CHOTKAU versus STATE OF UTTAR PRADESH

[2022] 9 S.C.R. 601

CHOTKAU

STATE OF UTTAR PRADESH

(Criminal Appeal No.361-362 of 2018)

SEPTEMBER 28, 2022

[S. ABDUL NAZEER, A. S. BOPANNA AND V.RAMASUBRAMANIAN, JJ.]

Penal Code, 1860: ss.376, 302 – Rape and murder –Conviction for, and death sentence by courts below – Challenged –Held: There were very serious contradictions in the evidencetendered by prosecution witnesses on crucial aspects which madethem completely untrustworthy – Sessions Court as well as the HighCourt trivialized the major contradictions to hold that the chain ofcircumstances was established unbroken – Delay of five days intransmitting the FIR to the jurisdictional court was fatal – Failureof the prosecution to subject the accused to medical examinationwhen ocular evidence is untrustworthy was certainly fatal –Conviction and sentence set aside – Code of Criminal Procedure,1973 – ss.366, 313, 157, 53, 53A – Evidence Act,1872 – s.106.

FIR: Delay in forwarding FIR to jurisdictional Court – Effecton prosecution case – Held: While every delay in forwarding theFIR may not necessarily be fatal to the case of the prosecution,Courts may be duty bound to see the effect of such delay on theinvestigation and even the creditworthiness of the investigation –The word “forthwith’ in s.157(1) of the Code is to be understood inthe context of the given facts and circumstances of each case and astraight-jacket formula cannot be applied in all cases – But whereocular evidence is found to be unreliable and thus unacceptable, along delay has to be taken note of by the Court – Delay of five daysin transmitting the FIR to the jurisdictional court, especially in thefacts and circumstances of the present case was fatal – Code ofCriminal Procedure, 1973 – s.157(1).

Code of Criminal Procedure, 1973: s.53A – Relevance ofmedical examination of rape accused in cases based oncircumstantial evidence – In cases where the victim of rape is aliveand is in position to testify in court, it may be possible for the

EFGH

Aprosecution to take chance by not medically examining the accused– But in cases where the victim is dead and the offence is sought tobe established only by circumstantial evidence, medical evidenceassumes great importance – Failure of prosecution to producesuch evidence, despite there being no obstacle from the accusedor anyone, will certainly create gaping hole in the case ofBthe prosecution and give rise to serious doubt on the case of theprosecution – s.53A enables the prosecution to obtain significantpiece of evidence to prove the charge – Failure of the prosecutionin the instant case to subject the appellant to medical examinationis certainly fatal to the prosecution case especially when theCocular evidence is found to be not trustworthy.Code of Criminal Procedure, 1973: Difference between s.64Aand s.53A – Discussed.

Allowing the appeals, the Court

HELD : 1. Trustworthiness of the testimonies of PWs 1 toD3: There were very serious contradictions, both mutual andotherwise, in the evidence tendered by PWs 1 to 3, on crucialaspects such as, (i) the mode of Lodging of the FIR; (ii) the placewhere the dead body was first seen by the police, persons tookthe body from the place of occurrence and where it was taken to;E(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 completelyuntrustworthy. The Sessions Court as well as the High Courthave trivialized these major contradictions to hold that the chainFof circumstances have been established unbroken. [Para 57][620-D-E]2.1 Delay in transmitting the FIR to court: The delay inforwarding the FIR may certainly indicate the failure of one ofthe external checks to determine whether the FIR wasGmanipulated later or whether it was registered either to fixsomeone other than the real culprit or to allow the real culprit toescape. While every delay in forwarding the FIR may notnecessarily be fatal to the case of the prosecution, Courts maybe duty bound to see the effect of such delay on the investigationand even the creditworthiness of the investigation. This CourtH

have found that the evidence of P.Ws. 1 to 3 is untrustworthy,particularly on the question of the origin and genesis of the firstinformation report. Therefore, the inordinate delay in the FIRreaching the jurisdictional court assumes significance. The word“forthwith’ in Section 157(1) of the Code is to be understood inthe context of the given facts and circumstances of each case anda straight-jacket formula cannot be applied in all cases. But whereocular evidence is found to be unreliable and thus unacceptable,a long delay has to be taken note of by the Court. The mandateof Section 157(1) of the Code being clear, the prosecution isexpected to place on record the basic foundational facts, such as,the Officer who took the first information report to thejurisdictional court, the authority which directed such courseof action and the mode by which it was complied. Explaining thedelay is different aspect than placing the material in complianceof the Code. [Para 61 & 66][622-H; 623-A-B; 624-G; 625-A-B]

2.2 In the present case, it is not even known as to whotook the first information report from P.W.6 or P.W.4 andsubmitted before the jurisdictional court. Neither PW4 nor PW6spoke about the person who took the FIR to the court. They didnot say that they took it to the court. It is not case of meredelay in sending the first information report, but one involvingthe contradictory evidence by the prosecution witnesses on themanner in which the first information report is written. Therefore,delay of 5 days in transmitting the FIR to the jurisdictional court,especially in the facts and circumstances of this case was fatal.[Paras 67 & 68][625-C; 626-B-C]

3.1 Failure to conduct medical examination: Section 53(1)of the Code enables police officer not below the rank of Sub-Inspector to request registered medical practitioner, to makesuch an examination of the person arrested, as is reasonablynecessary to ascertain the facts which may afford such evidence,whenever person is arrested on charge of committing anoffence of such nature that there are reasonable grounds forbelieving that an examination of his person will afford evidenceas to the commission of an offence. [Para 72][626-G-H]

A3.2 By Amendment Act 25 of 2005, by which Section 53Awas inserted, Section 164A was also inserted in the Code. WhileSection 53A enables the medical examination of the personaccused of rape, Section 164A enables medical examination ofthe victim of rape. Both these provisions are somewhat similarand can be said approximately to be mirror image of eachBother. But there are three distinguishing features. They are:-

(i) Section 164A requires the prior consent of thewomenwho is the victim of rape. Alternatively, the consent of aperson competent to give such consent on her behalf should havebeen obtained before subjecting the victim to medicalCexamination. Section 53A does not speak about any such consent;

(ii) Section 164A requires the report of the medicalpractitioner to contain among other things, the general mentalcondition of the women. This is absent in Section 53A;D(iii) Under Section 164A(1), the medical examination by aregistered medical practitioner is mandatory when, “it is proposedto get the person of the women examined by medical expert”during the course of investigation. This is borne out by the useof the words, “such examination shall be conducted”. In contrast,Section 53A(1) merely makes it lawful for registered medicalEpractitioner to make an examination of the arrested person if“there are reasonable grounds for believing that an examinationof his person will afford evidence as to the commission of suchoffence”. [Para 79][630-F-H; 631-A-C]

