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2016 DIGILAW 514 (ALL)

JASPAL v. STATE OF U. P.

2016-02-12

RANJANA PANDYA

body2016
JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgment and order dated 28.11.2013 passed by Shri Raj Singh Verma, Additional Sessions Judge, Jyotiba Phule Nagar (Amroha) in Sessions Trial No. 405 of 2001 (State v. Jaspal) arising out of Case Crime No. 213 of 2000, under Sections 363, 366, 376, 306 IPC, police station Amroha Nagar, district J.P. Nagar (Amroha), whereby the accused Jaspal was convicted under Section 366 IPC and sentenced to five years’ rigorous imprisonment and a fine of Rs. 2000/-. Further he was convicted under Section 376 IPC and sentenced to seven years’ rigorous imprisonment and a fine of Rs. 5000/-. He was also convicted under Section 306 IPC and sentenced to seven years’ rigorous imprisonment and a fine of Rs. 5000/- with default stipulation. However, the accused was acquitted under Section 363 IPC. 2. Filtering out the unnecessary details, the prosecution case is that the daughter of the informant was appearing as private candidate in the intermediate examinations. The nephew of the informant, namely, Ravindra Singh, was residing at Avas Vikas Colony, Amroha with whom the victim had stayed while she was appearing in her examinations. On 19.4.2000 when the victim was returning after appearing in the examination, the appellant Jaspal, who is also related to the informant met the victim on the way, he was having a jeep with him. He was accompanied by his sister-in-law Seema, who is also the wife of his younger brother. Both Jaspal and Seema enticed away the victim in the jeep whose number was UP 23, 3941. They took the victim to Akkha Nangla, where the victim was raped by Jaspal. After raping the victim, she was left at the house of Ravindra Singh at 8.00 p.m. The whole incident was narrated by the victim to Radha, wife of Ravindra. Radha told the victim not to disclose this fact to anybody otherwise she would be defamed. When the victim was being taken away by Jaspal and Seema, they were seen by Chhatar Singh and Meghraj, who stopped the jeep and asked them as to where they are going. At which, they stated that the victim was ill and they are going to drop her at house. On 20.4.2000, the wife of Ravindra, the nephew of the informant, left the victim at the house of the informant. At which, they stated that the victim was ill and they are going to drop her at house. On 20.4.2000, the wife of Ravindra, the nephew of the informant, left the victim at the house of the informant. Since that day the victim remained in the house of the informant. She was always lost and depressed. When her mother asked her the reason, she narrated the whole incident to her and the informant. The informant and his wife thought that the girl being spinster had to be married soon. Due to defamation in the society, they did not take recourse to any legal proceedings. On 1.5.2000, the victim came to Amroha to appear in her examination and consumed Sulphas tablets and committed suicide. She left a hand written note before committing suicide that action be taken against Jaspal and Seema. On the basis of this written note, chik report was scribed by PW-5 Vishram Singh. 3. Dr. Surendra Singh PW-8 conducted the post-mortem report on the body of the deceased. She was of average built. Rigor mortis passed of from the upper limbs and was present on the lower limbs. The lips and nails were cynosed. There was no mark of injury on the external part of the body. Her pubic hairs were shaved. The membranes of the brain, lungs, pleura and larynx were congested. The membrane of the intestines were congested. Liver, spleen, kidneys were congested. Hymen was torn, but there was no injury. Since the cause of death could not be ascertained, hence viscera was preserved. The post-mortem report was proved by this witness as Ext. Ka-13. 