# CHOTKAU v. STATE OF UTTAR PRADESH

- **Citation:** [2022] 9 S.C.R. 601
- **Court:** Supreme Court of India
- **Decided:** 2022-09-28
- **Case number:** Criminal Appeal No.361-362 of 2018
- **Bench:** S. Abdul Nazeer, A. S. Bopanna, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chotkau-v-state-of-uttar-pradesh-36620
- **Pages:** 33

## Headnote

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
A
B
C
D
E
F
G
H
602
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][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 cas

## Text

_Characters 0–39,991 of 73,012. This is a partial read: ask again with offset=39991 for what follows._

A
B
C
D
E
F
G
H
601
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
A
B
C
D
E
F
G
H
602
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][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
A
B
C
D
E
F
G
H
603
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]
CHOTKAU v. STATE OF UTTAR PRADESH
A
B
C
D
E
F
G
H
604
SUPREME COURT REPORTS
[2022] 9 S.C.R.
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
A
B
C
D
E
F
G
H
605
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.
Case Law Reference
[1985] 1 SCR 88
relied on
Para 9
[1994] 3 SCR 592
relied on
Para 59
[2011] 7 SCR 1
relied on
Para 60
[2010] 15 SCR 1
relied on
Para 62
CHOTKAU v. STATE OF UTTAR PRADESH
A
B
C
D
E
F
G
H
606
SUPREME COURT REPORTS
[2022] 9 S.C.R.
(2003) 11 SCC 286
relied on
Para 63
[2015] 13 SCR 1131
relied on
Para 64
[2011] 8 SCR 774
relied on
Para 75
[2018] 14 SCR 585
relied on
Para 77
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 361-362 of 2018.
From the Judgment and Order dated 18.04.2016 of the High Court
of Judicature at Allahabad, Lucknow Bench in Capital Sentence No.4
of 2014 and Criminal Appeal No. 570 of 2014.
S. Nagamuthu, Sr. Adv., Ms. Shivani Misra, Harsh Parashar,
Chanakya Sharma, Ms. Chetna Bhargava, D. S. Vairawan,
R. Sudhakaran, G. R. Vikash, Subrahmanya Bhanu, Advs. for the
Appellant.
Ardhendumauli Kumar Prasad, AAG, Parmanand Pandey,
Ms. Shreya Srivastava, Ashish Madaan, Ms. Ananya Sahu, Aman Singh
Bhadauria, Utkarsh Pandey, Advs. for the Respondent.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. Convicted for the offences punishable under Sections 302 and
376 of the Indian Penal Code, 1860 (for short "IPC") and sentenced to
death by the Sessions Court, which was also confirmed by the High
Court on a reference and an appeal, the sole accused has come up with
the above appeals.
2. We have heard Shri S. Nagamuthu, learned senior counsel for
the appellant and Shri Ardhendumauli Kumar Prasad, learned Additional
Advocate General for the State of Uttar Pradesh.
3. 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
A
B
C
D
E
F
G
H
607
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.
4. The prosecution examined six witnesses, namely, (i) Kishun
Bahadur, the first informant and the uncle of the victim, as PW-1; (ii)
Shri Raj Karan, a localite who claimed to have seen the appellant carrying
the victim towards the sugarcane field and who was cited as a witness
to the inquest, as PW-2; (iii) one Fatehpur Bahadur, who was part of the
search party and who claimed to have seen the appellant leaving the
sugarcane field after about half an hour, as PW-3; (iv) the Head Constable
Balram Tripathi, the scribe of the First Information Report who registered
the FIR, as PW-4; (v) Dr. Mukesh Kumar who conducted the postmortem, as PW-5; and (vi) the Investigation Officer Shri Rambali Roy
as PW-6.
5. During questioning under Section 313 of the Code of Criminal
Procedure (hereinafter referred to as the "Code"), the appellant denied
the charges and claimed that he had been falsely implicated in the case,
at the behest of one Mr. Zalim Khan, with a view to grab the property of
his mother, who was none other than Zalim Khan's brother's daughter.
To substantiate this claim, the appellant also examined his mother as
DW-1.
6. Holding that the guilt of the appellant stood established beyond
reasonable doubt by circumstantial evidence and also holding that it is
one of the rarest of rare cases where a six year old girl had been raped
and murdered, the Sessions Court convicted the appellant for the offences
punishable under Sections 302 and 376 of the IPC and awarded death
penalty.