3.2 In cases where the victim of rape is alive and is in aFposition to testify in court, it may be possible for the prosecutionto take chance by not medically examining the accused. But incases where the victim is dead and the offence is sought to beestablished only by circumstantial evidence, medical evidenceassumes great importance. The failure of the prosecution toGproduce such evidence, despite there being no obstacle fromthe accused or anyone, will certainly create gaping hole in thecase of the prosecution and give rise to serious doubt on thecase of the prosecution. The Court does not wish to go into thequestion whether Section 53A is mandatory or not. Section 53Aenables the prosecution to obtain significant piece of evidenceH

to prove the charge. The failure of the prosecution in this caseto subject the appellant to medical examination is certainly fatalto the prosecution case especially when the ocular evidence isfound to be not trustworthy. [Para 80][631-D-F]

4. Though arguments were advanced even on (i) the mannerin which the statement of the accused was recorded under Section313 of the Code; (ii) the failure of the Court to comply with themandate of Section 313(1)(b) of the Code in letter and spirit; and(iii) the consequences of such failure, we do not think it necessaryto go into the said question. This is for the reason that we havefound in Part-I of this order that the evidence of P.Ws 1 to 3 arenot trustworthy and in Part-III of this order that the failure of theprosecution to subject the appellant to medical examination wasfatal. These findings are sufficient to overturn the verdict ofconviction and penalty. [Para 82][631-G-H; 632-A]

Sharad Birdhichand Sarda v. State of MaharashtraD(1984) 4 SCC 116 : [1985] 1 SCR 88; Meharaj Singh(L/Nk.) v. State of U.P (1994) 5 SCC 188 : [1994] 3SCR 592; Bhajan Singh alias Harbhajan Singh andOthers v. State of Haryana (2011) 7 SCC 421 : [2011]7 SCR 1; Brahm Swaroop and Another v. State of UttarPradesh (2011) 6 SCC 288 : [2010] 15 SCR 1; BalramESingh and Another v. State of Punjab (2003) 11 SCC286; State of Rajasthan v. Daud Khan (2016) 2 SCC607 : [2015] 13 SCR 1131; Jafarudheen and Ors. v.State of Kerala 2022 SCC Online SC 495; KrishanKumar Malik v. State of Haryana (2011) 7 SCC 130 :F[2011] 8 SCR 774; Rajendra Pralhadrao Wasnik v.State of Maharashtra (2019) 12 SCC 460 : [2018] 14SCR 585 – relied on.

[2022] 9 S.C.R.

BCRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 361-362 of 2018.

From the Judgment and Order dated 18.04.2016 of the High Courtof Judicature at Allahabad, Lucknow Bench in Capital Sentence No.4of 2014 and Criminal Appeal No. 570 of 2014.

S. Nagamuthu, Sr. Adv., Ms. Shivani Misra, Harsh Parashar,Chanakya Sharma, Ms. Chetna Bhargava, D. S. Vairawan,R. Sudhakaran, G. R. Vikash, Subrahmanya Bhanu, Advs. for theAppellant.

Ardhendumauli Kumar Prasad, AAG, Parmanand Pandey,DMs. Shreya Srivastava, Ashish Madaan, Ms. Ananya Sahu, Aman SinghBhadauria, Utkarsh Pandey, Advs. for the Respondent.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. Convicted for the offences punishable under Sections 302 and376 of the Indian Penal Code, 1860 (for short “IPC”) and sentenced todeath by the Sessions Court, which was also confirmed by the HighCourt on reference and an appeal, the sole accused has come up withthe above appeals.F2. We have heard Shri S. Nagamuthu, learned senior counsel forthe appellant and Shri Ardhendumauli Kumar Prasad, learned AdditionalAdvocate General for the State of Uttar Pradesh.

3. The case of the prosecution was that on 08.03.2012 at about20:10 hrs., one Kishun Bahadur, resident of Village Semgarha, P.S Ikauna,GDistrict Shravasti lodged complaint at Police Station Ikauna allegingthat at about 4:00 p.m on the same day, the appellant herein took hisniece aged about 6 years under the pretext of showing dance and songperformances on the occasion of the Holi Festival. When the girl did notreturn home, search was conducted. It was found that the appellantwas not found in his house, but the dead body of the girl was found in theH

sugarcane field located on the southern side of the village. Another villagerby name Fatehpur Bahadur, who was part of the team that searched forthe missing girl, claimed to have seen the appellant leaving the sugarcanefield after about half-an-hour. Therefore, invoking the last seen theoryand on the basis of circumstantial evidence, the appellant was chargedfor the commission of the offences of raping the minor girl and murderingher.

4. The prosecution examined six witnesses, namely, (i) KishunBahadur, the first informant and the uncle of the victim, as PW-1; (ii)Shri Raj Karan, localite who claimed to have seen the appellant carryingthe victim towards the sugarcane field and who was cited as witnessto the inquest, as PW-2; (iii) one Fatehpur Bahadur, who was part of thesearch party and who claimed to have seen the appellant leaving thesugarcane field after about half an hour, as PW-3; (iv) the Head ConstableBalram Tripathi, the scribe of the First Information Report who registeredthe FIR, as PW-4; (v) Dr. Mukesh Kumar who conducted the post-mortem, as PW-5; and (vi) the Investigation Officer Shri Rambali Royas PW-6.

5. During questioning under Section 313 of the Code of CriminalProcedure (hereinafter referred to as the “Code”), the appellant deniedthe charges and claimed that he had been falsely implicated in the case,at the behest of one Mr. Zalim Khan, with view to grab the property ofhis mother, who was none other than Zalim Khan’s brother’s daughter.To substantiate this claim, the appellant also examined his mother asDW-1.

6. Holding that the guilt of the appellant stood established beyondreasonable doubt by circumstantial evidence and also holding that it isone of the rarest of rare cases where six year old girl had been rapedand murdered, the Sessions Court convicted the appellant for the offencespunishable under Sections 302 and 376 of the IPC and awarded deathpenalty.

7. The proceedings were then submitted to the High Court underSection 366(1) of the Code for confirmation. The appellant also filed anappeal. The capital punishment reference as well as the appeal filed bythe appellant were taken up together by the Division Bench of the HighCourt and the High Court confirmed the conviction and sentence. TheHigh Court came to the said conclusion on the basis that the evidence of

APWs 1 to 3 were trustworthy and that the chain of circumstances pointingto the guilt of the appellant stood established unbroken, by their evidence.The discrepancies in the testimonies of PWs 1 to 3 pointed out by theappellant were rejected as minor and insignificant. The theory of animosityand false implication put forth by the appellant and sought to be establishedthrough the evidence of DW-1 were rejected by the High Court. TheBHigh Court found fault with the appellant for not coming up with anyexplanation as to what happened to the girl, especially in the light of theburden cast upon him under Section 106 of the Evidence Act.

8. The arguments of the appellant regarding the delay in sendingthe FIR to the Court and the faulty manner in which the questioningCunder Section 313 of the Code was done, were rejected by the HighCourt and the High Court finally agreed with the Sessions Court that it isone of the rarest of rare cases where the appellant has exhibited deviantbehaviour and abnormal sexual urge, thereby forfeiting his right to life.Accordingly, the High Court confirmed the death penalty. Under theseDcircumstances, the accused is on appeal before us.

