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SUPREME COURT OF INDIA
S. ABDUL NAZEER, A.S. BOPANNA, V. RAMASUBRAMANIAN, JJ.
Chotkau - Appellant
Versus
State Of Uttar Pradesh - Respondent
Criminal Appeal Nos.361-362 of 2018
Decided on : 28-09-2022
(A) Criminal Procedure Code, 1973 – Section 157 – Despatch of FIR – Delay in forwarding FIR may certainly indicate the failure of one of external checks to determine whether FIR was manipulated later or whether it was registered either to fix someone other than real culprit or to allow real culprit to escape – While every delay in forwarding FIR may not necessarily be fatal to case of prosecution, Courts may be duty bound to see effect of such delay on investigation and even the creditworthiness of investigation – Delay in transmission of FIR to court, may not, per se, be fatal, without anything more – Where ocular evidence is found to be unreliable and unacceptable, long delay has to be taken note of by Court. (Paras 61, 65 and 66)
(B) Indian Penal Code, 1860 – Sections 302 and 376 – Criminal Procedure Code, 1973 – Sections 53, Explanation, 53A and 164A – Rape and murder – Death sentence – Circumstantial evidence – Delay of 5 days in transmitting FIR to jurisdictional court, especially in facts and circumstances of this case was fatal – Despite the fact that it was a shocking case of rape and murder of a six year old girl, prosecution did not care to subject accused-appellant to examination by a Medical Practitioner – In cases where victim of rape is alive and is in a position to testify in court, it may be possible for prosecution to take chance by not medically examining accused – But in cases where victim is dead and offence is sought to be established only by circumstantial evidence, medical evidence assumes great importance – Failure of prosecution to produce such evidence, despite there being no obstacle from accused or anyone, will certainly create a gaping hole in case of prosecution and give rise to a serious doubt on case of prosecution – Failure to obtain report of Forensic Sciences Laboratory on blood/semen stain on Salwar worn by victim, compounds failure of prosecution – Seriously inherent contradictions in statements made by PWs have not been duly taken note of by both courts – When offence is heinous, Court is required to put material evidence under a higher scrutiny – By not conducting investigation properly, prosecution has done injustice to family of victim – By fixing culpability upon appellant without any shred of evidence which will stand scrutiny, prosecution has done injustice to appellant – Court cannot make someone victim of injustice, to compensate for injustice to victim of a crime – Conviction and penalty set aside. (Paras 67, 68, 69, 80, 81, 83, 84 and 85)
Facts of the case:
Convicted for the offences punishable under Sections 302 and 376 of Indian Penal Code, 1860 and sentenced to death by Sessions Court, which was also confirmed by High Court on a reference and an appeal, the sole accused has come up with the above appeals.
Findings of Court:
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 Court of District and Sessions Judge, service of an Advocate was provided as amicus. In cases of such nature, responsibility of Court becomes more onerous.
Result : Appeals allowed.
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 the appellant and Shri Ardhendumauli Kumar Prasad, learned Additional Advocate General for the State of Uttar Pradesh.
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 half-an-hour. 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 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 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 t
(1) Delay in transmission of FIR to court, may not, per se, be fatal, without anything more – Where ocular evidence is found to be unreliable and unacceptable, long delay has to be taken note of by C....
Suspicion cannot replace proof in criminal cases.
Court emphasized the application of circumstantial evidence principles where all links confirmed the appellant's guilt in the kidnapping, sexual assault, and murder of a minor, upholding a death sent....
The mandatory provision of Section 313 CrPC aims to afford the accused an opportunity to explain each and every circumstance and incriminating evidence against them, and failure to comply with this p....
The sufficiency of circumstantial evidence and the need for a complete chain of evidence to establish guilt beyond reasonable doubt.
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