7. The proceedings were then submitted to the High Court under
Section 366(1) of the Code for confirmation. The appellant also filed an
appeal. The capital punishment reference as well as the appeal filed by
the appellant were taken up together by the Division Bench of the High
Court and the High Court confirmed the conviction and sentence. The
High Court came to the said conclusion on the basis that the evidence of
CHOTKAU v. STATE OF UTTAR PRADESH
[V. RAMASUBRAMANIAN, J.]
A
B
C
D
E
F
G
H
608
SUPREME COURT REPORTS
[2022] 9 S.C.R.
PWs 1 to 3 were trustworthy and that the chain of circumstances pointing
to the guilt of the appellant stood established unbroken, by their evidence.
The discrepancies in the testimonies of PWs 1 to 3 pointed out by the
appellant were rejected as minor and insignificant. The theory of animosity
and false implication put forth by the appellant and sought to be established
through the evidence of DW-1 were rejected by the High Court. The
High Court found fault with the appellant for not coming up with any
explanation as to what happened to the girl, especially in the light of the
burden cast upon him under Section 106 of the Evidence Act.
8. The arguments of the appellant regarding the delay in sending
the FIR to the Court and the faulty manner in which the questioning
under Section 313 of the Code was done, were rejected by the High
Court and the High Court finally agreed with the Sessions Court that it is
one of the rarest of rare cases where the appellant has exhibited a deviant
behaviour and abnormal sexual urge, thereby forfeiting his right to life.
Accordingly, the High Court confirmed the death penalty. Under these
circumstances, the accused is on appeal before us.
9. Obviously and admittedly, the prosecution of the appellant is
based on circumstantial evidence and hence we may have to see whether
the chain of circumstances is complete and unbroken. As held by this
Court in Sharad Birdhichand Sarda vs. State of Maharashtra 1, the
Court must keep in mind five golden principles or the panchsheel, lucidly
brought out in para 153 of the decision, as follows:-
"153. ...
...
...
(1)
the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
...
....
...
(2)
the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty,
(3)
the circumstances should be of a conclusive nature and
tendency,
(4)
they should exclude every possible hypothesis except the
one to be proved, and
1 (1984) 4 SCC 116
A
B
C
D
E
F
G
H
609
(5)
there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused."
10. In this case, the prosecution sought to establish the guilt of the
appellant, only through the evidence of PWs 1 to 3. PWs 1 and 2 had
seen the victim being taken towards the sugarcane field. PW-3 had seen
the appellant taking the victim from the house and also leaving the
sugarcane field half-an-hour later. When the search was conducted for
the missing girl, her dead body was found in the sugarcane field and the
appellant was absconding. On a cumulative consideration of these
circumstances and applying the last seen theory and invoking the burden
of proof cast under Section 106 of the Evidence Act, the Sessions Court
and the High Court came to the conclusion that the appellant was guilty.
11. Assailing the concurrent judgments of the Sessions Court and
the High Court, it was contended by Shri S. Nagamuthu, learned senior
counsel for the appellant that the evidence of PWs 1 to 3 is untrustworthy;
that there was an unexplained delay of five days in forwarding the FIR
to the jurisdictional Court; that there were serious contradictions regarding
the place where the body of the victim was kept and the place where
the inquest was conducted; that the evidence to support the last seen
theory was insufficient to convict the appellant; that there was complete
failure on the part of the prosecution to examine material witnesses;
that in a shocking abdication of duties, the I.O. failed to produce forensic/
medical evidence; and that the mandatory requirement of Section 313
of the Code was not fulfilled.
12. However, it was contended by Shri Ardhendumauli Kumar
Prasad, learned AAG for the State that there are no reasons for PWs 1
to 3 to implicate the appellant; that their evidence was found to be cogent
and trustworthy by two Courts; that the delay in forwarding the FIR to
the court did not vitiate the trial and did not prejudice the appellant; that
any defect in the questioning under Section 313 of the Code, may not
ipso facto vitiate the findings, unless prejudice is shown; and that the
forensic/medical evidence is not always mandatory.
13. We have carefully considered the rival contentions. In our
view, the questions that crop up for our consideration revolve around -
CHOTKAU v. STATE OF UTTAR PRADESH
[V. RAMASUBRAMANIAN, J.]
A
B
C
D
E
F
G
H
610
SUPREME COURT REPORTS
[2022] 9 S.C.R.