4. PW-9 C.O., Bhupendra Pal Singh has investigated the matter. The articles given in custody by Dr. Gyan Singh to the police were perused by this witness and recovery memo was prepared by HCP, Vishram Singh. Further the suicide note was copied in the case diary. The statements of the witnesses of inquest were copied in the case diary by this witness. The statement of owner of the hotel Samrat was recorded and on his pointing out the site plan was prepared and proved as Ext. Ka-14. On the same day, the statement of Seema was recorded. On 3.5.2000, the copy of post-mortem report was scribed in the case diary. The accused Jaspal was arrested and his statement recorded. The statement of owner of the hotel Samrat was recorded and on his pointing out the site plan was prepared and proved as Ext. Ka-14. On the same day, the statement of Seema was recorded. On 3.5.2000, the copy of post-mortem report was scribed in the case diary. The accused Jaspal was arrested and his statement recorded. On 19.5.2000, the statement of Radha, Sumitra Devi and Chhatar Singh and Meghraj Singh were recorded and charge-sheet was submitted against the accused, which was proved as Ext. Ka-15. On 10.7.2000, the admitted handwriting of the deceased was sent for comparison to the hand writing expert. A memo was prepared of the same, which was proved as Ext. Ka-16. 5. PW-10 Markandey Gupta, has received the docket in the forensic laboratory. He received three pages of the letter alleged to have been written by the deceased. The home science notebook of the deceased related to class-12 and practical note-book consisting of two pages were also received, which have been mentioned in the report, which was proved by this witness as Exts. Ka 17 and Ka 18. Further this witness proved the photographs as Ext. Ka-19 to Ka 64. The negatives were proved as material Ext. 3 to material Ext. 25. 6. The prosecution examined as many as ten witnesses in support of its case. PW-1 is Smt. Radha, who is said to be the witness to whom the victim/deceased narrated the incident soon after the incident. PW-2 is Mahipal Singh, the informant, who proved the written report as Ext. Ka-1. PW-3 is Chhatar Singh in whose presence the body of the deceased was said to have been sealed in the hotel. PW-4 Maharaj Singh is said to be the witness, who saw the accused taking away the deceased. PW-5 is S.I. Vishram Singh, who took the articles of the deceased into possession. He proved the challan of the dead body and other connected papers as Ext. Ka-2 to Ka-8. He also proved the inquest report as Ext. Ka-9 and the chik report and copy of G.D. as Ext. Ka-10 and Ka-11. He proved the letter written by the deceased as material Ext. 1 and the copies as material Ext. 2. He further proved the handkerchief, lipstick, ball pen, wrist watch, safety pin etc. as material Exts. 4 to 11. He also proved the inquest report as Ext. Ka-9 and the chik report and copy of G.D. as Ext. Ka-10 and Ka-11. He proved the letter written by the deceased as material Ext. 1 and the copies as material Ext. 2. He further proved the handkerchief, lipstick, ball pen, wrist watch, safety pin etc. as material Exts. 4 to 11. He also proved the clothes of the deceased, which were taken into possession as material Exts. 12 to 14. PW-6 is Sumitra Devi, the mother of the victim/deceased. PW-7 is Dr. Gyan Singh, who examined the victim, who was brought to the hospital in semi conscious condition, after consuming Sulphas tablets. He has proved the written documents as Ext. Ka-12. PW-8 is Dr. Surendra Singh. The evidence of PWs-8, 9 and 10 have been discussed earlier. 7. After closing of prosecution evidence, the statement of accused were recorded under Section 313 Cr.P.C., in which the complete occurrence was denied and they stated that they had been implicated due to enmity. The accused have examined DW-1 Bhagwan Singh, who proved the factum of enmity between the family of the deceased and the accused. 8. After hearing the learned counsel for the parties, the learned lower Court passed the sentence as stated in para 1 of the judgment. 9. Feeling aggrieved, the accused has come up in appeal. 10. Heard Shri P.C. Srivastava, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the trial Court record. 11. Learned counsel for the appellant has vehemently argued that the charges levelled against the appellant have not been proved beyond all reasonable doubt. There is inordinate delay in lodging the FIR. The conviction is based on inadmissible evidence and the appeal is liable to be allowed. 