after the FIR was lodged. But at one

place of the cross­examination, PW­1 claimed that when the first

information application was written, the dead body of the girl was

kept inside the police station itself. Therefore, it remains a mystery

as to whether the dead body was ever taken to the police station

and if so, how, when and why.

Different versions regarding the Place, Date and Time of conduct of the inquest.

44. There were many discrepancies regarding the place where

inquest was conducted and the date and time at which inquest was

conducted. In his chief­examination PW­2 stated as follows :

21

“…Then searching the girl, family members of Chheddan went towards the sugarcane field and began searching, then they found that the dead body of Uma was lying in the sugarcane field. Blood was coming out of her urinal track, her clothes had torn up and she had died. I also went to the spot. The family members of Chheddan had informed the Police Station, on which the police team of Police Station Ikauna had arrived. They had carried out the inquest proceedings at the spot itself and obtained my signature on the Memo of Inquest. When the Memo of Inquest had been shown and read over to the witness, he said that it was the same Memo of Inquest which had been prepared in my presence and I had market my signature on that which I verify…”

45. Interestingly, PW­2 stated in cross­examination, the opposite

of what he stated in chief­examination. What PW­2 stated in cross­

examination was that “the inquest proceedings on the dead body

of the girl were not performed before me”.

46. PW­6, the Investigation Officer stated in chief­examination as

follows:

“….The inquest proceedings could not be performed due to being night time. On 09.03.12 the inquest proceedings had been completed and the dead body had been sent to District­ Bahraich for postmortem after sealing­stamping the same. Same day I recorded the statement of the complainant on the spot, inspected the spot and recorded the statements of witnesses…”

47. In cross­examination PW­6 reiterated that the inquest

proceedings were not conducted on the same night, but were

22 started at 8 o’ clock in the morning on 09.03.2012. PW­6 claimed

that Raj Karan, Vikram, Pesh Ram, Rameshwar Prasad and Raksha

Ram were deputed as panch for the inquest. Out of these five

panch witnesses, Raj Karan alone was examined as PW­2, but

according to Raj Karan, examined as PW­2, the police arrived at

the spot upon being informed by the family members of

Chheddan and conducted inquest proceedings at the spot itself.

He also claimed that the I.O recorded his statement on the night of

the incident at 7 o’ clock.

48. Out of the five panch witnesses mentioned by the I.O to have

been present at the time of inquest, the names of three persons

were mentioned by PW­1 also, but according to PW­1, the I.O came

to the spot at half past 7’o clock in his vehicle and noted down the

names of four or five persons including that of PW­2, obtained their

signatures and went away.

49. Therefore, there were two versions, regarding the date of

conduct of inquest. According to one version, it was conducted on

the date of the incident namely, 08.03.2012, but according to I.O.,

it was conducted on 09.03.2012. Interestingly the I.O added one

23 more dimension to the contradiction at one stage of the cross­

examination. He claimed that after registering the case he visited

the occurrence spot same day at 9:00­9:30 at night. But

subsequently he claimed as follows: “First I completed the inquest

proceedings and inspected the occurrence spot subsequently, after

two hours of the inquest proceedings on 09.03.2012 itself”.

50. Moreover the inquest ought to have been conducted at the

place where the dead body was found. PW­1 claimed that he did not

bring the dead body to the house and that the police personnel who

had come to the spot, took away the body. But according to PW­6,

the relatives had taken the dead body to the house and that he saw

the dead body only in the house. If that is so, the inquest

proceedings should have been conducted there and not elsewhere.

It is quite strange that PW­6 claimed during cross­examination to

have first completed the inquest and thereafter inspected the

occurrence spot.

Clothes on the body of the victim, recovered by the police.

24

51. According to PW­1 “the victim was clad in frock, brief, salwar

and vest. The frock was red coloured. The brief was green. The

sandow vest was green coloured. The salwar was red coloured as

well.”