(i) the trustworthiness of the testimonies of PWs 1 to 3, in the light of
certain contradictions; (ii) the consequences of the delay on the part of
the Police in forwarding the FIR to the Court; (iii) the failure of the
prosecution to produce forensic/medical evidence and its effect and (iv)
the manner in which the questioning under Section 313 of the Code was
undertaken and its effect upon the findings recorded.
I. Trustworthiness of the testimonies of PWs 1 to 3
14. As we have indicated earlier, the guilt of the appellant is sought
to be established by the prosecution, by (i) relying upon the testimonies
of PWs 1 to 3 for invoking the last seen theory; and (ii) invoking Section
106 of the Evidence Act.
15. It is needless to point out that for the prosecution to successfully
invoke Section 106 of the Evidence Act, they must first establish that
there was "any fact especially within the knowledge of the" appellant.
This can be done by the prosecution only by proving that the victim was
last seen in the company of the appellant. To establish this last seen
theory, the prosecution relies upon the evidence of PWs 1 to 3. PWs 1
and 2 claim to have seen the appellant taking away the girl at 04:00 p.m
on 08.03.2012. PW-3 claims to have seen the appellant leaving the
sugarcane field after about half-an-hour. Therefore, according to the
prosecution, the burden of showing what happened to the girl was heavily
upon the appellant/accused.
16. Hence we have to see whether the evidence of PWs 1 to 3
was trustworthy and same proved the last seen theory. Both the Sessions
Court as well as the High Court have found the evidence of PWs 1 to 3
to be cogent and trustworthy. The contradictions pointed out by the
defence were held by both the Courts to be minor and insignificant.
Therefore, being the third Court exercising jurisdiction under Article 136
of the Constitution, we have to tread a very careful path while considering
the question of trustworthiness of these witnesses.
17. Unlike other cases, the appellant in this case has taken a defence
right from the beginning that he was implicated falsely at the behest of a
locally powerful person whose wife is the Pradhan of the village. The
case projected by the appellant was (i) that his maternal grandfather
was one Lazim Khan; (ii) that Lazim Khan's brother was one Zalim
Khan; (iii) that after the death of Lazim Khan, his property devolved
upon the appellant's mother Jannatul Nisha; (iv) that Zalim Khan wanted
A
B
C
D
E
F
G
H
611
to grab the properties from the appellant's mother but the appellant and
his mother were not willing to let the land be taken away by Zalim Khan;
and (v) that since Zalim Khan is a very powerful person in the village
and his wife is also the Pradhan of the village, he managed to implicate
the appellant falsely in this case.
18. To demonstrate the veracity of the above claim, the appellant
did 3 things. First he confronted PWs 1 to 3 with pertinent questions in
cross-examination. Then the appellant articulated this theory in the
questioning under Section 313. Third, the appellant also examined his
mother as DW-1.
19. Let us now take note of the answers elicited by the defence
from PW-1 during cross-examination. The relevant portion of the
testimony of PW-1 in cross-examination reads as follows"
"The mother of accused-Jannatul Nisha, was earlier living at
Semgarha; now she lives' at Ikauna. At Ikauna, the mother of
accused has kinship in the family of Jumai Pathan. The mother of
accused do not have agriculture land in Ikauna. I do not know as
to whether she works there as a labourer. At Semgarha, the mother
of accused has 28-30 bighas of agriculture land which she had
got from the maternal grandfather of the accused. The maternal
grandfather of the accused had no son, that's why the land of
accused's maternal grandfather had transferred in the name of
the mother of accused. The name of the maternal grandfather of
the accused is Lazim Khan who was resident of Semgarha village
only. Lazim Khan is pattidar (relative) of the present Grampradhan Zalim Khan. Zalim Khan is very prosperous man. He
has 200 bighas of land, 2 tractors, two motorcycles and 4 sons.
Zalim Khan has high influence in my village. He has prominence
there.
...
...
...
Zalim Khan had come at the spot. Zalim Khan had told to get
lodged the F.I.R.
...
...
...
Zalim Khan cultivates the land of accused Chotkau. Zalim Khan
has won the court case related with the land. The suit regarding
CHOTKAU v. STATE OF UTTAR PRADESH
[V. RAMASUBRAMANIAN, J.]
A
B
C
D
E
F
G
H
612
SUPREME COURT REPORTS
[2022] 9 S.C.R.
the land is pending before the higher courts. The mother of Chotkau
lives at Ikauna after this incident."
