Daya Shankar Giri vs State Of U.P.
2015 Latest Caselaw 4353 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 

 
Court No. - 27
 

 
Case :- CRIMINAL APPEAL No. - 101 of 2013
 
Appellant :- Daya Shankar Giri
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- I.K. Upadhyay,Pradeep Kumar Rai
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. The appellant Daya Shankar Giri has preferred this appeal against the judgment passed by Additional Sessions Judge, Court No. 3, Ballia on 20.12.2012 in S.T. No. 3A of 2009 (State vs. Daya Shankar and others), registered as Case Crime No. 28 of 2008, under Sections 376, 313, 506 I.P.C., Police Station Phephana, District Ballia, whereby the accused appellant was convicted for 10 years R.I. and Rs. 5000/- as fine under Section 376 I.P.C., for 10 years R.I. and Rs. 5000/- as fine under Section 313 I.P.C. and for 2 years R.I. and a fine of Rs. 1000/- under Section 506 Sub Clause (2) I.P.C. with default stipulation. All the sentences were to run concurrently.

2. The prosecution case as unfolded is that, a written report was lodged by Nirmala Devi written by Shamsher Giri stating that she is resident of Police Station Phephana, District Ballia. Her daughter Ranjana Giri aged about 17 years was taken away by the accused, 3 to 4 months prior to 28.02.2008 and committed rape on her. When the victim came back to her house and narrated the whole story, the complainant went to the house of the accused to rebuke him but Daya Shankar Giri, Kamal Giri and Kripa Shankar Giri threatened to murder the complainant and said that her husband was a lunatic and she should stay away. They further said that they had nobody to take care of them and they were beggars, if they tried to lodge the case, they would be murdered. The complainant kept quiet since she was helpless. Her daughter got pregnant due to rape committed by Daya Shankar Giri. When the complainant revealed this fact to her neighbours, they asked Daya Shankar Giri about the matter. At this Daya Shankar Giri threatened to kill them too. On 23.02.2008, Daya Shankar Giri carried away Ranjana Giri at 07:00 P.M. to some unknown place at Ballia and got her fetus aborted. The complainant kept tracing her daughter, and on 24.02.2008, the accused Daya Shankar left the victim at the door of the house of the complainant and said that he had got the child aborted. The victim was having health problem due to abortion who was on the verge of death. She was admitted in the Government Hospital and the report was lodged.

3. On the basis of this report, the case was registered as Case Crime No. 28 of 2008, under Sections 376, 313, 504 and 506 I.P.C. in the presence of S.I. Dilawar Hussain PW-6 to whom investigation was entrusted. This witness commenced the investigation, prepared the site plan, recorded the statements of witnesses and proved the site plan as Exhibit Ka-4. He recorded the statement of the victim and Dr. S.P. Rai on 29.02.2008. On 06.03.2008, vegorous search was made for the accused. On 07.05.2008, the statement of the victim was got recorded before the Magistrate under Section 164 Cr.P.C. Some witnesses had filed the affidavits which were copied in the case diary. On 16.05.2008, charge sheet was submitted against the accused which was proved as Exhibit Ka-5. This witness proved the chick report and copy of G.D. as Exhibit Ka-6 and Exbibit Ka-7 respectively.

4. The prosecution examined seven witnesses. PW-1 is Nirmala Devi, the complainant who proved the chick report as Exhibit Ka-1. PW-2 is victim Ranjana Giri. PW-3 is Rama Devi who is said to be an eye witness regarding certain matters. PW-4 is Dr. S.P. Rai who examined the victim and proved the discharge slip as Exhibit Ka-3. PW-5 is Dr. R.N. Upadhyay under whose treatment also the victim was kept. PW-6 is I.O., S.I. Dilawar Hussain and PW-7 is Dr. Prabha Shankar Walia who examined the victim and proved the ultrasound report as Exhibit Ka-8. The bed head ticket relating to the victim is Exhibit Ka-2.

5. After examining seven witnesses, the prosecution closed its evidence.

6. The statement of Daya Shankar was recorded under Section 313 Cr.P.C. in which while denying the allegations, he has stated that Babban Giri has got the case falsely registered against him and he is getting the case prosecuted by giving money to the prosecutrix. No defence witness was examined.

7. After hearing the counsel for the parties, learned lower court has passed the impugned sentences which are under challenge in this appeal.