52. PW­1 also claimed that “at the place of occurrence, the brief

was torn and lying apart from her limbs”. He also stated that salwar

was lying away from her and that there was blood stain in the

salwar and brief. PW­1 claimed that he had taken the salwar.

53. PW­3 claimed that the police recovered and took away the

salwar of the victim. Interestingly, PW­3 asserted that he went to

the occurrence spot and he found that the victim was wearing a red

colour frock and black colour spotted salwar.

54. The Investigation Officer stated during cross­examination that

the deceased was wearing a brick colour sandow vest and a violet

colour frock on the upper portion of her body. He confirmed that he

recovered the salwar from the occurrence spot and that it was a

green colour salwar. He further stated that though there was blood

on the occurrence spot, no blood was stuck on the green colour

25 salwar. Thus, there were 3 different versions, regarding the colour

of the salwar, one by PW­1 that it was red, the second by PW­3 that

it was black color spotted and the third by PW­6 that it was green

colored. Similarly, there were two different versions regarding the

presence of blood on the salwar, one by PW­1 and another by PW­6.

55. A letter dated 27.03.2012 purportedly sent by the Deputy

Superintendent of Police to the Forensic Sciences Laboratory, which

formed part of the documents submitted by the police, presumably

along with the final report, but which was not marked as Exhibit

indicates that the salwar worn by the deceased, with stains of

semen on it, was one of the few items sent for forensic examination.

But there was no report of the Forensic Sciences Laboratory.

56. Strangely, the aforesaid letter dated 27.03.2012 addressed to

the Forensic Sciences Laboratory, was not sent by the Investigation

Officer but by the Deputy Superintendent of Police.

57. Thus there were very serious contradictions, both mutual and

otherwise, in the evidence tendered by PWs 1 to 3, on crucial

aspects such as, (i) the mode of Lodging of the FIR; (ii) the place

26 where the dead body was first seen by the police, persons took the

body from the place of occurrence and where it was taken to; (iii)

the Place, Date and Time of conduct of the inquest; and (iv) the

clothes on the body of the victim, recovered by the police. These

contradictions make the evidence of PWs 1 to 3 completely

untrustworthy. Unfortunately, the Sessions Court as well as the

High Court have trivialized these major contradictions to hold that

the chain of circumstances have been established unbroken.

II. Delay in transmitting the FIR to court

58. According to the prosecution, the FIR was lodged at 20:10 hrs.

on 08.03.2012. The Court of the CJM, Shravasti, received the copy

of the FIR on 13.03.2012. Therefore, a cloud is sought to be cast on

the genuineness of the FIR.

59. On the importance of promptitude, both in the registration of

the FIR and in the transmission of the same to the Court, reliance

is placed by Shri Nagamuthu, learned senior counsel on the

following passage in Meharaj Singh (L/Nk.) vs. State of U.P2

2 (1994) 5 SCC 188

27 “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante timed and had not been recorded till the inquest proceedings were over at the spot by PW8.”

28

60. While reiterating the above principles, a note of caution was

also added by this Court in Bhajan Singh alias Harbhajan Singh

and Others vs. State of Haryana 3. Paragraphs 28 to 30 of the

said decision read as follows:­

“28. Thus, from the above it is evident that the Criminal Procedure Code provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not anti­timed or anti­ dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section159 Cr.P.C., if so required. Section 159 Cr.P.C. empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction.

29. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been anti­timed or anti­ dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression “forthwith” mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.

30. However, unexplained inordinate delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. An adverse inference

3 (2011) 7 SCC 421

29 may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations. Delay provides legitimate basis for suspicion of the FIR, as it affords sufficient time to the prosecution to introduce improvements and embellishments. Thus, a delay in dispatch of the FIR by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence.”