20. After having said what is extracted above during crossexamination, PW-1 denied certain suggestions made in this regard. The
portion of his testimony where he denied the suggestions is as follows:
"It is correct to say that no witness has seen Chotkau committing
the rape and murder of Uma Devi. It is wrong to say that I had
lodged the F.I.R. against Chotkau on being said by Zalim Khan
Pradhan. It is wrong to say that we are men of Zalim Khan
Pradhan. It is wrong that Zalim Khan Pradhan owes enmity with
the mother of Chotkau regarding the land, that's why Zalim Khan
had got lodged the F.I.R. against Chotkau. It is wrong to say that
Chotkau had neither committed rape nor the murder of Uma Devi.
It is wrong to say that I am submitting false testimony."
21. Even PW-2 was confronted with specific questions relating to
the alleged role of Zalim Khan in implicating the appellant. The relevant
portion of the cross-examination of PW-2 reads as follows:
"I know the mother of accused Chotkau. Her maternal house is
at village Semgarha only and she is daughter of Lazim Khan.
Lazim Khan has died. Lazim Khan had no son. After the death of
Lazim Khan, Zalim Khan-the present Pradhan, got his land and
he only cultivates the land. The mother of accused had not got the
land of her father. Lazim Khan and Zalim Khan are real brothers.
The land would be about 18-20 bighas. Zalim Khan cultivates the
entire land. The mother of Chotkau had fled away from here and
living at Ikauna. Chotkau has three brothers including him. All the
three of them do not have any land. All the three of them are
engaged in the occupation of labourers."
22. After having said what is extracted above, PW-2 denied the
suggestion that it was Zalim Khan who got the appellant implicated in
the case.
23. Even the Investigation Officer examined as PW-6 admitted in
cross-examination: "I had detected that a land dispute was proceeding
between accused Chotkau and Zalim Khan."
24. In answer to the last question (Question No.13) during the
questioning under Section 313 of the Code, as to whether he wished to
say anything else, the appellant stated as follows:
A
B
C
D
E
F
G
H
613
"After death of Lazim Khan, his real brother Zalim Khan had
usurped all the property of Lazim Khan and expelled the accused.
The accused was not leaving possession of the land of his maternal
grandfather therefore Zalim Khan implicated him false in this
case."
25. The appellant's mother examined as DW-1 not only elaborated
the theory that the appellant was falsely implicated at the instance of
Zalim Khan but also came up with a story as to what could have happened
to the victim. The relevant portion of the evidence of DW-1 reads as
follows:
"After the death of father, finding me helpless, Zalim Khan gobbled
all my property. We have intense enmity with Zalim Khan for the
same reason. My son Chotkau and I opposed Zalim Khan in the
election of Pradhan and other matters, that is why Zalim Khan
implicated my son in this false case. Zalim Khan has falsely
implicated my son by making Kishun Bahadur and Rajkaran the
complainant and the witness in the said case who are the servants
of Zalim Khan. The truth is that the daughter of brother of the
complainant of case Kishun Bahadur had gone in the sugar-cane
field for defecation, there itself a Markaha (aggressive) Neelgai
threw her by its horns, due to which she had died. But giving this
matter a different color due to enmity, Zalim Khan got my son
implicated as the acused by putting pressure on the local police.
We got to know the fact of Uma Devi being killed by the Neelgai
when the son of Behna had gone for defecation in the same field
and Neelgai had hit him too with its horn due to which his scrotum
had ruptured."
26. Keeping in mind the defence so put up by the appellant, let us
now come to the other portions of the evidence of PWs 1 to 3.
The Mode of Lodging of the FIR
27. On the question as to how the complaint was lodged and as to
what happened immediately thereafter, PW-1 stated in Chief-examination
as follows:
"I went to the police station to inform about the incident, got
the application written by a man there, got read over the
application, marked my signature and handed over the same
CHOTKAU v. STATE OF UTTAR PRADESH
[V. RAMASUBRAMANIAN, J.]
A
B
C
D
E
F
G
H
614
SUPREME COURT REPORTS
[2022] 9 S.C.R.
to the police station. On the same Tehrir my case had been
registered."
...........
"After I handed over the Tehrir, the police went to the spot,
performed the documentation regarding the corpse and sent
the corpse for post-mortem. The Investigating Officer had
taken my statement and went to the spot. He had prepared the
site map on pointing out by me."
28. During cross-examination, PW-1 said:
"I myself had gone to the police station to lodge the FIR. I
had got written the complaint by a person who was resident
of Sitkahna. The police station officials themselves provided
the paper. The Inspector had asked me to get the FIR written
by any person of my side".