9. Obviously and admittedly, the prosecution of the appellant isbased on circumstantial evidence and hence we may have to see whetherthe chain of circumstances is complete and unbroken. As held by thisCourt in Sharad Birdhichand Sarda vs. State of Maharashtra[1], theECourt must keep in mind five golden principles or the panchsheel, lucidlybrought out in para 153 of the decision, as follows:-

“153. ......

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

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

(3)the circumstances should be of conclusive nature andtendency,

(4)they should exclude every possible hypothesis except theone to be proved, and H1 (1984) 4 SCC 116

(5)there must be chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that inall human probability the act must have been done by theaccused.”

10. In this case, the prosecution sought to establish the guilt of theappellant, only through the evidence of PWs 1 to 3. PWs 1 and 2 hadseen the victim being taken towards the sugarcane field. PW-3 had seenthe appellant taking the victim from the house and also leaving thesugarcane field half-an-hour later. When the search was conducted forthe missing girl, her dead body was found in the sugarcane field and theappellant was absconding. On cumulative consideration of thesecircumstances and applying the last seen theory and invoking the burdenof proof cast under Section 106 of the Evidence Act, the Sessions Courtand the High Court came to the conclusion that the appellant was guilty.11. Assailing the concurrent judgments of the Sessions Court andthe High Court, it was contended by Shri S. Nagamuthu, learned seniorcounsel 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 FIRto the jurisdictional Court; that there were serious contradictions regardingthe place where the body of the victim was kept and the place wherethe inquest was conducted; that the evidence to support the last seentheory was insufficient to convict the appellant; that there was completefailure on the part of the prosecution to examine material witnesses;that in shocking abdication of duties, the I.O. failed to produce forensic/medical evidence; and that the mandatory requirement of Section 313of the Code was not fulfilled.

12. However, it was contended by Shri Ardhendumauli KumarPrasad, learned AAG for the State that there are no reasons for PWs 1to 3 to implicate the appellant; that their evidence was found to be cogentand trustworthy by two Courts; that the delay in forwarding the FIR tothe court did not vitiate the trial and did not prejudice the appellant; thatany defect in the questioning under Section 313 of the Code, may notipso facto vitiate the findings, unless prejudice is shown; and that theforensic/medical evidence is not always mandatory.

13. We have carefully considered the rival contentions. In ourview, the questions that crop up for our consideration revolve around –

A(i) the trustworthiness of the testimonies of PWs 1 to 3, in the light ofcertain contradictions; (ii) the consequences of the delay on the part ofthe Police in forwarding the FIR to the Court; (iii) the failure of theprosecution to produce forensic/medical evidence and its effect and (iv)the manner in which the questioning under Section 313 of the Code wasundertaken and its effect upon the findings recorded.B

I. Trustworthiness of the testimonies of PWs 1 to 3

14. As we have indicated earlier, the guilt of the appellant is soughtto be established by the prosecution, by (i) relying upon the testimoniesof PWs 1 to 3 for invoking the last seen theory; and (ii) invoking SectionC106 of the Evidence Act.

15. It is needless to point out that for the prosecution to successfullyinvoke Section 106 of the Evidence Act, they must first establish thatthere was “any fact especially within the knowledge of the” appellant.This can be done by the prosecution only by proving that the victim wasDlast seen in the company of the appellant. To establish this last seentheory, the prosecution relies upon the evidence of PWs 1 to 3. PWs 1and 2 claim to have seen the appellant taking away the girl at 04:00 p.mon 08.03.2012. PW-3 claims to have seen the appellant leaving thesugarcane field after about half-an-hour. Therefore, according to theprosecution, the burden of showing what happened to the girl was heavilyEupon the appellant/accused.

16. Hence we have to see whether the evidence of PWs 1 to 3was trustworthy and same proved the last seen theory. Both the SessionsCourt as well as the High Court have found the evidence of PWs 1 to 3to be cogent and trustworthy. The contradictions pointed out by theFdefence were held by both the Courts to be minor and insignificant.Therefore, being the third Court exercising jurisdiction under Article 136of the Constitution, we have to tread very careful path while consideringthe question of trustworthiness of these witnesses.

17. Unlike other cases, the appellant in this case has taken defenceGright from the beginning that he was implicated falsely at the behest of alocally powerful person whose wife is the Pradhan of the village. Thecase projected by the appellant was (i) that his maternal grandfatherwas one Lazim Khan; (ii) that Lazim Khan’s brother was one ZalimKhan; (iii) that after the death of Lazim Khan, his property devolvedupon the appellant’s mother Jannatul Nisha; (iv) that Zalim Khan wantedH

to grab the properties from the appellant’s mother but the appellant andhis mother were not willing to let the land be taken away by Zalim Khan;and (v) that since Zalim Khan is very powerful person in the villageand his wife is also the Pradhan of the village, he managed to implicatethe appellant falsely in this case.

18. To demonstrate the veracity of the above claim, the appellantdid 3 things. First he confronted PWs 1 to 3 with pertinent questions incross-examination. Then the appellant articulated this theory in thequestioning under Section 313. Third, the appellant also examined hismother as DW-1.

19. Let us now take note of the answers elicited by the defencefrom PW-1 during cross-examination. The relevant portion of thetestimony of PW-1 in cross-examination reads as follows”

“The mother of accused-Jannatul Nisha, was earlier living atSemgarha; now she lives’ at Ikauna. At Ikauna, the mother ofaccused has kinship in the family of Jumai Pathan. The mother ofaccused do not have agriculture land in Ikauna. I do not know asto whether she works there as labourer. At Semgarha, the motherof accused has 28-30 bighas of agriculture land which she hadgot from the maternal grandfather of the accused. The maternalgrandfather of the accused had no son, that’s why the land ofaccused’s maternal grandfather had transferred in the name ofthe mother of accused. The name of the maternal grandfather ofthe accused is Lazim Khan who was resident of Semgarha villageonly. Lazim Khan is pattidar (relative) of the present Gram-pradhan Zalim Khan. Zalim Khan is very prosperous man. Hehas 200 bighas of land, 2 tractors, two motorcycles and 4 sons.Zalim Khan has high influence in my village. He has prominencethere.

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

Zalim Khan cultivates the land of accused Chotkau. Zalim Khanhas won the court case related with the land. The suit regarding

Athe land is pending before the higher courts. The mother of Chotkaulives at Ikauna after this incident.”

20. After having said what is extracted above during cross-examination, PW-1 denied certain suggestions made in this regard. Theportion of his testimony where he denied the suggestions is as follows:B

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

21. Even PW-2 was confronted with specific questions relating toDthe alleged role of Zalim Khan in implicating the appellant. The relevantportion of the cross-examination of PW-2 reads as follows:

“I know the mother of accused Chotkau. Her maternal house isat village Semgarha only and she is daughter of Lazim Khan.Lazim Khan has died. Lazim Khan had no son. After the death ofELazim Khan, Zalim Khan-the present Pradhan, got his land andhe only cultivates the land. The mother of accused had not got theland of her father. Lazim Khan and Zalim Khan are real brothers.The land would be about 18-20 bighas. Zalim Khan cultivates theentire land. The mother of Chotkau had fled away from here andliving at Ikauna. Chotkau has three brothers including him. All theFthree of them do not have any land. All the three of them areengaged in the occupation of labourers.”