61. It is clear from the aforesaid decisions that the delay in

forwarding the FIR may certainly indicate the failure of one of the

external checks to determine whether the FIR was manipulated

later or whether it was registered either to fix someone other than

the real culprit or to allow the real culprit to escape. While every

delay in forwarding the FIR may not necessarily be fatal to the case

of the prosecution, Courts may be duty bound to see the effect of

such delay on the investigation and even the creditworthiness of the

investigation.

62. Section 157(1) of the Code requires the officer­in­charge of the

police station to send the FIR, “forthwith”. The legal consequences

of the delay on the part of the police in forwarding the FIR to the

court was considered by this Court in Brahm Swaroop and

30 Another vs. State of Uttar Pradesh4. Incidentally Brahm

Swaroop (supra) is also a case where there was a delay of five days

in sending the report to the Magistrate (as in the present case).

After taking note of several earlier decisions of this Court, this

Court held in Brahm Swaroop in para 21 as follows:

“21. In the instant case, the defence did not put any question in this regard to the investigating officer, Raj Guru (PW.10), thus, no explanation was required to be furnished by him on this issue. Thus, the prosecution had not been asked to explain the delay in sending the special report. More so, the submission made by Shri Tulsi that the FIR was ante­timed cannot be accepted in view of the evidence available on record which goes to show that the FIR had been lodged promptly within 20 minutes of the incident as the Police Station was only 1 k.m. away from the place of occurrence and names of all the accused had been mentioned in the FIR.”

63. To come to the above conclusion, reliance was placed upon a

decision of a three member Bench in Balram Singh and Another

vs. State of Punjab5. In Balram Singh (supra), a three member

Bench of this Court rejected the contention with regard to the delay

in transmitting the FIR to the Magistrate, on the ground that “while

considering the complaint in regard to the delay in the FIR reaching

the Jurisdictional Magistrate, we will have to also bear in mind the 4 (2011) 6 SCC 288 5 (2003) 11 SCC 286

31 creditworthiness of the ocular evidence adduced by the prosecution

and if we find that such ocular evidence is worthy of acceptance, the

element of delay in registering a complaint or sending the same to the

Jurisdictional Magistrate by itself would not weaken the prosecution

case”.

64. In State of Rajasthan vs. Daud Khan6, this Court referred to

Brahm Swaroop and interpreted the word “forthwith” appearing in

Section 157 (1) of the Code, as follows:

“26. … … … The purpose of the “forthwith” communication of a copy of the FIR to the Magistrate is to check the possibility of its manipulation. Therefore, a delay in transmitting the special report to the Magistrate is linked to the lodging of the FIR. If there is no delay in lodging an FIR, then any delay in communicating the special report to the Magistrate would really be of little consequence, since manipulation of the FIR would then get ruled out. Nevertheless, the prosecution should explain the delay in transmitting the special report to the Magistrate. However, if no question is put to the investigating officer concerning the delay, the prosecution is under no obligation to give an explanation. There is no universal rule that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. In other words, the facts and circumstances of a case are important for a decision in this regard.”

65. Therefore, the learned Additional Advocate General for the

State may be right, in theory, that a delay in transmission of the

6 (2016) 2 SCC 607

32 FIR to the court, may not, per se, be fatal, without anything more.

But in the case on hand, the delay was not small. The FIR said to

have been registered on 08.03.2012 was received by the Court of

the Chief Judicial Magistrate on 13.03.2012. It is true that no

question was put in cross­examination to the Investigation Officer

about this delay.

66. But we have found that the evidence of P.Ws. 1 to 3 is

untrustworthy, particularly on the question of the origin and

genesis of the first information report. Therefore the inordinate

delay in the FIR reaching the jurisdictional court assumes

significance. We agree that the word "forthwith' in Section 157(1) of

the Code is to be understood in the context of the given facts and

circumstances of each case and a straight­jacket formula cannot be

applied in all cases. But where ocular evidence is found to be

unreliable and thus unacceptable, a long delay has to be taken note

of by the Court. The mandate of Section 157(1) of the Code

being clear, the prosecution is expected to place on record the

basic foundational facts, such as, the Officer who took the

first information report to the jurisdictional court, the

33 authority which directed such a course of action and the

mode by which it was complied. Explaining the delay is a

different aspect than placing the material in compliance of

the Code.