29. But during further cross-examination PW-1 stated thus:
"I had got written the Tehrir of FIR by another person inside
the police station itself. The Inspector had dictated it and got
it written. I had marked my signature on that."
30. After some time, PW-1 admitted during further crossexamination the following:
"Zalim Khan had come at the spot. Zalim Khan had told to get
lodged the FIR against Chotkau."
31. In contra-distinction to what PW-1 said, PW-3 stated that the
"information had been given to police station over telephone, then
police man had come". During cross-examination also PW-3 stated
that police reached the spot upon getting a phone call and that he did not
know who made the call.
32. PW-4, the Head Constable said in Chief Examination:
"On 08.03.2012, I was posted as H.C. at Police StationIkauna, District-Shrawasti. On that day a written Hindi Tahrir
had been submitted by complainant of the case Shri Kishun
Bahadur s/o Chintaram, resident of Semgarha, Police StationIkauna, District Shrawasti." During cross-examination PW-4
reiterated: "The complainant of the case had given me a written
A
B
C
D
E
F
G
H
615
application. The complainant of the case had given the Tehrir
on 08.03.2012 at 20:10 hrs..".
33. Thus even on the question as to how the first information was
given to the police, there are different versions. According to one version,
"PW-1 went to the police station, got the Tehrir written by a man
there, got read over the complaint, marked his signature and handed
over the same to the police station". According to the second version,
again by PW-1, "the Inspector dictated it and got it written". According
to a third version "Zalim Khan had told to get the FIR registered
against the appellant". According to the fourth version, which was by
PW-3, "the information was given to the police through phone call".
34. Thus there were different versions, (i) as to how the first
information was given to the police; and (ii) by whom the complaint was
written.
The place where the dead body was seen by the police, persons
took the body from the place of occurrence and where it was
taken to.
35. There were several contradictions regarding, (i) the place where
the dead body was first seen by the Police; (ii) the person who took the
dead body; and (iii) the place to which the dead body was taken. PW-1
stated in chief-examination as follows:
"After I handed over the Tehrir, the police went to the spot,
performed the documentation regarding the corpse and sent
the corpse for post-mortem."
36. In cross-examination PW-1 stated "Despite getting the dead
body, we did not bring the dead body to the home. When police
personnel had come, they got carried the dead body." During further
cross-examination PW-1 stated: "the dead body was not lying there
for whole night. I will not be able to tell at what time the Inspector
had taken away the dead body. The Inspector had come at half
past seven. He had come in his vehicle. The Inspector had taken
away the dead body in his vehicle......."
"After consulting from every one the Inspector had taken the
dead body to the police station. He had brought a cloth from
the police station and took away the dead body wrapping it
in the same cloth. Later on we had gone with the dead body."
CHOTKAU v. STATE OF UTTAR PRADESH
[V. RAMASUBRAMANIAN, J.]
A
B
C
D
E
F
G
H
616
SUPREME COURT REPORTS
[2022] 9 S.C.R.
37. But a little while later, PW-1 stated in cross-examination:
"when this first information application had been written, the
dead body of the girl was kept inside the police station itself.
That time several persons there. The police personnel had
carried the dead body by a Magic (brand of vehicle) to
Bahraich for post-mortem".
38. PW-3 stated during cross-examination:
"the dead-body of the girl had been sent for post-mortem from
the occurrence spot itself."
39. PW-4 the Head Constable who registered the FIR said in
cross-examination: "the dead body had not been brought to the police
station."
40. But interestingly PW-6, the Investigation Officer stated the
following during cross-examination:-
"......After lodging of case, I had visited the occurrence spot same
day at 09.00-09.30 o' clock of the night. It had become dense
night when I had reached the spot. The family members were
wailing. There was no arrangement of light therefore I stayed
there itself in the night with a Daroga and two-three constables.
When I had reached the village, upto that time the villagers
had already brought the dead body to home from the
occurrence spot. Therefore, due to aforesaid reasons I did not
go to the occurrence spot in that night. Although I have not referred
this fact in my case diary but it is the correct fact. The dead
body was kept in front of the door of house of first informant
and the family members were wailing there itself..."
41. When confronted with the statements of PWs 1 to 3 to the
effect that the dead body had been taken away to the police station,
PW-6 denied the same as wrong. His answer to this question in crossexamination was as follows: "If the complainant of the case would
have said that the police man had taken away the dead body of
Uma to the police station in the night itself and conducted the inquest
proceeding there, then this fact is wrong."
