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2013 DIGILAW 255 (CHH)

GIRDHARI PRASAD @ GOPAL v. STATE OF C. G.

2013-08-30

Rangnath Chandrakar, Yatindra Singh

body2013
JUDGMENT 1. The relevant consideration in this case is, 'Should the prosecution leave out any evidence favourable to the Accused or if it does so, then should the court be silent spectator or try to redress it'. It arise in this appeal against the order of conviction and sentence dated 09.02.1998, passed by the First Additional Sessions Judge, Bastar at Jagdalpur (the ASJ) in Sessions Trial No-515 of 1996, awarding life imprisonment to Girdhari Prasad @ Gopal Prasad Dubey (the Accused) under section 302 Indian Penal Code (IPC). THE FACTS 2. On 14.07.1996, at about 12.00 hours, Sub-Inspector Shri PK Sharma (PW-4) found Kumari Sangeeta (the Deceased) and the Accused top of her on a road in an injured condition. On enquiry, he found that the Deceased was already dead; whereas, the Accused was unconscious. 3. On the same day, a morgue intimation (Ex.P-13) and Dehati Nalishi (Ex.P-3) were recorded and thereafter, on the basis of the Dehati Nalishi, a First Information Report (Ex.P-9) (the FIR) was also recorded. 4. The Dehati Nalishi (Ex.P-3) is in detail and the allegations in the same are as follows: The Accused and his wife Smt Usha (PW-1) live in Raipur. The Deceased was the sister-in-law of the Accused. She was living at Durg; The Accused had taken the Deceased from Durg to Raipur, to meet her sister (namely his wife). The Deceased, thereafter, never came back to her house; The Accused had taken the Deceased to Kirandul, district Bastar on 13.07.1996 and stayed at Shree Lodge; On 14.07.1996, they had kept their luggage and clothes in the lodge and went out at 10.00 hours; The Accused killed the Deceased by stabbing her two times in the stomach and thereafter, being afraid, tried to kill himself. He, in the injured condition, lied down on the dead-body of the Deceased; The Accused is guilty of criminal act and proceedings be taken against him. 5. The Police investigated the case and submitted a report and the case was committed to the session court. 6. The ASJ framed charge on 03.03.1997 charging the Accused under sections 366, 376 and 302 of the Indian Penal Code (the IPC). 7. 5. The Police investigated the case and submitted a report and the case was committed to the session court. 6. The ASJ framed charge on 03.03.1997 charging the Accused under sections 366, 376 and 302 of the Indian Penal Code (the IPC). 7. Amongst others, the prosecution filed the following relevant documents: Inquest report (Ex.P-1); Police statement of Smt Usha (PW-1), wife of the Accused) (Ex.P-2); Dehati Nalishi (Ex.P-3); Application for post-mortem (Ex.P-5); Seizure memo of knife (Ex.P-6); Memo of the seized articles sent to FSL (Ex.P-8); First Information Report (Ex.P-9); Post-mortem report (Ex.P-10); Report of the doctor regarding the knife (Ex.P-11); Morgue intimation (Ex.P-13); Seizure memo of underwear of the Deceased (Ex.P-14); Application for medical examination of the Accused regarding capability to perform sexual intercourse (Ex.P-15). 8. In order to prove its case, the prosecution examined the following witnesses: ... Smt Usha Dubey (PW-1): Wife of the Accused. She was declared hostile, but has admitted that the Accused had confessed the crime; Vidyanand Kumar (PW-2): Investigating Officer (the IO), he also recorded the Dehati Nalishi; Dr KL Suryavanshi (PW-3): He conducted the post-mortem; PK Sharma (PW-4): Sub-Inspector, who saw the body of the Deceased as well as the Accused for the first time and reported the same in the police station; Ayodhya Prasad (PW-5): Father of the Deceased, who stated that the Accused had taken the Deceased with his consent to Raipur; Guman Prasad (PW-6): Brother of the Deceased, he also stated that the Accused had taken the Deceased with consent on 78th June, 1996; Satyanand (PW-7): He is a witness of the seizure memo of the underwear of the Deceased; Arjun Singh (PW-8): Sub-Inspector, who had sent the underwear for examination; Girwarlal (PW-9): Manager of Shree Lodge in Kirandul, district Bastar, he stated that lastly the Deceased had gone out with the Accused at 10:00 hours on 14.07.1996. 9. The statement of the Accused under section 313 CrPC was recorded on 05.12.1997. The Accused stated that: He had taken the Deceased from Durg and had also taken her out of Raipur; He did not kill the Deceased and was falsely incriminated. 10. By the order dated 09.02.1998, the ASJ acquitted the Accused under sections 366 and 376 IPC, but convicted him under section 302 IPC and sentenced him to life Imprisonment. Hence, the present appeal by the Accused. THE DECISION 11. We have heard counsel for the parties. 10. By the order dated 09.02.1998, the ASJ acquitted the Accused under sections 366 and 376 IPC, but convicted him under section 302 IPC and sentenced him to life Imprisonment. Hence, the present appeal by the Accused. THE DECISION 11. We have heard counsel for the parties. Deceased was Major 12. It is admitted to prosecution (see testimony of PW-1, PW-5, PW6) that the Deceased had gone willingly with their consent. In view of this, the trial court rightly acquitted the Accused under section 366 IPC. 13. Along with the police report, the prosecution had filed a photostat copy of the high school certificate of the Deceased. In this certificate, the date of birth of the Deceased is mentioned as 04.07.1977. If the age of the Deceased is taken from this date, she would be a few days more than 19 years, on the date of the incident, namely, 14.07.1996. 