A three judges bench of the Supreme Court comprising of Justice S Abdul Nazeer, AS Bopanna, and V Ramasubramanian, acquitted an accused who was sentenced to death by the Sessions Court and confirmed by the Allahabad High Court giving strong remarks that the prosecution (Police) has done injustice to the accused/appellant. The Court held that the "Court cannot make someone, a victim of injustice, to compensate for the injustice to the victim of a crime".

The special bench of three judges of the Apex Court hearing the death sentence case observed that it was a case of circumstantial evidence and in such cases, medical evidence plays a vital role to bring the guilt of the accused home.

The allegations against the accused were under sections 302 and 376 IPC having a prosecution story that on 08.03.2012 one Kishan Bahadur lodged a report that the appellant took his niece aged about 6 years under the pretext of showing dance and son performance on the occasion of Holi. When the girl did not return home, a search was conducted. It was also found on that day that the accused/appellant was also not found at home and the dead body of the girl was found on the sugarcane farm in the village. one of the person who was searching for the girl claimed that he had seen the girl in the company of the appellant. The appellant was charged invoking the theory of last seen.

A total of Six witnesses were examined in the matter and under 313 statement the accused stated that "the 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 DW­-1"

The Apex Court altogether framed four issues to examine the entire case which are as follows:-

(i) the trustworthiness of the testimonies of PWs 1 to 3, inthe 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.

Deciding the first issue the court held that "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 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.

Deciding the Second Issue the Court held "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."

Deciding the third issue the court held that "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 a 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 Court added.

The Court remarked "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."

Deciding the Forth Issue the Court held that "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."

Acquitting the accused, the Court took serious note of the conduct of the prosecution and the manner of the investigation was conducted.

Case Details:-

CRIMINAL APPEAL NOs.361­362 OF 2018 CHOTKAU       …APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH       ...RESPONDENT(S)

Read the Complete judgment on the following Link:-

https://main.sci.gov.in/supremecourt/2017/40989/40989_2017_4_1501_38733_Judgement_28-Sep-2022.pdf