22. After having said what is extracted above, PW-2 denied thesuggestion that it was Zalim Khan who got the appellant implicated inthe case.G23. Even the Investigation Officer examined as PW-6 admitted incross-examination: “I had detected that land dispute was proceedingbetween accused Chotkau and Zalim Khan.”

24. In answer to the last question (Question No.13) during thequestioning under Section 313 of the Code, as to whether he wished toHsay anything else, the appellant stated as follows:

“After death of Lazim Khan, his real brother Zalim Khan hadusurped all the property of Lazim Khan and expelled the accused.The accused was not leaving possession of the land of his maternalgrandfather therefore Zalim Khan implicated him false in thiscase.”

25. The appellant’s mother examined as DW-1 not only elaboratedthe theory that the appellant was falsely implicated at the instance ofZalim Khan but also came up with story as to what could have happenedto the victim. The relevant portion of the evidence of DW-1 reads asfollows:

“After the death of father, finding me helpless, Zalim Khan gobbledall my property. We have intense enmity with Zalim Khan for thesame reason. My son Chotkau and I opposed Zalim Khan in theelection of Pradhan and other matters, that is why Zalim Khanimplicated my son in this false case. Zalim Khan has falselyimplicated my son by making Kishun Bahadur and Rajkaran thecomplainant and the witness in the said case who are the servantsof Zalim Khan. The truth is that the daughter of brother of thecomplainant of case Kishun Bahadur had gone in the sugar-canefield for defecation, there itself Markaha (aggressive) Neelgaithrew her by its horns, due to which she had died. But giving thismatter different color due to enmity, Zalim Khan got my sonimplicated as the acused by putting pressure on the local police.We got to know the fact of Uma Devi being killed by the Neelgaiwhen the son of Behna had gone for defecation in the same fieldand Neelgai had hit him too with its horn due to which his scrotumhad ruptured.”

26. Keeping in mind the defence so put up by the appellant, let usnow 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 towhat happened immediately thereafter, PW-1 stated in Chief-examinationas follows:

“I went to the police station to inform about the incident, gotthe application written by man there, got read over theapplication, marked my signature and handed over the same

[2022] 9 S.C.R.

to the police station. On the same Tehrir my case had beenregistered.”

...........

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

28. During cross-examination, PW-1 said:

“I myself had gone to the police station to lodge the FIR. Ihad got written the complaint by person who was residentof Sitkahna. The police station officials themselves providedthe paper. The Inspector had asked me to get the FIR writtenby any person of my side”.

D29. But during further cross-examination PW-1 stated thus:

“I had got written the Tehrir of FIR by another person insidethe police station itself. The Inspector had dictated it and gotit written. I had marked my signature on that.”

30. After some time, PW-1 admitted during further cross-Eexamination the following:

“Zalim Khan had come at the spot. Zalim Khan had told to getlodged the FIR against Chotkau.”

31. In contra-distinction to what PW-1 said, PW-3 stated that the“information had been given to police station over telephone, thenFpolice man had come”. During cross-examination also PW-3 statedthat police reached the spot upon getting phone call and that he did notknow who made the call.

32. PW-4, the Head Constable said in Chief Examination:

“On 08.03.2012, I was posted as H.C. at Police Station-Ikauna, District-Shrawasti. On that day written Hindi Tahrirhad been submitted by complainant of the case Shri KishunBahadur s/o Chintaram, resident of Semgarha, Police Station-Ikauna, District Shrawasti.” During cross-examination PW-4reiterated: “The complainant of the case had given me written

application. The complainant of the case had given the Tehriron 08.03.2012 at 20:10 hrs..”.

33. Thus even on the question as to how the first information wasgiven to the police, there are different versions. According to one version,“PW-1 went to the police station, got the Tehrir written by manthere, got read over the complaint, marked his signature and handedover the same to the police station”. According to the second version,again by PW-1, “the Inspector dictated it and got it written”. Accordingto third version “Zalim Khan had told to get the FIR registeredagainst the appellant”. According to the fourth version, which was byPW-3, “the information was given to the police through phone call”.

34. Thus there were different versions, (i) as to how the firstinformation was given to the police; and (ii) by whom the complaint waswritten.

The place where the dead body was seen by the police, personstook the body from the place of occurrence and where it wastaken to.

35. There were several contradictions regarding, (i) the place wherethe dead body was first seen by the Police; (ii) the person who took thedead body; and (iii) the place to which the dead body was taken. PW-1stated in chief-examination as follows:

“After I handed over the Tehrir, the police went to the spot,performed the documentation regarding the corpse and sentthe corpse for post-mortem.”

36. In cross-examination PW-1 stated “Despite getting the deadbody, we did not bring the dead body to the home. When policepersonnel had come, they got carried the dead body.” During furthercross-examination PW-1 stated: “the dead body was not lying therefor whole night. I will not be able to tell at what time the Inspectorhad taken away the dead body. The Inspector had come at halfpast seven. He had come in his vehicle. The Inspector had takenaway the dead body in his vehicle.......”

“After consulting from every one the Inspector had taken thedead body to the police station. He had brought cloth fromthe police station and took away the dead body wrapping itin the same cloth. Later on we had gone with the dead body.”

A37. But little while later, PW-1 stated in cross-examination:

“when this first information application had been written, thedead body of the girl was kept inside the police station itself.That time several persons there. The police personnel hadcarried the dead body by Magic (brand of vehicle) toBBahraich for post-mortem”.

38. PW-3 stated during cross-examination:

“the dead-body of the girl had been sent for post-mortem fromthe occurrence spot itself.”

C39. PW-4 the Head Constable who registered the FIR said incross-examination: “the dead body had not been brought to the policestation.”

40. But interestingly PW-6, the Investigation Officer stated thefollowing during cross-examination:-

D“......After lodging of case, I had visited the occurrence spot sameday at 09.00-09.30 o’ clock of the night. It had become densenight when I had reached the spot. The family members werewailing. There was no arrangement of light therefore I stayedthere itself in the night with Daroga and two-three constables.When I had reached the village, upto that time the villagersEhad already brought the dead body to home from theoccurrence spot. Therefore, due to aforesaid reasons I did notgo to the occurrence spot in that night. Although I have not referredthis fact in my case diary but it is the correct fact. The deadbody was kept in front of the door of house of first informantFand the family members were wailing there itself...”

41. When confronted with the statements of PWs 1 to 3 to theeffect that the dead body had been taken away to the police station,PW-6 denied the same as wrong. His answer to this question in cross-examination was as follows: “If the complainant of the case wouldGhave said that the police man had taken away the dead body ofUma to the police station in the night itself and conducted the inquestproceeding there, then this fact is wrong.”

