CHOTKAU versus STATE OF UTTAR PRADESH

Citation: [2022] 9 S.C.R. 601 · Decided: 28-09-2022 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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CHOTKAU
v.
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 evidence
tendered  by prosecution witnesses on  crucial aspects which made
them completely untrustworthy – Sessions Court as well as the High
Court trivialized the major contradictions to hold that the chain of
circumstances was established unbroken – Delay of five days in
transmitting the FIR to the jurisdictional court was fatal – Failure
of the prosecution to subject the accused to medical examination
when 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 – Effect
on prosecution case – Held: 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 word “forthwith’ in s.157(1) of the Code is to be understood in
the context of the given facts and circumstances of each case and a
straight-jacket 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 – Delay of five days
in transmitting the FIR to the jurisdictional court, especially in the
facts and circumstances of the present case was fatal – Code of
Criminal Procedure, 1973 – s.157(1).
Code of Criminal Procedure, 1973: s.53A – Relevance of
medical examination of rape accused in cases based on
circumstantial evidence – In cases where the victim of rape is alive
and is in a position to testify in court, it may be possible for the
[2022] 9 S.C.R. 601
601
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SUPREME COURT REPORTS
[2022] 9 S.C.R.
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 – Failure  of 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 – s.53A enables the prosecution to obtain  a  significant
piece  of  evidence  to  prove  the  charge – Failure of the prosecution
in the instant 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.
Code of Criminal Procedure, 1973: Difference between s.64A
and s.53A – Discussed.
Allowing the appeals, the Court
HELD : 1. Trustworthiness of the testimonies of PWs 1 to
3: 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. 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. [Para 57][620-
D-E]
2.1 Delay in transmitting the FIR to court: 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. This Court
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have found that the evidence of P.Ws. 1 to 3 is untrustworthy,
particularly on the question of the origin and genesis of the first
information re

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