The Supreme Court of India, on September 28, held that By not conducting the investigation properly, the prosecution has done injustice to the family of the victim.

Bench of Justices S. Abdul Nazeer, A.S. Bopanna and V. Ramasubramanian observed that, "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 matter pertained to a challenge to concurrent convictions for murder by Trial Court and the High Court whereby death sentence was also confirmed.

Factual Matrix

The case of the prosecution was that on 08.03.2012 at about 20:10 hrs., one Kishun Bahadur, resident of Village Semgarha, P.S Ikauna, District Shravasti lodged a complaint at Police Station Ikauna alleging that at about 4:00 p.m on the same day, the appellant herein 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. 

The trial commenced and witnesses were examined by the prosecution. The accused claimed in his statement under Section 313 of the Cr.P.C. that he was falsely implicated in order to grab property. 

Trial Court Decision 

The Court held that the guilt of the accused was established beyond reasonable doubt and that the offence fell in the category of rarest of rare. Therefore, he was sentenced to death. The High Court confirmed the sentence.

Analysis Of Witnesses By Apex Court

The Court observed that, "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 trivialised these major contradictions to hold that the chain of circumstances have been established unbroken." 

Delay In Transmitting FIR

On the issue of delay in transmitting the FIR, the Court held that, "It is clear from the aforesaid decisions 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."

Failure To Conduct Medical Examination 

The Court, on the issue of failure of medical examination, held 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. 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. We do not wish to go into the question whether Section 53A is mandatory or not. 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."

Absence Of Legal Representation For Accused

The Court finally observed that, "In fact this is a case where 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. In cases of such nature, the responsibility of the Court becomes more onerous. When we analyse the evidence with such a sense of responsibility, we are not convinced that the guilt of the appellant stood established beyond reasonable doubt."

The appeals are, henceforth, allowed and the conviction and penalty were set aside.