42. Thus, there are different versions (i) regarding the place wherethe dead body was first seen by the police; and (ii) as to who carried theHdead body and where. The first version of PW-1 was that “he and

other villagers who accompanied him did not bring the dead bodyto the house and that when police personnel came, they carried thedead body”. The second version of PW-1 was the “Inspector tookaway dead body in his vehicle to the police station”. His third versionwas 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 thedead body by Magic (brand of vehicle) for post mortem”. newversion was put forth by PW-3 to the effect that the dead body of thegirl was sent for post-mortem from the occurrence spot itself, meaningthereby that the body was never taken to the police station. PW-4, theHead Constable said that the dead body had not been brought to thepolice station. PW-6, the Investigating Officer categorically stated thatthe police did not take away the dead body to the police station and thathe saw the dead body near the front door of the house of the firstinformant.43. There was yet another contradiction which is crucial. It wasclaimed by PW-1 and confirmed by the others that the police came tothe occurrence spot only after the FIR was lodged. But at one place ofthe cross-examination, PW-1 claimed that when the first informationapplication was written, the dead body of the girl was kept inside thepolice station itself. Therefore, it remains mystery as to whether thedead body was ever taken to the police station and if so, how, when andwhy.

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

44. There were many discrepancies regarding the place whereinquest was conducted and the date and time at which inquest wasconducted. In his chief-examination PW-2 stated as follows :

“…Then searching the girl, family members of Chheddan wenttowards the sugarcane field and began searching, then they foundthat the dead body of Uma was lying in the sugarcane field. Bloodwas coming out of her urinal track, her clothes had torn up andshe had died. I also went to the spot. The family members ofChheddan had informed the Police Station, on which the policeteam of Police Station Ikauna had arrived. They had carriedout the inquest proceedings at the spot itself and obtained

Amy signature on the Memo of Inquest. When the Memo ofInquest had been shown and read over to the witness, he said thatit was the same Memo of Inquest which had been prepared in mypresence and I had market my signature on that which I verify…”

45. Interestingly, PW-2 stated in cross-examination, the oppositeBof what he stated in chief-examination. What PW-2 stated in cross-examination was that “the inquest proceedings on the dead body of

the girl were not performed before me”.

46. PW-6, the Investigation Officer stated in chief-examinationas follows:

“….The inquest proceedings could not be performed due to beingnight time. On 09.03.12 the inquest proceedings had beencompleted and the dead body had been sent to District-Bahraich for postmortem after sealing-stamping the same. Sameday I recorded the statement of the complainant on the spot,Dinspected the spot and recorded the statements of witnesses…”

47. In cross-examination PW-6 reiterated that the inquestproceedings were not conducted on the same night, but were started at8 o’ clock in the morning on 09.03.2012. PW-6 claimed that Raj Karan,Vikram, Pesh Ram, Rameshwar Prasad and Raksha Ram were deputedEas panch for the inquest. Out of these five panch witnesses, RajKaran alone was examined as PW-2, but according to Raj Karan,examined as PW-2, the police arrived at the spot upon beinginformed by the family members of Chheddan and conductedinquest proceedings at the spot itself. He also claimed that the I.Orecorded his statement on the night of the incident at 7 o’ clock.F

48. Out of the five panch witnesses mentioned by the I.O tohave been present at the time of inquest, the names of three personswere mentioned by PW-1 also, but according to PW-1, the I.O came tothe spot at half past 7’o clock in his vehicle and noted down the namesof four or five persons including that of PW-2, obtained their signaturesGand went away.

49. Therefore, there were two versions, regarding the date ofconduct of inquest. According to one version, it was conducted on thedate of the incident namely, 08.03.2012, but according to I.O., it wasconducted on 09.03.2012. Interestingly the I.O added one more dimensionHto the contradiction at one stage of the cross-examination. He claimed

that after registering the case he visited the occurrence spot same dayat 9:00-9:30 at night. But subsequently he claimed as follows: “First Icompleted the inquest proceedings and inspected the occurrencespot subsequently, after two hours of the inquest proceedings on09.03.2012 itself”.

50. Moreover the inquest ought to have been conducted at theplace where the dead body was found. PW-1 claimed that he did notbring the dead body to the house and that the police personnel who hadcome to the spot, took away the body. But according to PW-6, therelatives had taken the dead body to the house and that he saw the deadbody only in the house. If that is so, the inquest proceedings should havebeen conducted there and not elsewhere. It is quite strange that PW-6claimed during cross-examination to have first completed the inquestand thereafter inspected the occurrence spot.

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

51. According to PW-1 “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 colouredas well.”

52. PW-1 also claimed that “at the place of occurrence, thebrief was torn and lying apart from her limbs”. He also stated thatsalwar was lying away from her and that there was blood stain in thesalwar and brief. PW-1 claimed that he had taken the salwar.

53. PW-3 claimed that the police recovered and took away thesalwar of the victim. Interestingly, PW-3 asserted that he went to theoccurrence spot and he found that the victim was wearing red colourfrock and black colour spotted salwar.

54. The Investigation Officer stated during cross-examination thatthe deceased was wearing brick colour sandow vest and violet colourfrock on the upper portion of her body. He confirmed that he recoveredthe salwar from the occurrence spot and that it was green coloursalwar. He further stated that though there was blood on the occurrencespot, no blood was stuck on the green colour salwar. Thus, therewere 3 different versions, regarding the colour of the salwar, one byPW-1 that it was red, the second by PW-3 that it was black color spottedand the third by PW-6 that it was green colored. Similarly, there were

Atwo different versions regarding the presence of blood on the salwar,one by PW-1 and another by PW-6.

55. letter dated 27.03.2012 purportedly sent by the DeputySuperintendent of Police to the Forensic Sciences Laboratory, whichformed part of the documents submitted by the police, presumably alongBwith the final report, but which was not marked as Exhibit indicates thatthe salwar worn by the deceased, with stains of semen on it, was one ofthe few items sent for forensic examination. But there was no report ofthe Forensic Sciences Laboratory.

56. Strangely, the aforesaid letter dated 27.03.2012 addressed toCthe Forensic Sciences Laboratory, was not sent by the InvestigationOfficer but by the Deputy Superintendent of Police.

57. Thus there were very serious contradictions, both mutual andotherwise, in the evidence tendered by PWs 1 to 3, on crucial aspectssuch as, (i) the mode of Lodging of the FIR; (ii) the place where theDdead body was first seen by the police, persons took the body from theplace of occurrence and where it was taken to; (iii) the Place, Date andTime of conduct of the inquest; and (iv) the clothes on the body of thevictim, recovered by the police. These contradictions make the evidenceof PWs 1 to 3 completely untrustworthy. Unfortunately, the SessionsCourt as well as the High Court have trivialized these major contradictionsEto 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 20:10hrs. on 08.03.2012. The Court of the CJM, Shravasti, received the copyFof the FIR on 13.03.2012. Therefore, cloud is sought to be cast on thegenuineness of the FIR.