67. In the present case, it is not even known as to who took the

first information report from P.W.6 or P.W.4 and submitted before

the jurisdictional court. Neither PW­4 nor PW­6 spoke about the

person who took the FIR to the court. They did not say that they

took it to the court. It is not a case of mere delay in sending the first

information report, but one involving the contradictory evidence by

the prosecution witnesses on the manner in which the first

information report is written.

68. On the question of compliance of Section 157(1) along with

logical reasoning for doing so, the following passage from the

decision in Jafarudheen and Ors. vs. State of Kerala 7 may be

usefully quoted as under:

“26. The jurisdictional Magistrate plays a pivotal role during the investigation process. It is meant to make the investigation just and fair. The Investigating Officer is to

7 2022 SCC Online SC 495

34 keep the Magistrate in the loop of his ongoing investigation.

The object is to avoid a possible foul play. The Magistrate has a role to play under Section 159 of Cr.PC.

27. The first information report in a criminal case starts the process of investigation by letting the criminal law into motion. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible ante­dating or ante­timing leading to the insertion of materials meant to convict the accused contrary to the truth and on account of such a delay may also not only gets bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation. However, a mere delay by itself cannot be a sole factor in rejecting the prosecution's case arrived at after due investigation. Ultimately, it is for the Court concerned to take a call. Such a view is expected to be taken after considering the relevant materials."

Therefore, we hold that the delay of 5 days in transmitting the FIR

to the jurisdictional court, especially in the facts and circumstances

of this case was fatal.

III. Failure to conduct medical examination

69. Despite the fact that it was a shocking case of rape and

murder of a six year old girl, the prosecution did not care to subject

the accused (appellant herein) to examination by a medical

practitioner. There were two documents which formed part of the

records submitted along with the final report, but which were not

35 exhibited. One of them appears to be a Memo signed by PW­5, the

Doctor who conducted the post­mortem. This Memo is dated

09.03.2012 addressed to the Senior Pathologist, District Hospital,

Bahraich. The Memo reads as follows:

“Vaginal smear prepared in two slides from the body of Km. Uma D/o Chhedam Lal, R/o Semgadha, PS Ikauna, Dist: Shravasti.”

70. The second is a Report dated 10.03.2012. It reads as follows:­

“Report­ In microscopic examination of supplied specimen, no spermatozoa seem alive or dead. No (unclear) seen.

71. Despite the fact that the author of the Memo dated 09.03.2012

was examined as PW­5, he never spoke about this. The Report of

the Forensic Sciences Laboratory, to whom the salwar was

forwarded, was also not obtained by the Investigating Officer.

72. Section 53(1) of the Code enables a police officer not below the

rank of Sub­Inspector to request a registered medical practitioner,

to make such an examination of the person arrested, as is

reasonably necessary to ascertain the facts which may afford such

evidence, whenever a person is arrested on a charge of committing

an offence of such a nature that there are reasonable grounds for

36 believing that an examination of his person will afford evidence as

to the commission of an offence. Section 53(1) reads as follows:

“53. Examination of accused by medical practitioner at the request of police officer.­ (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub­ inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.”

73. By Act 25 of 2005, a new Explanation was substituted under

Section 53, in the place of the original Explanation. The

Explanation so substituted under Section 53, by Act 25 of 2005

reads as follows:

“Explanation.­In this section and in sections 53A and 54,­

(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

37 (b) "registered medical practitioner" means a medical practitioner who possess any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.”

74. Simultaneously with the substitution of a new Explanation

under Section 53, Act 25 of 2005 also inserted a new provision in

Section 53A. Section 53A reads as follows:

“53A. Examination of person accused of rape by medical practitioner, ­ (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub­inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;

“(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at.

