The Supreme Court recently acquitted a man who was sentenced to death by Sessions Court and Allahabad High Court for rape and murder of a six-year-old girl [Chotkau v State of UP].
A bench of Justices S Abdul Nazeer, AS Bopanna and V Ramasubramanian said that the prosecution did injustice to the accused person by fixing culpability on him without a shred of evidence.
“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 top court held.
The Court further stated that the case against the accused was based on circumstantial evidence and in such cases medical evidence assumes great significance.
But in the present case, no medical evidence was produced which gave rise to serious doubts as regards the prosecution case, the Court said.
“Court cannot make someone, a victim of injustice to compensate for the injustice to the victim of a crime,” the judgment said.
The Court was hearing an appeal moved by one Chotkau (appellant) who was convicted for the offences punishable under Sections 302 (murder) and 376 (rape) of the Indian Penal Code (IPC) and sentenced to death by a Sessions Court in Uttar Pradesh, which was confirmed by the Allahabad High Court.
It was the case of prosecution that in 2012, the appellant had taken his six-year-old niece along with him on pretext of showing dance and song performance on the occasion of the Holi festival.
The minor girl did not return home and it was found that the appellant had not returned home too. Later, the dead body of minor was recovered from sugarcane fields. A villager, who was part of search team that found dead body, claimed to have seen the appellant leaving the same fields.
Therefore, invoking the last seen theory (one in which two people are seen together and one is found alive after an interval of time, and another is dead) 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.
The Sessions Court ruled that the guilt of the appellant stood established beyond reasonable doubt by circumstantial evidence.
It held that the case fell into the category of ‘rarest of rare’ wherein a six-year-old girl had been raped and murdered.
It, therefore, convicted the appellant for the offences punishable under Sections 302 and 376 of the IPC and awarded death penalty.
The proceedings were then submitted to the High Court for confirmation. The appellant also filed an appeal before the High Court. The capital punishment reference as well as the appeal filed by the appellant were taken up together by a division bench of the High Court, which confirmed the conviction and death sentence.
This led to the appeal before the Supreme Court.
The counsel for the appellant contended that there was an unexplained delay of five days in forwarding the first information report (FIR) to the jurisdictional court.
There were also serious contradictions regarding the place where the body of the victim was kept and the place where the inquest was conducted, he added.
The evidence to support the last seen theory was insufficient to convict the appellant and there was complete failure on the part of the prosecution to examine material witnesses, it was argued.
The counsel further added that the investigating officer failed to produce any forensic/medical evidence.
The top court noted 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.
“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 added.
Regarding medical evidence, the Court said 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, noted court.
“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,” the bench said.
The Court in this light observed that the seriously inherent contradictions in the statements made by prosecution witnesses were not duly taken note of by both the courts.
“When the offence is heinous, the Court is required to put the material evidence under a higher scrutiny,” 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 and not conducting the investigation properly, the prosecution has done injustice to the family of the victim, the Court said.
Further, it stated that this was a case where the appellant was 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. In cases of such nature, the responsibility of the Court becomes more onerous.”
The bench thus held that the guilt of the appellant was not established beyond reasonable doubt.
Therefore, the appeals were allowed and the conviction and penalty was set aside.
“The appellant shall be released forthwith if not wanted in connection with any other case,” ordered the bench.
Senior Advocate S Nagamuthu appeared for appellant while Additional Advocate General Ardhendumauli Kumar Prasad represented State of UP.
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