12. Per contra, learned Additional Government Advocate has submitted that in this case the reputation of the family was at stake and the father of the victim/deceased was hesitant in lodging the FIR as regards the factum of rape initially, but later on when the victim ended her life, he lodged the FIR. As per the prosecution version, the occurrence under Sections 366 and 376 IPC is said to have been taken place on 19.4.2000. So far as delay is concerned, the alleged offence of kidnapping and rape is said to have taken place on 19.4.2000. As per the prosecution version, the occurrence under Sections 366 and 376 IPC is said to have been taken place on 19.4.2000. So far as delay is concerned, the alleged offence of kidnapping and rape is said to have taken place on 19.4.2000. Since Radha has denied of anything having been told to her. The statement of Mahipal Singh, PW-2, father of the victim/deceased is relevant. In this respect, he has stated that Radha had told him that the victim was kidnapped and raped by the appellant. This would be a hearsay evidence and even otherwise inadmissible because Radha herself had denied about this fact. Further, the father of the deceased PW-2 Mahipal Singh has admitted that since 19.4.200 to 1.5.2000, the deceased visited her village once or twice. The deceased had told him that on 19.4.2000 the accused had raped her. The evidence of this witness before the Court six years after the occurrence would definitely not be admissible under Section 6 of the Evidence Act. Although this witness has stated that on 19.4.2000 he was told about the occurrence, but he has clarified that he did not do anything in the matter because the girl was not married and the reputation of the family was at stake. 13. PW-6 is Sumitra Devi, the mother of the deceased, who has stated that the deceased told her about the occurrence of rape, but no reason is coming forth from the side of the prosecution as to why the report of the matter was not lodged. Thus, this raises a doubt on the whole prosecution story. 14. As far as Section 366 IPC is concerned, it reads as follows: “366. Thus, this raises a doubt on the whole prosecution story. 14. As far as Section 366 IPC is concerned, it reads as follows: “366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.” 15. There is no evidence whatsoever about kidnapping, from the prosecution side. Although Radha at whose house, the victim had stayed came to know about the incident in the night. Her statement being admissible under Section 6 of the Evidence Act, but Radha PW-1 has stated that neither the deceased was staying with her nor she told her anything. Hence, there is practically no evidence as regards the factum of the matter. PW-3 Chhatar Singh, who is admittedly the relative of the informant, has stated that he did not see the deceased going with anybody and he does not know the appellant Jaspal. He did not see the victim sitting with the accused on Jeep No. UP 23, 3941. This witness was declared hostile, but there is nothing significant in his cross-examination by the prosecution. PW-4 Maharaj Singh has also stated that on 19.4.200 he did not see the victim and the appellant in jeep No. UP 23, 3941. He was also declared hostile and cross-examined by the prosecution, but his cross-examination too is not of much consequence and does not help the prosecution. Thus no charge under Section 366 has been proved. 16. PW-4 Maharaj Singh has also stated that on 19.4.200 he did not see the victim and the appellant in jeep No. UP 23, 3941. He was also declared hostile and cross-examined by the prosecution, but his cross-examination too is not of much consequence and does not help the prosecution. Thus no charge under Section 366 has been proved. 16. As far as the charges under Section 306 IPC are concerned, it is the case of the prosecution that after the deceased was raped, she was depressed and due to this reason she had committed suicide. 17. Before I proceed to analyse the evidence adduced in support of the charges by the prosecution against the appellant, as far as Section 306 IPC is concerned, it would be pertinent to note the concept of abetment of suicide. 18. Section 306 of the Code deals with “Abetment of Suicide”, which reads as follows: “306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 19. The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. ‘Sui’ means ‘self’ and ‘cide’ means ‘killing’, which implies an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. 20. Our Penal Code does not prescribe any punishment for suicide, because the offender is no more in the world, however attempt to suicide is an offence under Section 309 of I.P.C. ‘Abetment of a thing’ has been defined under Section 107 of the Code, which reads as under: “107. Abetment of a thing—A person abets the doing of a thing, who - First—Instigates any person to do that thing; or Secondly—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly—Intentionally aides, by any act or illegal omission, the doing of that thing. Explanation 2 which has been inserted alongwith Section 107 reads as under: Explanation 2—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.” 