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 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][620D-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 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 report. Therefore, the inordinate delay in the FIR reaching the jurisdictional court assumes significance. The word “forthwith’ in Section 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. The mandate of Section 157(1) of the Code being clear, the prosecution is expected to place on record the basic foundational facts, such as, the Officer who took the first information report to the jurisdictional court, the authority which directed such a course of action and the mode by which it was complied. Explaining the delay is a different aspect than placing the material in compliance of 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 who took the first information report from P.W.6 or P.W.4 and submitted before the jurisdictional court. Neither PW4 nor PW6 spoke about the person who took the FIR to the court. They did not say that they took it to the court. It is not a case of mere delay in sending the first information report, but one involving the contradictory evidence by the prosecution witnesses on the manner 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 a police officer not below the rank of SubInspector to request a registered medical practitioner, to make such an examination of the person arrested, as is reasonably necessary to ascertain the facts which may afford such evidence, whenever a person is arrested on a charge of committing an offence of such a nature that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence. [Para 72][626-G-H]
3.2 By Amendment Act 25 of 2005, by which Section 53A was inserted, Section 164A was also inserted in the Code. While Section 53A enables the medical examination of the person accused of rape, Section 164A enables medical examination of the victim of rape. Both these provisions are somewhat similar and can be said approximately to be a mirror image of each other. But there are three distinguishing features. They are:(i) Section 164A requires the prior consent of thewomen who is the victim of rape. Alternatively, the consent of a person competent to give such consent on her behalf should have been obtained before subjecting the victim to medical examination. Section 53A does not speak about any such consent;
(ii) Section 164A requires the report of the medical practitioner to contain among other things, the general mental condition of the women. This is absent in Section 53A;
(iii) Under Section 164A(1), the medical examination by a registered medical practitioner is mandatory when, “it is proposed to get the person of the women examined by a medical expert” during the course of investigation. This is borne out by the use of the words, “such examination shall be conducted”. In contrast, Section 53A(1) merely makes it lawful for a registered medical practitioner to make an examination of the arrested person if “there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence”. [Para 79][630-F-H; 631-A-C]
3.2 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. The Court does 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. [Para 80][631-D-F]
4. Though arguments were advanced even on (i) the manner in which the statement of the accused was recorded under Section
313 of the Code; (ii) the failure of the Court to comply with the mandate of Section 313(1)(b) of the Code in letter and spirit; and
(iii) the consequences of such failure, we do not think it necessary to go into the said question. This is for the reason that we have found in Part-I of this order 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 appellant to medical examination was fatal. These findings are sufficient to overturn the verdict of conviction and penalty. [Para 82][631-G-H; 632-A] Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Meharaj Singh (L/Nk.) v. State of U.P (1994) 5 SCC 188 : [1994] 3 SCR 592; Bhajan Singh alias Harbhajan Singh and Others v. State of Haryana (2011) 7 SCC 421 : [2011]
7 SCR 1; Brahm Swaroop and Another v. State of Uttar Pradesh (2011) 6 SCC 288 : [2010] 15 SCR 1; Balram Singh and Another v. State of Punjab (2003) 11 SCC 286; State of Rajasthan v. Daud Khan (2016) 2 SCC
607 : [2015] 13 SCR 1131; Jafarudheen and Ors. v. State of Kerala 2022 SCC Online SC 495; Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130 : [2011] 8 SCR 774; Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460 : [2018] 14 SCR 585 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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