CHOTKAU VERSUS STATE OF UTTAR PRADESH

CHOTKAU VERSUS STATE OF UTTAR PRADESH

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.361­362 OF 2018
CHOTKAU       …APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH       ...RESPONDENT(S)
J U D G M E N T
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
the   appellant   and   Shri   Ardhendumauli   Kumar   Prasad,   learned
Additional Advocate General for the State of Uttar Pradesh.
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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
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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
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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.
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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
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… …. …
(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. PW3 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
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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
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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
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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
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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
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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.
... ... ...
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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   crossexamination, 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.
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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
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happened to the victim. The relevant portion of the evidence of DW1 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   Chiefexamination as follows: 
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“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 postmortem.  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.”  
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30. After   some   time,   PW­1   admitted   during   further   crossexamination 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..”.
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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: 
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“After I handed over the Tehrir, the police went to the spot, performed
the documentation regarding the corpse and sent the corpse for postmortem.”
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.
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That time several persons there. The police personnel had carried the
dead   body   by   a   Magic   (brand   of   vehicle)   to   Bahraich   for   postmortem”.  
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 crossexamination: “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,
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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 crossexamination 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 crossexamination. 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 antidated. 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   antidated   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  Kerala7
  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 subinspector, 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
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