8. I have heard learned counsel for the appellant, learned A.G.A. and perused the original record.

9. The following points were raised before this Court which needs consideration :-

* (i) That the F.I.R. is delayed.

* (ii) That all the witnesses are related witnesses whose evidences are fully unreliable.

* (iii) The complainant and the scribe are inimical to the accused.

* (iv) The medical evidence and the ocular evidence are contradictory to each other.

(i) + (iii) That the F.I.R. is delayed and the complainant and the scribe are inimical to the accused:-

It has been contended on behalf of the appellant that the first information report is delayed and in case the first information report is delayed it raises a shadow of doubt on the prosecution case. The first information report is the backbone of a criminal case and the police machinery is set into motion as soon as the first information is lodged.

In 2012 Cr.L.J. 2713 (Mahesh and another vs. State of Madhya Pradesh) it has been held that it is established law that so far as the first information report is concerned, it is only a report submitted informing the police about the commission of the crime. It is not required that the first information report should contain a detailed and vivid description of the entire incident. Further it cannot be expected that the informant to give each and every minute details of the incident in the first information report as the first information report is not an encyclopedia of the prosecution case.

In the present case, according to the chick report, the occurrence took place about 3 to 4 months prior to the lodging of the first information report which was lodged on 28.02.2008 at 16:10 hrs. The distance of the police station from the place of occurrence being 4 Kms. Now it has to be seen, whether any explanation has been given by the prosecution for the delay in lodging the first information report and whether the said delay is reasonable in the peculiar facts of the case. As far as Exhibit Ka-1, the first information in this matter is concerned it relates to two occurrences. The first one is when the prosecutrix was lifted by the accused and was raped and the second was on 23.02.2008 when the victim was taken by the accused and her pregnancy was got terminated. In the report, the informant being mother of the prosecutrix has specifically stated that after the victim was raped, she came back to her house and told her mother about everything. At this her mother went to the house of the accused but the accused threatened her, hence, she kept mum due to fear. As far as the second incident dated 23.02.2008 is concerned, she has stated that the accused dropped the victim at her house on the next day i.e. 24.02.2008 and told her not to reveal this fact to anybody since she had got the girl aborted. PW-1 Nirmala is the only witness who had explained about the delay in lodging the first information report. PW-1 Nirmala has said that 22 months prior to her statement, the accused took away her daughter and raped her. Her daughter returned weeping and told her all the incident happened with her. At this, PW-1 Nirmala went to the house of Daya Shankar where she was threatened, hence she kept mum due to fear. We cannot loose sight of the fact that generally, in cases of rape the parents are hesitant in lodging the first information report due to fear being caused to the reputation of the family because in rape cases, the conscious and personality of a lady are shattered and in the rural background also it is thought that a victim of rape would not be capable to show her face in the society. But in this particular case, the complainant kept mum not for the reputation of her family but she said that she kept mum due to fear and threaten to her life. For a moment, keeping a side this explanation, coming to the incident of 23.02.2008 when the accused again took away the victim who was returned and dropped her at the door of her house on 24.02.2008 but again the informant did not lodge the report and from 24.02.2008 to 28.02.2008, she waited for what, is not clear from the record. Thus, according to the informant, due to fear, she did not report both the matters to the police. The feeling of self-preservation is generally carried by the people but repeated injury to the reputation and self-respect and physical violence with a young daughter should not have been tolerable to the informant.

The question mark has also been raised about the authenticity of the first information report inasmuch as the first information report is said to have been written by one Shamsher Giri son of Babban Giri who is said to be inimical with the accused. PW-1 Nirmala has stated that she dictated the report to Shamsher Giri but contradicting herself, she has stated that she had lodged the report at the police station after getting it scribed by an advocate. She had narrated the occurrence to an advocate who has scribed the report. She put her thumb impression and the thumb impression of her daughter on the report and presented it at the police station. But a perusal of the first information report shows that it only bears the signature of PW-1 Nirmala and thumb impression of prosecutrix on the report is wanting. She further stated that she did not get any paper written by Shamsher son of Babban. Infact the I.O. has got it scribed by Babban. Now this statement of PW-1 is contradictory to the documents on record because the first information report has been scribed by Shamsher son of Babban. The victim has stated in cross-examination that she does not know Shamsher son of Babban and according to her knowledge, there is no person named as Shamsher in her village. PW-1 Nirmala has stated that she is ignorant about any litigation between Babban Giri father of the scribe and the accused. Thus, shadow of doubt has been cast on the first information report itself. Hence, I conclude that besides there being inordinate delay in lodging the first information report, there is shadow of doubt on the first information report itself which leads to the conclusion that there are chances of embezzlement and the exaggeration in the first information report. Whereas PW-2 the prosecutrix has admitted that there is enmity between her family and the family of the accused inasmuch as civil and revenue litigation were pending between both the parties.