42. Thus, there are different versions (i) regarding the place where
the dead body was first seen by the police; and (ii) as to who carried the
dead body and where. The first version of PW-1 was that "he and
A
B
C
D
E
F
G
H
617
other villagers who accompanied him did not bring the dead body
to the house and that when police personnel came, they carried the
dead body". The second version of PW-1 was the "Inspector took
away dead body in his vehicle to the police station". His third version
was that "when the first information application had been written,
the dead body of the girl was kept inside the police station itself".
His fourth version was that "the police personnel had carried the
dead body by a Magic (brand of vehicle) for post mortem". A new
version was put forth by PW-3 to the effect that the dead body of the
girl was sent for post-mortem from the occurrence spot itself, meaning
thereby that the body was never taken to the police station. PW-4, the
Head Constable said that the dead body had not been brought to the
police station. PW-6, the Investigating Officer categorically stated that
the police did not take away the dead body to the police station and that
he saw the dead body near the front door of the house of the first
informant.
43. There was yet another contradiction which is crucial. It was
claimed by PW-1 and confirmed by the others that the police came to
the occurrence spot only after the FIR was lodged. But at one place of
the cross-examination, PW-1 claimed that when the first information
application was written, the dead body of the girl was kept inside the
police station itself. Therefore, it remains a mystery as to whether the
dead body was ever taken to the police station and if so, how, when and
why.
Different versions regarding the Place, Date and Time of
conduct of the inquest.
44. There were many discrepancies regarding the place where
inquest was conducted and the date and time at which inquest was
conducted. In his chief-examination PW-2 stated as follows :
"...Then searching the girl, family members of Chheddan went
towards the sugarcane field and began searching, then they found
that the dead body of Uma was lying in the sugarcane field. Blood
was coming out of her urinal track, her clothes had torn up and
she had died. I also went to the spot. The family members of
Chheddan had informed the Police Station, on which the police
team of Police Station Ikauna had arrived. They had carried
out the inquest proceedings at the spot itself and obtained
CHOTKAU v. STATE OF UTTAR PRADESH
[V. RAMASUBRAMANIAN, J.]
A
B
C
D
E
F
G
H
618
SUPREME COURT REPORTS
[2022] 9 S.C.R.
my signature on the Memo of Inquest. When the Memo of
Inquest had been shown and read over to the witness, he said that
it was the same Memo of Inquest which had been prepared in my
presence and I had market my signature on that which I verify..."
45. Interestingly, PW-2 stated in cross-examination, the opposite
of what he stated in chief-examination. What PW-2 stated in crossexamination was that "the inquest proceedings on the dead body of
the girl were not performed before me".
46. PW-6, the Investigation Officer stated in chief-examination
as follows:
"....The inquest proceedings could not be performed due to being
night time. On 09.03.12 the inquest proceedings had been
completed and the dead body had been sent to DistrictBahraich for postmortem after sealing-stamping the same. Same
day I recorded the statement of the complainant on the spot,
inspected the spot and recorded the statements of witnesses..."
47. In cross-examination PW-6 reiterated that the inquest
proceedings were not conducted on the same night, but were started at
8 o' clock in the morning on 09.03.2012. PW-6 claimed that Raj Karan,
Vikram, Pesh Ram, Rameshwar Prasad and Raksha Ram were deputed
as panch for the inquest. Out of these five panch witnesses, Raj
Karan alone was examined as PW-2, but according to Raj Karan,
examined as PW-2, the police arrived at the spot upon being
informed by the family members of Chheddan and conducted
inquest proceedings at the spot itself. He also claimed that the I.O
recorded his statement on the night of the incident at 7 o' clock.
48. Out of the five panch witnesses mentioned by the I.O to
have been present at the time of inquest, the names of three persons
were mentioned by PW-1 also, but according to PW-1, the I.O came to
the spot at half past 7'o clock in his vehicle and noted down the names
of four or five persons including that of PW-2, obtained their signatures
and went away.
49. Therefore, there were two versions, regarding the date of
conduct of inquest. According to one version, it was conducted on the
date of the incident namely, 08.03.2012, but according to I.O., it was
conducted on 09.03.2012. Interestingly the I.O added one more dimension
to the contradiction at one stage of the cross-examination. He claimed
A
B
C
D
E
F
G
H
619
that after registering the case he visited the occurrence spot same day
at 9:00-9:30 at night.