21. In the case of Ramesh Kumar v. State of Chhatisgarh, (2001) 9 SCC 618 , a three Judge bench of the Apex Court in para-20 of the report, after examining different shades of the word ‘instigation’, has observed as under: “20. Instigation is to goad, urge forward, provoke, incite or encourage to do ‘an act’;. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” 22. In State of West Bengal v. Orilal Jaiswal and another, (1994) 1 SCC 73 , the Hon’ble Supreme Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. 23. In Chitresh Kumar Chopra v. State (Government of NCT of Delhi), 2009 (16) SCC 605 , the Apex Court had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word ‘instigation’ and ‘goading’. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 24. In the case of M. Mohan v. State represented by Dy. Supdt. of Police, (2011) 3 SCC 626 , a constitution Bench of the Supreme Court consisting of 7-Hon’ble Judges after crystallizing the law relating to suicide and its abetment has observed that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Thus, we have to find out whether there was any positive act on the part of the accused-appellant to instigate or aid in committing suicide by the deceased and for this purpose the oral evidence led by the prosecution would be required to be analysed. 25. Since PW-1 Radha has not supported anything stated by the prosecution, the evidence of PW-2 Mahipal Singh has to be looked into, who has only stated that after the incident of rape, the deceased was disturbed. As per prosecution case, the deceased was living at the house of PW-1 Radha and appearing for her examinations, hence PW-1 would have been the best witness to give the evidence. However, PW-2 father of the victim has stated that the deceased could not tolerate that she was raped by the appellant due to which she committed suicide on 1.5.2000. The mother is only a person in the family, who is considered to be the best friend of her young daughter. The mother has stated that she did not see how the deceased died, but she has heard that the deceased consumed poison. She has further stated that when the deceased left her village, she was lost in herself. She did not narrate the fact herself but when she was asked, she revealed the factum of rape to her mother. The mother has stated that she did not see how the deceased died, but she has heard that the deceased consumed poison. She has further stated that when the deceased left her village, she was lost in herself. She did not narrate the fact herself but when she was asked, she revealed the factum of rape to her mother. The father of the victim was also hearing all these things, due to which both the couple decided not to tell this fact to anybody, because there would be hurdle in marrying the deceased. The mother consoled the daughter and after being consoled, the deceased appeared normal, but internally she was broken and could not tolerate this shock. 26. I would like to refer the way, in which the incident took a shape in this case. As per prosecution case, on 19.4.2000, the victim had gone to appear for her examinations while returning she was picked up and raped by the appellant and left back at the house of PW-1 Radha, where she was staying. In the meantime, the deceased came to her village, went back to the house of Radha and stayed there till 1.5.2000. She further appeared for different papers and ultimately committed suicide on 1.5.2000. She is said to have left a suicide note when she committed suicide by consuming Sulphas tablets. Strange enough the original suicide note is not on record of the lower Court. When the statement of PW-5 Vishram Singh was being recorded by the Court below on 30.5.2007, the trial Court made an observation that since the original suicide note was not produced before the Court, hence the statement was deferred. On the next date i.e. 31.1.2009 a sealed bundle alleged to be containing the suicide note was produced before the Court, which was proved by PW-5 Vishram Singh as Exts. 1, 2 and 3. How this original suicide note was dealt with becomes a mystery (Paheli) because when the statement of PW-10 Markandey Gupta, Handwriting Expert was being recorded, the original suicide note could not be traced out. 27. 