59. On the importance of promptitude, both in the registration ofthe FIR and in the transmission of the same to the Court, reliance isplaced by Shri Nagamuthu, learned senior counsel on the followingpassage in Meharaj Singh (L/Nk.) vs. State of U.P[2]G

“12. FIR in criminal case and particularly in murder case is avital and valuable piece of evidence for the purpose of appreciatingthe evidence led at the trial. The object of insisting upon promptlodging of the FIR is to obtain the earliest information regarding

H2 (1994) 5 SCC 188

the circumstance in which the crime was committed, includingthe names of the actual culprits and the parts played by them, theweapons, if any, used, as also the names of the eye witnesses, ifany. Delay in lodging the FIR often results in embellishment, whichis creature of an after thought. On account of delay, the FIR notonly gets bereft of the advantage of spontaneity, danger also creepsin of the introduction of coloured version or exaggerated story.With view to determine whether the FIR, was lodged at thetime it is alleged to have been recorded, the courts generally lookfor certain external checks. One of the checks is the receipt ofthe copy of the FIR, called special report in murder case, bythe local Magistrate. If this report is received by the Magistratelate it can give rise to an inference that the FIR was not lodged atthe time it is alleged to have been recorded, unless, of course theprosecution can offer satisfactory explanation for the delay indespatching or receipt of the copy of the FIR by the localMagistrate. Prosecution has led no evidence at all in this behalf.The second external check equally important is the sending of thecopy of the FIR along with the dead body and its reference in theinquest report. Even though the inquest report, preparedunder Section 174 Cr. P.C., is aimed at serving statutory function,to lend credence to the prosecution case, the details of the FIRand the gist of statements recorded during inquest proceedingsget reflected in the report. The absence of those details is indicativeof the fact that the prosecution story was still in embryo state andhad not been given any shape and that the FIR came to be recordedlater on after due deliberations and consultations and was thenante timed to give it the colour of promptly lodged FIR. In ouropinion, on account of the infirmities as noticed above, the FIRhas lost its value and authenticity and it appears to us that thesame has been ante timed and had not been recorded till the inquestproceedings were over at the spot by PW8.”

60. While reiterating the above principles, note of caution wasalso added by this Court in Bhajan Singh alias Harbhajan Singh andOthers vs. State of Haryana[3]. Paragraphs 28 to 30 of the said decisionread as follows:-

3 (2011) 7 SCC 421

“28. Thus, from the above it is evident that the Criminal ProcedureCodeprovides for internal and external checks: one of them beingthe receipt of copy of the FIR by the Magistrate concerned. Itserves the purpose that the FIR be not anti-timed or anti-dated.The Magistrate must be immediately informed of every seriousoffence so that he may be in position to act under Section159Cr.P.C., if so required. Section 159Cr.P.C. empowers theMagistrate to hold the investigation or preliminary enquiry of theoffence either himself or through the Magistrate subordinate tohim. This is designed to keep the Magistrate informed of theinvestigation so as to enable him to control investigation and, ifnecessary, to give appropriate direction.

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

30. However, unexplained inordinate delay in sending the copy ofFIR to the Magistrate may affect the prosecution case adversely.An adverse inference may be drawn against the prosecution whenthere are circumstances from which an inference can be drawnFthat there were chances of manipulation in the FIR by falselyroping in the accused persons after due deliberations. Delayprovides legitimate basis for suspicion of the FIR, as it affordssufficient time to the prosecution to introduce improvements andembellishments. Thus, delay in dispatch of the FIR by itself isGnot circumstance which can throw out the prosecution’s case inits entirety, particularly when the prosecution furnishes cogentexplanation for the delay in dispatch of the report or prosecutioncase itself is proved by leading unimpeachable evidence.”

61. It is clear from the aforesaid decisions that the delay inHforwarding the FIR may certainly indicate the failure of one of the external

checks to determine whether the FIR was manipulated later or whetherit was registered either to fix someone other than the real culprit or toallow the real culprit to escape. While every delay in forwarding the FIRmay not necessarily be fatal to the case of the prosecution, Courts maybe duty bound to see the effect of such delay on the investigation andeven the creditworthiness of the investigation.

62. Section 157(1) of the Code requires the officer-in-charge ofthe police station to send the FIR, “forthwith”. The legal consequencesof the delay on the part of the police in forwarding the FIR to the courtwas considered by this Court in Brahm Swaroop and Another vs. Stateof Uttar Pradesh[4]. Incidentally Brahm Swaroop (supra) is also casewhere there was delay of five days in sending the report to theMagistrate (as in the present case). After taking note of several earlierdecisions of this Court, this Court held in Brahm Swaroop in para 21 asfollows:

“21. In the instant case, the defence did not put any questionin this regard to the investigating officer, Raj Guru (PW.10),thus, no explanation was required to be furnished by himon this issue. Thus, the prosecution had not been asked toexplain the delay in sending the special report. More so, thesubmission made by Shri Tulsi that the FIR was ante-timed cannotbe accepted in view of the evidence available on record whichgoes to show that the FIR had been lodged promptly within 20minutes of the incident as the Police Station was only 1 k.m. awayfrom the place of occurrence and names of all the accused hadbeen mentioned in the FIR.”

63. To come to the above conclusion, reliance was placed upon adecision of three member Bench in Balram Singh and Another vs.State of Punjab[5]. In Balram Singh (supra), three member Bench ofthis Court rejected the contention with regard to the delay in transmittingthe FIR to the Magistrate, on the ground that “while considering thecomplaint in regard to the delay in the FIR reaching theJurisdictional Magistrate, we will have to also bear in mind thecreditworthiness of the ocular evidence adduced by the prosecutionand if we find that such ocular evidence is worthy of acceptance,the element of delay in registering complaint or sending the same

4 (2011) 6 SCC 288

5 (2003) 11 SCC 286

Ato the Jurisdictional Magistrate by itself would not weaken theprosecution case”.

64. In State of Rajasthan vs. Daud Khan[6], this Court referred toBrahm Swaroop and interpreted the word “forthwith” appearing inSection 157 (1) of the Code, as follows:

The purpose of the “forthwith” communication of copy of theFIR to the Magistrate is to check the possibility of its manipulation.Therefore, delay in transmitting the special report to theCMagistrate is linked to the lodging of the FIR. If there is no delay inlodging an FIR, then any delay in communicating thespecial report to the Magistrate would really be of littleconsequence, since manipulation of the FIR would then get ruledout. Nevertheless, the prosecution should explain the delay inDtransmitting the special report to the Magistrate. However, if noquestion is put to the investigating officer concerning the delay,the prosecution is under no obligation to give an explanation. Thereis no universal rule that whenever there is some delay in sendingthe FIR to the Magistrate, the prosecution version becomesunreliable. In other words, the facts and circumstances of caseEare important for decision in this regard.”