14. The photostat copy of the High School certificate was filed by the prosecution; they do not deny it but it has not been exhibited as no one has proved it. Yet, the trial court has taken into account for holding that the Deceased was major. 15. There is some debate at the bar, whether the photostat copy of the High School certificate could be taken into account or not but it is not necessary to go into this question. 16. In the post-mortem report, the age of the Deceased was mentioned to be 17 years. The medical age is generally an approximation and there can be a difference of two years in the same. 17. In the present case, the father, brother, and sister (wife of the Accused) of the Deceased have been examined. None of them has stated that the Deceased was minor. 18. The trial court has also held the Deceased to be major on the date of the incident. It is because of this and the admitted fact (see testimony of PW-1) that they were having affair, the Accused was acquitted under section 376 IPC. There is no appeal by the State against the acquittal. 19. Considering the aforesaid aspects of the case, we hold that the Deceased was major on the date of the incident. Accused had Knife Injuries 20. The police had referred the Accused for medical examination but did not file his Medico-legal certificate (MLC) in the court. 21. There is no appeal by the State against the acquittal. 19. Considering the aforesaid aspects of the case, we hold that the Deceased was major on the date of the incident. Accused had Knife Injuries 20. The police had referred the Accused for medical examination but did not file his Medico-legal certificate (MLC) in the court. 21. The trial court by its order dated 05.12.1997 asked the prosecution to summon the MLC of the Accused from Kirandul hospital and Maharani Hospital, Jagdalpur. This was produced by the prosecution in the form of photostat copies. It included the letter sent by the police for medical examination of the injuries of the Accused as well as his MLC. 22. The MLC of the Accused indicates the following injuries: Stab injury on the abdomen just above umbilicus-1" x 1"; Stab injury just above abdomen- ¼” x ¼” x ¼” Stab injury on the abdomen- 1" x ½" x ½" 23. The MLC of the Accused is a photostat copy. Though, it is not disputed by the prosecution and they had produced it but it is not exhibited as no one has proved it. There is similar debate at the bar regarding admissibility of the MLC. However, it is not necessary to decide this question. 24. It is the prosecution case that the Accused was also injured in the incident. This is so stated in the morgue intimation (Ex.P-13), Dehati Nalishi (Ex.P-3) as well as in the FIR (Ex.P-9). It is also the case of the prosecution that the Accused stabbed the Deceased, thereafter, being afraid, stabbed himself. 25. In the morgue intimation (Ex.P-13) {reported by the Sub-Inspector (PW-4)}, it is mentioned that the Accused was lying in the unconscious state over the dead-body of the Deceased and blood was oozing out. 26. It is also admitted to the prosecution that Smt Usha (PW-1) has stated that she had gone to see her husband in the hospital. He was admitted for the stomach injuries. 27. A knife was also seized from the spot (Ex.P-6). Considering the evidence on record, we are of the opinion that the Accused had knife injuries. Case Not Proved Beyond Reasonable Doubt 28. There is no eyewitness of the incident. The Accused has been convicted under section 302 IPC on his extra-judicial confession, as stated by his wife Smt Usha (PW-1). A knife was also seized from the spot (Ex.P-6). Considering the evidence on record, we are of the opinion that the Accused had knife injuries. Case Not Proved Beyond Reasonable Doubt 28. There is no eyewitness of the incident. The Accused has been convicted under section 302 IPC on his extra-judicial confession, as stated by his wife Smt Usha (PW-1). She stated that : The Accused had informed her that he and the Deceased wanted to die together; It is because of this reason that they caused injuries to each other with knife. The question is whether this statement can be relied or not. 29. The prosecution case is that the Accused initially caused knife injuries to the Deceased and thereafter, being afraid, caused knife injuries to himself. The statement of Smt Usha (PW-1) is contrary to the prosecution case. 30. Smt Usha (PW-1), the wife of the Accused was declared hostile. But she has admitted in her cross-examination that her husband was having affair with the Deceased and whenever she pointed out the same, he used to quarrel with her and was ready to beat her. 31. Considering the entire circumstances of the case, this possibility cannot be ruled out that Smt Usha (PW-1) may be unhappy with her husband and may have given statement more than what might have been confessed by the Accused. 32. The post-mortem report (Ex.P-10) shows that the Deceased had two knife injuries; whereas, the Accused had more injuries. It also looks improbable that the Deceased could cause three knife injuries after she received two knife injuries. It was also not possible for the Accused to cause knife injuries to the Deceased after he received three knife injuries because he was admittedly lying unconscious at the time when Sub-Inspector (PW-4) saw him. 33. On the spot, only one knife has been seized (seizure memo- Ex.P6). The finger prints on the knife have not been identified and it is not clear whether the Accused alone used that knife or both of them used the knife. 