(ii) That all the witnesses are related witnesses whose evidences are fully unreliable :-

Counsel for the appellant has submitted that this is a case of sole testimony of the prosecutrix who is an interested witness, hence her evidence cannot be relied upon.

In cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is no a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face vaule, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu vs. State of Maharashtra, AIR 2006 SC 508.

The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & Ors. vs. State of Maharashtra, (1999) 1 SCC 220.

Ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. It is to be emphasized that rape posses the greatest distress and humiliation to the victim but at the same time a false allegation of rape can definitely cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication.

Thus, in the case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be violence to the very principles which govern the appreciation of evidence in a criminal matter.

In the cases where the court proposes to pass its decision on the sole testimony of a witness, the court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation.

Coming to the evidence of the star witness PW-2 Ranjana Giri, she has stated that on the fateful day when she was going from her house two years prior to her statement, to buy chili, the accused Daya Shankar hung her and took her to his house, where nobody was present. the accused raped her in his house.

Presently, I am dealing with only the offence of rape, regarding which in cross-examination PW-2 Ranjana Giri has stated that since she is illiterate, she has no knowledge of the directions but in her next breath contradicting herself she has stated that towards the south of the house of Daya Shankar, the house of Bhaiya Ji was situated who was also called as Bhuvneshwar. she has again specified the direction of the room and said that she was raped in a room which was situated towards the south of the entrance. As regards the rape is concerned, the prosecutrix PW-2 has stated that her panty was stained with blood. She was raped for half an hour but she did not sustain any injury except an abrasion but contradicting her daughter PW-1 Nirmala has stated that at the time of occurrence, her daughter has not wearing a panty. No doubt, she could be ignorant of this fact but she could have shown her ignorance but specifically stating that her daughter has not wearing a panty whereas the victim has stated that she had worn a panty, is a major contradiction between the statements of the mother and the daughter.

PW-2 the prosecutrix has further stated that she had shown the place of occurrence to the I.O. whereas PW-1 Nirmala has stated that neither she nor any member of the family has shown the place of occurrence to the I.O.

Again contradicting her mother PW-2 the victim has stated that she and her mother keep mum on the incident of rape due to her reputation.

PW-3 Rama Devi who has given the hearsay evidence is an interested and related witness. She has stated in her statement that the informant Nirmala PW-1 is her younger Deorani. She has stated that she has not seen the occurrence but has stated what was told to her. Thus, the rape being committed on a girl by a man of 65 years of age continuously for half an hour, would definitely cause injury to the victim. In this case, there was no injury on the body of the victim as admitted by her except an abrasion. Although she has admitted that she was raped on the floor and no cloth was under her when she was being raped. Thus, the story of rape does not stand proved.

Coming to the other incident, which has said to have taken place on 23.02.2008 when it is said that the prosecutrix being pregnant was taken away by jeep by the accused and the fetus of victim was aborted, again does not stand proved from the evidence of PW-2 inasmuch as PW-2 has stated that three months after the incident of rape the accused took her by a jeep to Ballia and said that she had problem in her abdomen, he would get her treated. At this pretext, he took her to an unknown place where an unknown lady gave an injection to the victim and when she became unconscious the child was aborted. It appears that when the prosecutrix and her mother came to know about the pregnancy of the victim, the whole story was built up. PW-1 has stated that due to rape by the accused, the prosecutrix got pregnant. When PW-3 and other went to the accused to scold him for that, all of them have threatened. What was the reason why the mother of the victim did not inform the police when the second time her pregnant daughter was picked up by same accused who had committed rape on her. A daughter is generally supposed to be close to her mother. Prosecutrix PW-2 has further stated that she was admitted in the hospital because she was suffering from abdominal pain.

The statement of I.O. PW-6 Dilawar Hussain is very interesting who has stated that the place of occurrence was identified to him by the complainant. He has further stated that he did not inquire about the clothes of the victim and during the complete investigation, he could not find out as to who had aborted the victim. Although in parcha no. 2 of the case diary, he has specified that when the victim would feel better, the victim would get medically examined so that the factum of abortion may be verified. I.O. has further stated that the victim was taken to the Magistrate by her mother and an advocate for recording her statement and during the course of investigation he could not collect any medical evidence which could prove the date of commitment of rape and abortion.