65. Therefore, the learned Additional Advocate General for theState may be right, in theory, that delay in transmission of the FIR tothe court, may not, per se, be fatal, without anything more. But in thecase on hand, the delay was not small. The FIR said to have beenFregistered on 08.03.2012 was received by the Court of the Chief JudicialMagistrate on 13.03.2012. It is true that no question was put in cross-examination to the Investigation Officer about this delay.

66. But we have found that the evidence of P.Ws. 1 to 3 isuntrustworthy, particularly on the question of the origin and genesis ofGthe first information report. Therefore the inordinate delay in the FIRreaching the jurisdictional court assumes significance. We agree thatthe word “forthwith’ in Section 157(1) of the Code is to be understood inthe context of the given facts and circumstances of each case and

H6 (2016) 2 SCC 607

straight-jacket formula cannot be applied in all cases. But where ocularevidence is found to be unreliable and thus unacceptable, long delayhas 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 onrecord the basic foundational facts, such as, the Officer who tookthe first information report to the jurisdictional court, the authoritywhich directed such course of action and the mode by which itwas complied. Explaining the delay is different aspect than placingthe material in compliance of the Code.

67. In the present case, it is not even known as to who took thefirst information report from P.W.6 or P.W.4 and submitted before thejurisdictional court. Neither PW-4 nor PW-6 spoke about the personwho took the FIR to the court. They did not say that they took it to thecourt. It is not case of mere delay in sending the first informationreport, but one involving the contradictory evidence by the prosecutionwitnesses on the manner in which the first information report is written.

68. On the question of compliance of Section 157(1) along withlogical reasoning for doing so, the following passage from the decision inJafarudheen and Ors. vs. State of Kerala[7] may be usefully quotedas under:

“26. The jurisdictional Magistrate plays pivotal role during theinvestigation process. It is meant to make the investigation justand fair. The Investigating Officer is to keep the Magistrate in theloop of his ongoing investigation. The object is to avoid possiblefoul play. The Magistrate has role to play under Section 159 ofCr.PC.

27. The first information report in criminal case starts the processof investigation by letting the criminal law into motion. It is certainlya vital and valuable aspect of evidence to corroborate the oralevidence. Therefore, it is imperative that such an information isexpected to reach the jurisdictional Magistrate at the earliest pointof time to avoid any possible ante-dating or ante-timing leading tothe insertion of materials meant to convict the accused contraryto the truth and on account of such delay may also not only getsbereft of the advantage of spontaneity, there is also dangercreeping in by the introduction of coloured version, exaggerated

Aaccount or concocted story as result of deliberation andconsultation. However, mere delay by itself cannot be solefactor in rejecting the prosecution’s case arrived at after dueinvestigation. Ultimately, it is for the Court concerned to take acall. Such view is expected to be taken after considering therelevant materials.”B

Therefore, we hold that the delay of 5 days in transmitting theFIR to the jurisdictional court, especially in the facts and circumstancesof this case was fatal.

III. Failure to conduct medical examination

69. Despite the fact that it was shocking case of rape and murderof six year old girl, the prosecution did not care to subject the accused(appellant herein) to examination by medical practitioner. There weretwo documents which formed part of the records submitted along withthe final report, but which were not exhibited. One of them appears toDbe Memo signed by PW-5, the Doctor who conducted the post-mortem.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.”E

70. The second is 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 09.03.2012Fwas examined as PW-5, he never spoke about this. The Report of theForensic Sciences Laboratory, to whom the salwar was forwarded, wasalso not obtained by the Investigating Officer.

72. Section 53(1) of the Code enables police officer not belowthe rank of Sub-Inspector to request registered medical practitioner, toGmake such an examination of the person arrested, as is reasonablynecessary to ascertain the facts which may afford such evidence,whenever person is arrested on charge of committing an offence ofsuch nature that there are reasonable grounds for believing that anexamination of his person will afford evidence as to the commission ofHan offence. Section 53(1) reads as follows:

“53. Examination of accused by medical practitioner at therequest of police officer.-(1)When person is arrested on acharge of committing an offence of such nature and alleged tohave been committed under such circumstances that there arereasonable grounds for believing that an examination of his personwill afford evidence as to the commission of an offence, it shallbe lawful for registered medical practitioner, acting at the requestof police officer not below the rank of sub- inspector, and forany person acting in good faith in his aid and under his direction,to make such an examination of the person arrested as isreasonably necessary in order to ascertain the facts which mayafford such evidence, and to use such force as is reasonablynecessary for that purpose.”73. By Act 25 of 2005, new Explanation was substituted underSection 53, in the place of the original Explanation. The Explanation sosubstituted 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, bloodstains, semen, swabs in case of sexual offences, sputum andsweat, hair samples and finger nail clippings by the use ofmodern and scientific techniques including DNA profiling andsuch other tests which the registered medical practitionerthinks necessary in particular case;

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

74. Simultaneously with the substitution of new Explanation underSection 53, Act 25 of 2005 also inserted new provision in Section 53A.Section 53A reads as follows:

“53A. Examination of person accused of rape by medicalpractitioner, -

(1) When person is arrested on charge of committing an offenceof rape or an attempt to commit rape and there are reasonablegrounds for believing that an examination of his person will afford

628SUPREME COURT REPORTS

Aevidence as to the commission of such offence, it shall be lawfulfor registered medical practitioner employed in hospital run bythe Government or by local authority and in the absence of sucha practitioner within the radius of sixteen kilometers from the placewhere the offence has been committed by any other registeredmedical practitioner, acting at the request of police officer notBbelow the rank of sub-inspector, and for any person acting ingood faith in his aid and under his direction, to make such anexamination of the arrested person and to use such force as isreasonably necessary for that purpose.

(2) The registered medical practitioner conducting suchCexamination shall, without delay, examine such person and preparea report of his examination giving the following particulars, namely;“(i) the name and address of the accused and of the person bywhom he was brought,

D(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 accusedfor DNA profiling, and

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

(4) The exact time of commencement and completion of theexamination shall also be noted in the report.

F(5) The registered medical practitioner shall, without delay, forwardthe report of the investigating officer, who shall forward it to theMagistrate referred to in Section 173 as part of the documentsreferred to in Clause (a) of sub-section (5) of that section.”

75. Even in case where the victim of rape was alive and testifiedGbefore the Court and the accused was also examined by doctor, thisCourt found in Krishan Kumar Malik vs. State of Haryana[8] that thefailure to obtain the report of the Forensic Sciences Laboratory wasfatal. Paragraph 40 of the said decision reads as follows:

H8 (2011) 7 SCC 130

“40. The appellant was also examined by the doctor, who hadfound him capable of performing sexual intercourse. In theundergarments of the prosecutrix, male semen were found butthese were not sent for analysis in the forensic laboratories whichcould have conclusively proved, beyond any shadow of doubt withregard to the commission of offence by the appellant. This lacunaon the part of the prosecution proves to be fatal and goes in favourof the appellant.”