1, 2 and 3. How this original suicide note was dealt with becomes a mystery (Paheli) because when the statement of PW-10 Markandey Gupta, Handwriting Expert was being recorded, the original suicide note could not be traced out. 27. As regards the non-availability of original records, the trial Court on 5.10.2012 passed the following order: ^^15-10-2012 iqdkj dh xbZ A vfHk;qDr mifLFkr A lk+{kh ekjds.Ms xqIrk ih0MCyw&10 Hkh U;k;ky; esa mifLFkr gSa] ijUrq vfHk;kstu i{k dh vksj ls e`rdk ds gLrys[k esa fy[kk lkslkbM uksV rFkk mlds gLrys[k esa fy[ks nks dkfi;kWa vfHk;kstu i{k dh vksj ls izLrqr ugha dh xbZ bl dkj.k gLrys[k fo'ks"kK ekjds.Ms xqIrk ih0MCyw&10 dk lk{; fy;k tkuk lEHko ugha gSA vfHk;kstu i{k dh vksj ls eky eqdnek ftl ij oLrq izn'kZ&1 rk 3 U;k;ky; }kjk Mkyk x;k Fkk] og eky fnukad 31-1-2009 dks U;k;ky; esa izLrqr fd;k x;k FkkA mlds mijkUr eky xk;c gks x;k rFkk Fkkus ,oa lnj eky[kkuk us ;g vk[;k nh gS fd eky miyC/k ugha gSA vfHk;kstu i{k dh vksj ls ,d izkFkZuk i= bl vk'k; dk Hkh fn;k x;k gS fd ,slh ifjfLFkfr;ksa esa izkjfEHkd lk{; miyC/k ugha gS mlds Lfkku ij f}rh;d lk{; tks e`rdk ds e`R;q iwoZ fy[kk x;k lkslkbM uksV dh Nk;k izfr gS mls eku fy;k tk; rFkk ewy nLrkost [kksus ds laca/k esa tkWp dh dk;Zokgh dh tk;A eky eqdnek iqfyl }kjk U;k;ky; ds le{k fnukWd 31-1-2009 dks izLrqr fd;k x;k Fkk ml le; e`rdk dk lkslkbM uksV o mlds gLrys[k esa fy[kh nks dkfi;kaW miyC/k Fkh ftu ij dze'k% oLrq izn'kZ 1] 2 o 3 Mkys x, Fks eky U;k;ky; esa lk{; gksus ds mijkUr Fkkus ds eky[kkus dks laHkor% ykSVk fn;k Fkk rFkk eky eqdnek vc miyC/k ugha gks ik jgk gSA bl lEcU/k esa iqfyl v/kh{kd] ftykk vejksgk dks lwfpr fd;k tk; fd og vius Lrj ls tkaWp djkdj vfxze dk;Zokgh djsa rFkk eky eqdnek U;k;ky; esa izLrqr djokuk lqfuf'pr djsaA i=koyh fnukad 30-10-2012 dks okLrs vfxze dk;Zokgh is'k gksA** 28. Thus, it is clear that due to laches on the part of the police, the original suicide note disappeared and it appears that everything was lost sight of how the victim or her family was to be blamed, is a question which remained unanswered. Thus, it is clear that due to laches on the part of the police, the original suicide note disappeared and it appears that everything was lost sight of how the victim or her family was to be blamed, is a question which remained unanswered. As far as the suicide note is concerned, again there is doubt about its authenticity inasmuch as, as per prosecution version on 1.5.2000, the deceased went to appear in her examinations, but she did not return. She was found in the hospital being attended by Dr. Gyan Singh, PW-7, who stated that at 7.55 p.m. on 1.5.2000 the victim was brought to him in semi-conscious condition by the police of Kotwali, Amroha. She had consumed Sulphas tablets. There was Sulphas tablets in a bottle in her purse and a suicide note was also received. The Inspector police station Amroha was informed. How the deceased reached the hotel is not clear. Why she went to the hotel is not clear. How the police reached the hotel is not clear. The whole picture and story is very dim, inasmuch as the Dr. Gyan Singh, PW-7 has stated that the name and parentage of the girl was told to him by the police. He handed over the suicide note to the police. Although PW-5 Vishram Singh has proved that suicide note as material Exts. 1, 2 and 3, but he admitted that the sealed bundle did not bear the signatures/thumb impression of any witness. He has further stated that ^^i= ftl gkyr es feyk ogh i= rhu iUuksa dk bUlisDVj lkgc dks tks rQrh'k dj jgs mudks ns fn;k FkkA i= dks lhy ugha fd;k FkkA** He has further stated that during investigation, this suicide note was sealed or not could only be told by the Investigating Officer. Let us see what has to be done in the matter by the Investigating Officer. The Investigating Officer PW-9 C.O., Bhupendra Pal Singh has stated that suicide note was not sealed, but the reason for not sealing it on the spot can only be told by PW-5 Vishram Singh. After perusal of the case diary, this witness has stated that it is not mentioned in the case diary as to when suicide note was sealed. The Investigating Officer PW-9 C.O., Bhupendra Pal Singh has stated that suicide note was not sealed, but the reason for not sealing it on the spot can only be told by PW-5 Vishram Singh. After perusal of the case diary, this witness