38 (4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in Clause (a) of sub­section (5) of that section.”

75. Even in a case where the victim of rape was alive and testified

before the Court and the accused was also examined by a doctor,

this Court found in Krishan Kumar Malik vs. State of Haryana8

that the failure to obtain the report of the Forensic Sciences

Laboratory was fatal. Paragraph 40 of the said decision reads as

follows:

“40. The appellant was also examined by the doctor, who had found him capable of performing sexual intercourse. In the undergarments of the prosecutrix, male semen were found but these were not sent for analysis in the forensic laboratories which could have conclusively proved, beyond any shadow of doubt with regard to the commission of offence by the appellant. This lacuna on the part of the prosecution proves to be fatal and goes in favour of the appellant.”

76. On the scope of the newly inserted Section 53A, this Court

said in Krishan Kumar Malik (supra) as follows:

“44. Now, after the incorporation of Section 53A in the Criminal Procedure Code, w.e.f. 23.6.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases,

8 (2011) 7 SCC 130

39 facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences.”

77. It is true that a three member Bench of this Court indicated in

Rajendra Pralhadrao Wasnik vs. State of Maharashtra9 that

Section 53A is not mandatory. It was held in paragraphs 49 and 50

of the said decision as follows:­

“49. While Section 53­A CrPC. is not mandatory, it certainly requires a positive decision to be taken. There must be reasonable grounds for believing that the examination of a person will afford evidence as to the commission of an offence of rape or an attempt to commit rape. If reasonable grounds exist, then a medical examination as postulated by Section 53­ A(2) CrPC must be conducted and that includes examination of the accused and description of material taken from the person of the accused for DNA profiling. Looked at from another point of view, if there are reasonable grounds for believing that an examination of the accused will not afford evidence as to the commission of an offence as mentioned above, it is quite unlikely that a charge­sheet would even be filed against the accused for committing an offence of rape or attempt to rape.

50. Similarly, Section 164­A CrPC requires, wherever possible, for the medical examination of a victim of rape. Of course, the consent of the victim is necessary and the person conducting the examination must be competent to medically examine the victim. Again, one of the requirements of the medical 9 (2019) 12 SCC 460

40 examination is an examination of the victim and description of material taken from the person of the woman for DNA profiling.”

78. After saying that Section 53A is not mandatory, this Court

found in paragraph 54 of the said decision that the failure of the

prosecution to produce DNA evidence, warranted an adverse

inference to be drawn. Paragraph 54 reads as follows:­

“54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53­A and Section 164­A CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution.”

79. It is necessary at this stage to note that by the very same

Amendment Act 25 of 2005, by which Section 53A was inserted,

Section 164A was also inserted in the Code. While Section 53A

enables the medical examination of the person accused of rape,

Section 164A enables medical examination of the victim of rape.

Both these provisions are somewhat similar and can be said

41 approximately to be a mirror image of each other. But there are

three distinguishing features. They are:­

(i) Section 164A requires the prior consent of the women who is the victim of rape. Alternatively, the consent of a person competent to give such consent on her behalf should have been obtained before subjecting the victim to medical examination. Section 53A does not speak about any such consent;

(ii) Section 164A requires the report of the medical practitioner to contain among other things, the general mental condition of the women. This is absent in Section 53A;

(iii) Under Section 164A(1), the medical examination by a registered medical practitioner is mandatory when, “it is proposed to get the person of the women examined by a medical expert” during the course of investigation. This is borne out by the use of the words, “such examination shall be conducted”. In contrast, Section 53A(1) merely makes it lawful for a registered medical practitioner to make an examination of the arrested person if “there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence”.

