The Supreme Court stated that the Court cannot make someone, a victim of injustice, to compensate for the injustice to the victim of a crime.
The case of the prosecution was that one Kishun Bahadur, resident of Village Semgarha, District Shravasti lodged a complaint at Police Station alleging that at about 4:00 p.m the appellant 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.
Senior Advocate S. Nagamuthu, appearing for the appellant, contended that the evidence of Prosecution Witness is untrustworthy, also there was an unexplained delay of five days in forwarding the FIR to the jurisdictional Court.
He submitted that there were serious contradictions regarding the place where the body of the victim was kept and the place where the inquest was conducted.
Ardhendumauli Kumar Prasad, AAG for the State, contended that there are no reasons for Prosecution Witnesses to implicate the appellant and their evidence was found to be cogent and trustworthy by two Courts.
He argued that the delay in forwarding the FIR to the court did not vitiate the trial and did not prejudice the appellant.
The three judges bench of Justice S. Abdul Nazeer, Justice A.S. Bopanna and Justice V. Ramasubramanian observed that it remains a mystery as to whether the dead body was ever taken to the police station and if so, how, when and why.
It was further observed 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.
The court said that 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.
The court found that the evidence of Prosecution Witnesses 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.
“Where ocular evidence is found to be unreliable and thus unacceptable, a long delay has to be taken note of by the Court” the court said.
The bench noted that by the Amendment Act 25 of 2005, by which Section 53A was inserted, Section 164A was also inserted in the Code of Criminal Procedure.
It was stated 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 medical examination is certainly fatal to the prosecution case especially when the ocular evidence is found to be not trustworthy.
“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 evidence has to be sifted carefully before recording satisfaction. It is not the quantum, but what matters is the quality” the court added.
“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” the court said.
The court noted that 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.
The bench was not convinced that the guilt of the appellant stood established beyond reasonable doubt.
Case title: Chotkau v/s State of Uttar Pradesh
Citation: Criminal appeal nos.361362 of 2018