The division judge bench of Justice S. Abdul Nazeer, Justice A.S. Bopanna and Justice V. Ramasubramanian in the case of Chotkau Vs State of Uttar Pradesh held that the Court cannot make someone, a victim of injustice, to compensate for the injustice to the victim of a crime.
BRIEF FACTS
The factual matrix of the case is that the appellant took the complainant’s niece of 6 years under the pretext of showing dance and song performances at the Holi festival but after some time when they found that she hasn’t returned yet. The search was conducted, and the girl’s dead body was found in the sugarcane field. Another villager, 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 based on circumstantial evidence, the appellant was charged for the commission of the offenses of raping the minor girl and murdering her. The session court sentenced the appellant to death which was further confirmed by the high court.
The learned senior counsel appearing on behalf of the appellant contended that the evidence of PW 1-3 is not trustworthy and even, and there was an unexplained delay of five days in forwarding the FIR to the jurisdictional court. It was also submitted that the evidence which duly supports the last seen theory was insufficient to convict the appellant and there is a complete failure on the part of the prosecution to examine material witnesses. At last, it was contended that the I.O failed to produce forensic/medical evidence.
The learned counsel appearing on behalf of the state has contended that there are no grounds for PWs 1-3 to accuse the appellant; two Courts found their testimony to be credible and reliable; the trial was not tainted by the FIR's late delivery to the court; any improper questioning under Section 313 of the Code does not necessarily invalidate the findings unless prejudice is demonstrated, and forensic and medical evidence is not always required.
CONSIDERATIONS BEFORE THE HON’BLE COURT
- The trustworthiness of the testimonies of PW 1-3, in light of certain circumstances.
- Consequences of the delay on the part of the police in forwarding the FIR to the court.
- The failure of the prosecution to produce forensic/medical evidence and its effect.
- The manner in which the questioning under section 313 of the code was undertaken and its effect upon the findings recorded.
COURT’S OBSERVATION
TRUSTWORTHINESS OF THE TESTIMONIES OF THE PWs 1 TO 3
The hon’ble court held that 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 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.
DELAY IN TRANSMITTING THE FIR TO THE COURT
The hon’ble court relied upon the judgments titled Brahm Swaroop and Another vs. State of Uttar Pradesh, Balram Singh and Another vs. State of Punjab, State of Rajasthan vs. Daud Khan, and Jafarudheen and Ors. vs. State of Kerala.
The hon’ble apex court observed 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 is 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 authority which directed such a course of action and the mode by which it complied. Explaining the delay is a different aspect than placing the material in compliance with the Code. Therefore, the court held 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.
FAILURE TO CONDUCT MEDICAL EXAMINATION
The hon’ble court held that 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 serious doubt in 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. 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.
The hon’ble supreme court finds that 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. Therefore, the hon’ble court set aside the penalty and the conviction imposed upon the accused.
Case name- Chotkau Vs State of Uttar Pradesh
Citation- CRIMINAL APPEAL NOs.361362 OF 2018\
Corum- Justice S. Abdul Nazeer, Justice A.S. Bopanna and Justice V. Ramasubramanian
Date- 28.09.22
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