No doubt, faulty investigation, unless it strikes at the root of the case, could not be a ground to acquit the accused but in the present case, there is practically no investigation at all, by the I.O. and the extent of interest, which the trial court took, in conducting the trial is that the statement of the victim recorded under Section 164 Cr.P.C. was not even put to the victim or got proved by her. The defence had filed certain papers numbered as 28-Kha which is copy of judgment passed in Criminal Revision No. 206 of 2011 in which Babban Giri father of the scribe is the revisionist and the present accused is opposite party no. 5. This was a revision against the order passed under Section 133 Cr.P.C., 29-Kha is copy of application, 30-Kha is copy of complaint, 31-Kha is copy of application, 32-Kha is copy of judgment in which the present appellant is the accused and the father of the scribe Babban Giri was informant, 33-Kha is copy of the order passed by S.D.M., Ballia dated 13.06.2011 which go to prove the enmity between the father of the scribe and the accused person. But surprisingly none of these public documents have been marked as exhibits. All the above circumstances if taken cumulatively, go to prove that the evidence of the prosecutrix is wholly unreliable, not worthy of credit and thus the whole prosecution story falls down like heap of cards. Thus, I conclude that the prosecution has miserably failed to prove its case beyond all reasonable doubts.

(iv) The medical evidence and the ocular evidence are contradictory to each other :-

Learned counsel for the appellant has submitted that some medical evidences have been produced to show that after abortion, some pieces of the body of the child were left in the uterus of the victim, due to which she was suffering from abdominal pain. PW-4 Dr. S.P. Rai who has conducted the check up of the victim, has referred her to gynecologist. PW-5 is Dr. R. N. Upadhyay has stated that the victim was suffering from abdominal pain because during abortion, some part of the body of the child were left in her uterus, which were visible in the ultrasound plates. PW-7 is Dr. Prabha Shankar Walia who conducted the ultrasound and found that some part of the body of the child and blood clots were present in the uterus of the victim but she has specifically stated that Dr. S.P. Rai had not referred the matter to her.

The oral evidences of all the three doctors are based on Exhibits Ka-2, Ka-3 and Ka-8. Exhibit Ka-2 is bed head ticket which mentions the age of the victim to be 18 years and the date of her admission in the hospital on 26.02.2008. The date of discharge is wanting in the bed head ticket but the dates on the bed head ticket ran up to 08.03.2008. The ultrasound was conducted on 27.02.2008. It is reported as Exhibit Ka-8 in which the uterus was found bulky anteverted uterus containing abortus with mild amount of free fluid seen in pouch of douglus, possiblity of uterine perforation. This goes to show that definitely abortion took place and pieces of the body of the child were found in the uterus of the victim but who aborted the victim or who forcibly aborted her is not on record. A stray statement was given by the prosecutrix that she was taken in a jeep to Ballia by the accused and she was aborted there, would not be sufficient to prove the evidence against the accused under Section 313 I.P.C. Thus, the medical and the ocular evidence are contradictory to each other. No doubt it is settled law that in such situation reliance should be placed on the ocular evidence but in the present case, the ocular evidence is itself shaky, unbelievable and unworthy of credit.

10. The prosecution has miserably failed to prove the charges against the accused person beyond reasonable doubt, as such the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 20.12.2012 passed by Additional sessions Judge, Court No. 3, Ballia, in Sessions Trial No. 3A/2009 is hereby set aside.

11. Accordingly the appeal is allowed.

12. The appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.

13. Before parting with the case, I would like to say a few words, as to how, the trial court dealt with the matter in a very hasty way. The duty of a Judge is very pious, inasmuch as, the fate, life and liberty of the accused lies in the hands of a Judge, besides the victim, informant and family members of the sufferer look forward for justice towards the Judge. A procedure has been prescribed in law about the way in which trial should be conducted by the Sessions Court. The Indian Evidence Act takes care as to how documents should be proved. The Indian Evidence Act applies equally in civil and criminal matters. Section 61 and onwards of Chapter V of the Indian Evidence Act says as to how documents should be proved and how public documents should be dealt with. I am constrained to see that how the trial courts are dealing with these matter in such a cursory way. The trial court sat as a spectator when the statement of the prosecutrix was being recorded, because her statement recorded under Section 164 Cr.P.C. was not at all put to her. Besides the defence filed a bunch of public documents vide 27-Kha to 46-Kha but the trial court did not bother to take care of this matter. The trial court was expected to handle the file in a systematic way.