76. On the scope of the newly inserted Section 53A, this Courtsaid in Krishan Kumar Malik (supra) as follows:

“44. Now, after the incorporation of Section 53A in the CriminalProcedure Code, w.e.f. 23.6.2006, brought to our notice by thelearned counsel for the respondent State, it has become necessaryfor the prosecution to go in for DNA test in such type of cases,facilitating the prosecution to prove its case against the accused.Prior to 2006, even without the aforesaid specific provision inCrPC the prosecution could have still resorted to this procedureof getting the DNA test or analysis and matching of semen of theAppellant with that found on the undergarments of the prosecutrixto make it fool proof case, but they did not do so, thus they mustface the consequences.”

77. It is true that three member Bench of this Court indicated inRajendra Pralhadrao Wasnik vs. State of Maharashtra[9] that Section53A is not mandatory. It was held in paragraphs 49 and 50 of the saiddecision as follows:-

“49. While Section 53-A CrPC. is not mandatory, it certainlyrequires positive decision to be taken. There must be reasonablegrounds for believing that the examination of person will affordevidence as to the commission of an offence of rape or an attemptto commit rape. If reasonable grounds exist, then medicalexamination as postulated by Section 53-A(2) CrPC must beconducted and that includes examination of the accused anddescription of material taken from the person of the accused forDNA profiling. Looked at from another point of view, if there arereasonable grounds for believing that an examination of theaccused will not afford evidence as to the commission of an

Aoffence as mentioned above, it is quite unlikely that charge-sheet would even be filed against the accused for committing anoffence of rape or attempt to rape.

50. Similarly, Section 164-A CrPC requires, wherever possible,for the medical examination of victim of rape. Of course, theBconsent of the victim is necessary and the person conducting theexamination must be competent to medically examine the victim.Again, one of the requirements of the medical examination is anexamination of the victim and description of material taken fromthe person of the woman for DNA profiling.”

C78. After saying that Section 53A is not mandatory, this Courtfound in paragraph 54 of the said decision that the failure of the prosecutionto produce DNA evidence, warranted an adverse inference to be drawn.Paragraph 54 reads as follows:-

“54. For the prosecution to decline to produce DNA evidenceDwould be little unfortunate particularly when the facility of DNAprofiling is available in the country. The prosecution would bewell advised to take advantage of this, particularly in view of theprovisions of Section 53-A and Section 164-A CrPC. We are notgoing to the extent of suggesting that if there is no DNA profiling,the prosecution case cannot be proved but we are certainly of theEview that where DNA profiling has not been done or it is heldback from the trial court, an adverse consequence would followfor the prosecution.”

79. It is necessary at this stage to note that by the very sameAmendment Act 25 of 2005, by which Section 53A was inserted, SectionF164A was also inserted in the Code. While Section 53A enables themedical examination of the person accused of rape, Section 164A enablesmedical examination of the victim of rape. Both these provisions aresomewhat similar and can be said approximately to be mirror image ofeach other. But there are three distinguishing features. They are:-

G(i) Section 164A requires the prior consent of the women who isthe victim of rape. Alternatively, the consent of person competentto give such consent on her behalf should have been obtainedbefore subjecting the victim to medical examination. Section 53Adoes not speak about any such consent;

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

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

80. In cases where the victim of rape is alive and is in position totestify in court, it may be possible for the prosecution to take chanceby not medically examining the accused. But in cases where the victimis dead and the offence is sought to be established only by circumstantialevidence, medical evidence assumes great importance. The failure ofthe prosecution to produce such evidence, despite there being no obstaclefrom the accused or anyone, will certainly create gaping hole in thecase of the prosecution and give rise to serious doubt on the case ofthe prosecution. We do not wish to go into the question whether Section53A is mandatory or not. Section 53A enables the prosecution to obtaina significant piece of evidence to prove the charge. The failure of theprosecution in this case to subject the appellant to medical examinationis certainly fatal to the prosecution case especially when the ocularevidence is found to be not trustworthy.

81. Their failure to obtain the report of the Forensic SciencesLaboratory on the blood/semen stain on the salwar worn by the victim,compounds the failure of the prosecution.

IV. Argument revolving around section 313 of the Code

82. Though arguments were advanced even on (i) the manner inwhich the statement of the accused was recorded under Section 313 ofthe Code; (ii) the failure of the Court to comply with the mandate ofSection 313(1)(b) of the Code in letter and spirit; and (iii) theconsequences of such failure, we do not think it necessary to go into thesaid question. This is for the reason that we have found in Part-I of this

Aorder that the evidence of P.Ws 1 to 3 are not trustworthy and in Part-III of this order that the failure of the prosecution to subject the appellantto medical examination was fatal. These findings are sufficient to overturnthe verdict of conviction and penalty.

Reasoning of the Sessions court and the High CourtB

83. Before wrapping up, it is necessary to say something aboutthe approach adopted by the Sessions Court and the High Court. Incases of this nature the court is obliged to assess the evidence on thetest of probability. Though wide discretion is given to the Court to considerthe “matters before it”, such an evidence has to be sifted carefully beforeCrecording satisfaction. It is not the quantum, but what matters is thequality. Both the Courts below found the evidence of P.Ws. 1 to 3acceptable. The seriously inherent contradictions in the statements madeby them have not been duly taken note of by both the courts. When theoffence is heinous, the Court is required to put the material evidenceunder higher scrutiny. On careful consideration of the reasoning ofDthe Trial Court, as confirmed by the High Court, we find that sufficientcare has not been taken in the assessment of the statements made byP.Ws. 1 to 3. No one spoke as to who sent the FIR to the court andwhen it was sent. Strangely even the copy of the post-mortem reportwas admittedly received by SHO on the 13.03.2012 though the postEmortem was conducted on the 09.03.2012,. It was the same date onwhich the FIR reached the Court. These factors certainly create strongsuspicion on the story as projected by the prosecution, but both the Courtshave overlooked the same completely. This erroneous approach on thepart of the Sessions Court and the High Court has led to the appellantbeing ordained to be dispatched to the gallows.F

Conclusion

84. We cannot shy away from the fact that it is ghastly case ofrape and murder of 6 year old child. By not conducting the investigationproperly, the prosecution has done injustice to the family of the victim.GBy fixing culpability upon the appellant without any shred of evidencewhich will stand the scrutiny, the prosecution has done injustice to theappellant. Court cannot make someone, victim of injustice, tocompensate for the injustice to the victim of crime.

85. In fact this is case where the appellant is so poor that hecould not afford to engage lawyer even in the Sessions Court. AfterH

his repeated requests to the Court of District and Sessions Judge, theservice of an advocate was provided as amicus. In cases of such nature,the responsibility of the Court becomes more onerous. When we analysethe evidence with such sense of responsibility, we are not convincedthat the guilt of the appellant stood established beyond reasonable doubt.Therefore, the appeals are allowed and the conviction and penalty areset aside. The appellant shall be released forthwith if not wanted inconnection with any other case.

Devika Gujral(Assisted by : Neha Sharma, LCRA)

Appeals allowed.