42

80. In cases where the victim of rape is alive and is in a position to

testify in court, it may be possible for the prosecution to take a

chance by not medically examining the accused. But in cases where

the victim is dead and the offence is sought to be established only

by circumstantial evidence, medical evidence assumes great

importance. The failure of the prosecution to produce such

evidence, despite there being no obstacle from the accused or

anyone, will certainly create a gaping hole in the case of the

prosecution and give rise to a serious doubt on the case of the

prosecution. We do not wish to go into the question whether Section

53A is mandatory or not. Section 53A enables the prosecution to

obtain a significant piece of evidence to prove the charge. The

failure of the prosecution in this case to subject the appellant to

medical examination is certainly fatal to the prosecution case

especially when the ocular evidence is found to be not trustworthy.

81. Their failure to obtain the report of the Forensic Sciences

Laboratory on the blood/semen stain on the salwar worn by the

victim, compounds the failure of the prosecution.

43 IV. Argument revolving around section 313 of the Code

82. Though arguments were advanced even on (i) the manner in

which the statement of the accused was recorded under Section

313 of the Code; (ii) the failure of the Court to comply with the

mandate of Section 313(1)(b) of the Code in letter and spirit; and

(iii) the consequences of such failure, we do not think it necessary

to go into the said question. This is for the reason that we have

found in Part­I of this order that the evidence of P.Ws 1 to 3 are not

trustworthy and in Part­III of this order that the failure of the

prosecution to subject the appellant to medical examination was

fatal. These findings are sufficient to overturn the verdict of

conviction and penalty.

Reasoning of the Sessions court and the High Court

83. Before wrapping up, it is necessary to say something about the

approach adopted by the Sessions Court and the High Court. In

cases of this nature the court is obliged to assess the evidence on

the test of probability. Though wide discretion is given to the Court

to consider the “matters before it”, such an evidence has to be sifted

44 carefully before recording satisfaction. It is not the quantum, but

what matters is the quality. Both the Courts below found the

evidence of P.Ws. 1 to 3 acceptable. The seriously inherent

contradictions in the statements made by them have not been duly

taken note of by both the courts. When the offence is heinous, the

Court is required to put the material evidence under a higher

scrutiny. On a careful consideration of the reasoning of the Trial

Court, as confirmed by the High Court, we find that sufficient care

has not been taken in the assessment of the statements made by

P.Ws. 1 to 3. No one spoke as to who sent the FIR to the court and

when it was sent. Strangely even the copy of the post­mortem report

was admittedly received by SHO on the 13.03.2012 though the post

mortem was conducted on the 09.03.2012,. It was the same date on

which the FIR reached the Court. These factors certainly create a

strong suspicion on the story as projected by the prosecution, but

both the Courts have overlooked the same completely. This

erroneous approach on the part of the Sessions Court and the High

Court has led to the appellant being ordained to be dispatched to

the gallows.

45 Conclusion

84. We cannot shy away from the fact that it is a ghastly case of

rape and murder of a 6 year old child. By not conducting the

investigation properly, the prosecution has done injustice to the

family of the victim. By fixing culpability upon the appellant without

any shred of evidence which will stand the scrutiny, the prosecution

has done injustice to the appellant. Court cannot make someone, a

victim of injustice, to compensate for the injustice to the victim of a

crime.

85. In fact this is a case where the appellant is so poor that he

could not afford to engage a lawyer even in the Sessions Court.

After his repeated requests to the Court of District and Sessions

Judge, the service of an advocate was provided as amicus. In cases

of such nature, the responsibility of the Court becomes more

onerous. When we analyse the evidence with such a sense of

responsibility, we are not convinced that the guilt of the appellant

stood established beyond reasonable doubt. Therefore, the appeals

46 are allowed and the conviction and penalty are set aside. The

appellant shall be released forthwith if not wanted in connection

with any other case.

…………………………….J. (S. Abdul Nazeer)

…………………………….J. (A.S. Bopanna)

…………………………….J. (V. Ramasubramanian)

NEW DELHI SEPTEMBER 28, 2022

47