New Delhi: "Court cannot make someone a victim of injustice to compensate for the injustice to the victim of a crime", the Supreme Court Wednesday said while acquitting a death row convict for the rape and murder of a six-year-old.
The court, which pulled up the Uttar Pradesh police for faulty investigation, also said by not conducting the investigation properly, the prosecution has done injustice to the family of the victim.
It said that when the offence is heinous, the Court is required to put the material evidence under higher scrutiny but the erroneous approach on the part of the Sessions Court and the High Court has led to the "poor man" being ordained to be dispatched to the gallows.
A bench of Justices S Abdul Nazeer, AS Bopanna, and V Ramasubramanian said that it cannot shy away from the fact that it is a ghastly case of rape and murder of a six-year-old child.
"By not conducting the investigation properly, the prosecution has done injustice to the family of the victim. 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 bench said.
The top court passed the verdict on an appeal filed by a man called Chotkau who was convicted for the offences punishable under Sections 302 (murder) and 376 (rape) of the IPC and sentenced to death by the Sessions Court, which was also confirmed by the Allahabad High Court on a reference.
The bench said that this is a case where the convict is "so poor" that he could not afford to engage a lawyer even in the Sessions Court and after his repeated requests to the trial court, 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 a reasonable doubt. Therefore, the appeals are allowed and the conviction and penalty are set aside. The appellant shall be released forthwith if not wanted in connection with any other case", the bench said.
The top court was critical of the approach of the High Court and the trial court and said, "Before wrapping up, it is necessary to say something about the approach adopted by the Sessions Court and the High Court. In cases of this nature, the court is obliged to assess the evidence on the test of probability".
The bench said that though wide discretion is given to the Court to consider the "matters before it" such evidence has to be sifted carefully before recording satisfaction.
"It is not the quantum, but what matters is the quality. Both the Courts below found the evidence of Prosecution witnesses of 1 to 3 acceptable. The seriously inherent contradictions in the statements made by them have not been duly taken note of by both courts. When the offence is heinous, the Court is required to put the material evidence under higher scrutiny", it said.
The bench said that on careful consideration of the reasoning of the Trial Court, as confirmed by the High Court, "we find that sufficient care has not been taken in the assessment of the statements made by Prosecution Witnesses 1 to 3".
Referring to the facts of the case and statements of prosecution witnesses, the bench said that no one spoke as to who sent the FIR to the court and when it was sent.
"Strangely, even the copy of the post-mortem report was admittedly received by SHO on March 13, 2012, though the post-mortem was conducted on March 9, 2012. It was the same date on which the FIR reached the Court. These factors certainly create a strong suspicion on the story as projected by the prosecution, but both the Courts have overlooked the same completely", it said.
It added, "This erroneous approach on the part of the Sessions Court and the High Court has led to the appellant being ordained to be dispatched to the gallows".
The bench said that the evidence of Prosecution witnesses 1 to 3 is not trustworthy and 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," it said and allowed the appeal of the man while setting aside his conviction for rape and murder of the minor and the capital punishment awarded to him.
As per the police, on March 8, 2012, at around 8 pm one Kishun Bahadur, resident of Village Semgarha of District Shravasti lodged a complaint at Police Station Ikauna alleging that at about 4 pm on the same day, Chotkua took his niece aged about 6 years under the pretext of showing dance and song performances on the occasion of the Holi Festival.
It said that when the girl did not return home, a search was conducted and it was found that Chotkua 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 the name of 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.
The prosecution said that therefore, invoking the last seen theory and based on circumstantial evidence, the appellant was charged for the commission of the offences of raping the minor girl and murdering her.
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