34. The Accused was aged about 23 years and the Deceased was aged about 19 years. They had run away from the house and were having an affair; their bodies were found on the kachha road on the way to jungle; it was a lonely place. It is just possible that both of them might tried to commit suicide. 35. 34. The Accused was aged about 23 years and the Deceased was aged about 19 years. They had run away from the house and were having an affair; their bodies were found on the kachha road on the way to jungle; it was a lonely place. It is just possible that both of them might tried to commit suicide. 35. The punishment for attempt to commit suicide is one year and fine. The Accused has already been in jail for more than eight years. 36. Considering all aspects of the matter, in our opinion : The extrajudicial confession of the Accused, as stated by Smt. Usha (PW-1) cannot be relied upon; and The prosecution has not been able to prove beyond reasonable doubt that the Accused had given knife blows to the Deceased. DUTY OF PROSECUTION AND COURT-SOME SUGGESTIONS 37. The Accused was charged under section 376 IPC and as such, the age of the Deceased was a relevant consideration. 38. In order to decide the age of the Deceased, high school certificate was relevant document. A photostat copy of the same was filed along with the police report and this was in favour of the Accused. 39. The prosecution did not prove the photostat copy of the High School certificate. It appears that the defence also did not take any steps to prove it as it was filed by the State. However, when we wanted to take it into account, it was objected by the counsel for the State on the ground that it is not admissible. So is the case with the MLC of the Accused. 40. There were injuries on the Accused. The police had referred the Accused to the hospital for treatment. He was admitted in the hospital and he was treated in the hospital. This was also relevant factor to be taken into account while deciding the appeal. 41. Nevertheless, the police did not file the MLC of the Accused before the court. When the court ordered it to be produced, only a photostat copy was produced, but was not proved. It appears that the defence also never bothered to prove it as it was summoned by the court and filed by the prosecution. 42. 41. Nevertheless, the police did not file the MLC of the Accused before the court. When the court ordered it to be produced, only a photostat copy was produced, but was not proved. It appears that the defence also never bothered to prove it as it was summoned by the court and filed by the prosecution. 42. However, when we wanted to consider the MLC, it was objected by counsel for the State on the ground that it is not exhibited despite the fact that it was also not disputed. This is strange attitude, on the part of the State. 43. A criminal prosecution is not persecution; it is not hide and seek game: it is search for truth. A hundred years before Christ, Manu in his law code said : 'As a hunter tracks a wounded beast to its lair by drops of blood, so let a king track crime to justice by close search for proof.' An Accused can only be punished if he is proved to be guilty beyond reasonable doubts. 44. The State cannot suppress any relevant material merely because it would support the case of an accused {see Samadhan Dhudaka Koli Vs. State of Maharashtra, AIR 2009 SC 1059 : 2008(16) SCC 705 (12)}. 45. Justice Holmes, rightly observed in Olmstead Vs. US 277 US 438: 'We have to choose and for my part I think it is less evil that some criminal should escape than the government should play an ignorable part.' 46. It is the duty of the State to produce the relevant documents in a criminal case. It cannot suppress the documents that are in favour of the Accused. The prosecution should also not oppose in taking into consideration, those factors and documents that are not disputed. 47. In any case, if a relevant fact has come to the knowledge of the court, it should have got them proved or should have asked the State to clarify, if they object to the documents being exhibited or taking them into account so that any technical objections before the higher courts may be avoided. After all, the courts are not silent spectator in a criminal trial. They are the final arbiter on the question, whether an accused is guilty or not and whether the prosecution has proved its case beyond reasonable doubts. 48. After all, the courts are not silent spectator in a criminal trial. They are the final arbiter on the question, whether an accused is guilty or not and whether the prosecution has proved its case beyond reasonable doubts. 48. In this case, trial court should have recorded the clarification or else got the documents exhibited. 49. We leave the matter here, but would recommend that this aspect may be emphasised during the training of the Public Prosecutors as well of the Judges. CONCLUSIONS 50. In view of our finding that the prosecution has failed to prove its case beyond reasonable doubt, the appeal is allowed. The conviction and sentence awarded by the ASJ are set aside. The Accused is acquitted of all charges. 51. The Accused is on bail. He need not surrender. However, the bail bonds are not discharged at this stage. They shall be operative for the purpose and in terms of section 437-A CrPC as if they were executed in pursuance of the same for the period mentioned therein and thereafter shall stand discharged. 52. With the aforesaid observations, the appeal is allowed. HEADLINES Duty of Prosecution and Courts in criminal case, dismissed. Appeal Allowed.