has stated that it is not mentioned in the case diary as to when suicide note was sealed. Thus, Vishram Singh, PW-5 states that the Investigating Officer Bhupendra Pal Singh, PW-9 would tell how the unsealed suicide note was dealt with, whereas C.O., Bhupendra Pal Singh PW-9 has stated that PW-5 Vishram Singh would revealed the facts. Thus, both the police personnel get on shifting the responsibility on each other to the detrimental of the prosecution case. PW-10 Markandey Gupta has stated that suicide note was received by him in sealed cover, but who sealed it, when it was sealed and how it was sealed is not forthcoming in the prosecution evidence. How this suicide note came to the doctor is also missing, whether the police brought it or the hotel person brought it, whether it was found on the body of the deceased or in the purse of the deceased or in the hotel room are questions that remained unanswered. 29. Another aspect of the matter is that Dr. Gyan Singh, PW-7 has stated that a purse was also brought with the deceased, in which there was a bottle containing some tablets of Sulphas. PW-5 Vishram Singh has stated that the other sealed bundle was a hand purse, in which there was one handkerchief, one lipstick, one hair pin, one wrist watch, one ball pen, safety pin, two currency notes of Rs. 10/- each, which were proved by the witness as material Exts. 4 to 11. Further the clothes of the deceased was also proved by this witness. When this witness was confronted with the recovery memo prepared as relating to the purse of the deceased, which is Ext. Ka-2, it mentioned that the purse was containing a suicide note, whereas according to Dr. Gyan Singh, PW-7, the suicide note was handed over separately to him. As per recovery memo Ext. 2, the purse contained Rs. 51.50/-, but as per version of PW-5 Vishram Singh the purse contained only Rs. 20/- The inquest report Ext. Ka-9 also mentions that Rs. 51.50/- was found in the purse of the deceased, but where is the remaining Rs. As per recovery memo Ext. 2, the purse contained Rs. 51.50/-, but as per version of PW-5 Vishram Singh the purse contained only Rs. 20/- The inquest report Ext. Ka-9 also mentions that Rs. 51.50/- was found in the purse of the deceased, but where is the remaining Rs. 31.50/- is not clear. Besides who took out the suicide note from the purse is a million dollar question that remained unanswered. PW-5 Vishram Singh has admitted that colour of hand purse produced before the Court was brown and the purse produced before him in Court was not at all black and the ear-rings mentioned in the recovery memo and the inquest report also were not present when the bundle of recovered articles was opened before the Court. A lipstick was found in the purse before the Court, but it was not mentioned in either recovery memo or the inquest report. The witness admitted that the bottle contained ten tablets of aluminium phosphide was also missing from the bundle. Where all these things disappeared, which were important links in the evidence has not been explained by the prosecution. This witness has also admitted that first page of the recovery memo does not bear the signatures of anybody and does not indicate at what place the recovery memo was prepared, but it was prepared at the Government Hospital. If the articles were sealed in the presence of Dr. Gyan Singh PW-7 and Vishram Singh, PW-5, there is no reason why the sealed bottle did not bear their signatures or seal. Besides, the admitted hand writing of the deceased was collected from the house of the victim as per evidence of PW-9, C.O., Bhupendra Pal Singh, who has stated that he obtained the copies of the victim/deceased for comparison or specimen writing on 10.7.2000. Why the copies for comparison of the hand writing were taken more than two months after the incident has not been explained by PW-9 C.O., Bhupendra Pal Singh. Although the death of the deceased is not clear, but as per the post-mortem report, since the cause of death of the deceased could not be ascertained, hence her viscera was preserved. The viscera report is not on record. 30. I have examined the statement of the accused-appellant recorded under Section 313 Cr.P.C. and even in the statement, no question was put to the appellant regarding viscera report. The viscera report is not on record. 