14. General Rules (Criminal): Rule 27 has taken care of this matter and deals with marking of exhibits, which is as under:-

27. Marking of Exhibits:-

(a) Every document, weapon or other article admitted in evidence before a court shall be clearly marked with the number it bears in the general index of the case and the number and other particulars of the case and of the police station.

(b) The court shall mark the documents admitted in evidence on behalf of the prosecution with the letter K followed by a serial numeral indicating the order in which they are admitted, thus;

Ex. Ka1, Ex. Ka2, Ex. Ka3 etc.

and the documents admitted on behalf of the defence with the letter Kha followed by a numeral, thus-

Ex. Kha1, Ex. Kha2, Ex. Kha3 etc;

(c) In the same manner every material exhibits admitted in evidence shall be marked with numerals in serial order, thus-

Ex. 1, Ex. 2, Ex. 3, etc.

(d) All exhibit marks on documents and material exhibits shall be initialled by the presiding officer,

(e) No document or material exhibit which has been admitted in evidence and exhibited shall be returned or destroyed until the period of appeal has expired or until the appeal has been disposed of, if an appeal be preferred against the conviction and sentence.

(f) Documents or material exhibits which have not been admitted in evidence should not be made part of the record, but should be returned to the party by whom they were produced.

15. Thus, it was the bounden duty of the Court to take care of the documents filed by the defence also and to exhibit the same as prescribed under Rule 27 of the General Rules (Criminal). It is also the duty of the trial court to return the documents, which were not admitted in evidence, to the party by whom they were produced.

16. In this particular case, the documents admitted on behalf of the defence should have been marked as Exhibit Kha-1 and so on. The learned trial judge seems to be in hurry to dispose of the matter and to convict the accused any how by hook or by crook.

17. The Judge is the "trier of fact" deciding whether the evidence is credible or not and which witnesses are telling the truth. The trial Judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The advisory nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial Judge should not allow the proceedings to be used for any other purpose. The trial Judge should give each cases an individual treatment and should require that every proceedings before him or her be concluded with unhurried and quiet dignity. The trial conducted by the trial Judge enables him to draw the first ever conclusion of a legal dispute. Such conclusion if necessary may be reshaped by the court having superior jurisdiction. But it is to be admitted that the trial Judge at the first instance chants the mantras the rule of law rendering justice to the public. Thus, I have no hesitation to say that the trial Judge is the glittering facade of the judicial edifice which symbolizes the temple of justice.

18. Judges thus are of privileged class and vested with duties of great responsibility, holding offices of public trust. It has been often said that the duty of a Judge is a divine duty. The concept of rule of law is dependent on an independent, fair and competent judiciary since Judges are, to borrow words from the preamble of Model Code of Judicial Conduct adopted by American Bar Association in 1990.

19. When we talk of ethics, we mean moral principles that have evolved to keep us on the path of virtue or, to put it simply, morally correct. When we use the word "canon", it refers to principles of morality that are regarded as very lofty and it is expected that the trial court should be guided by the law and procedure laid down for conducting trials and it should not be necessary that now and again the trial Judges should be reminded to follow the procedure laid down therein.

20. I am aware of the fact that there is huge pendency in the district courts but this does not mean that such sensitive cases in which the life, liberty and the reputation of the litigant are involved, should be dealt with by judges in such an indifferent and heartless manner. I fail to understand, why the conscious of a judge was not shaken while deciding the case in this manner.

21. Thus, it is hereby directed that all the trial court judges, deciding criminal matters shall ensure that proper Exhibits should be marked on the prosecution papers as well as on the defence papers and a list of exhibited papers be prepared along with the description of the witnesses who have proved it, and if the document is the public document, it may be dealt with accordingly.

22. It appears that the aforesaid systematic procedure has been lost sight of and even the Judges have practically forgotten to conduct trial systematically. Thus, before parting with the case, I feel that I will be failing in dischargeing my duties, if a word of caution is not written for the trial courts.

23. The Registrar General of this Court is directed to circulate copy of this Judgment to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgment.

24. Let a copy of this order be placed before the Registrar General for immediate compliance.

Order Date :- 20.11.2015

sailesh