30. I have examined the statement of the accused-appellant recorded under Section 313 Cr.P.C. and even in the statement, no question was put to the appellant regarding viscera report. Further I went through the complete case diary, which revealed that on 29.9.2000 the viscera report was received from the Forensic Laboratory, Agra stating that the viscera had contained Aluminium Phosphite poison, but in parcha No. 6 it appears that the trial Court just slept over the matter and did not bother to find out as to what happened to the viscera report and when the viscera report was preserved and what happened to the report. Thus, on the basis of the material available on record, the cause of death of the deceased still stands unascertained. 31. This is how the police and trial Court alongwith public prosecutor has dealt with the case, where the young lady has given up her life and some persons are in jail for this offence. It is the bounded duty of the trial Judge to ensure that all the materials necessary for just disposal of the case are put before him. He has ample and unfettered powers under Section 311 Cr.P.C. 32. 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. 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. 33. 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. 34. 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. 35. I am aware of the fact that there is huge pendency in the district Courts but that 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. 36. Thus, the factum of abetment of suicide does not at all stand proved. Resultantly, the charges under Section 306 IPC are not proved beyond any reasonable doubt. I fail to understand, why the conscious of a judge was not shaken while deciding the case in this manner. 36. Thus, the factum of abetment of suicide does not at all stand proved. Resultantly, the charges under Section 306 IPC are not proved beyond any reasonable doubt. I am hesitant to hold that the deceased committed suicide because she was raped due to the fact that it has come in evidence that the deceased after being raped on 19.4.2000 waited to appear in her remaining papers before she committed suicide. If a person intends to commit suicide, there would be no reason for the person to wait and appear in the remaining papers and then to commit suicide because even if she clears her examinations, it would be of no consequence if she ends her life. 37. Coming to the allegation of rape, admittedly, there is no direct evidence regarding rape. Since the victim herself is said to have committed suicide about 11 days after the incident. I have no hesitation in saying that suicide note of the victim can be treated to be her previous statement as given under Section 32 of the Indian Evidence Act. 38. Section 32 of the Indian Evidence Act reads as follows: “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:— (1) When it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) Or is made in course of business.—When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) Or against interest of maker.—When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) Or gives opinion as to public right or custom, or matters of general interest.—When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) Or relates to existence of relationship.—When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons as to whose relationship 25 [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (5) Or relates to existence of relationship.—When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons as to whose relationship 25 [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6) Or is made in will or deed relating to family affairs.—When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised. (7) Or in document relating to transaction mentioned in Section 13, clause (a).—When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, clause (a). (8) Or is made by several persons, and expresses feelings relevant to matter in question.—When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.” 39. In Sri Bhagwan v. State of U.P., 2013 (12) SCC 137 , the Hon’ble Apex Court has held that: “Going by Section 32(1) of the Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement falling under Section 32(1) of the Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.” 40. Having regard to the extraordinary credence attached to such statement falling under Section 32(1) of the Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.” 40. Since the dying declaration produced in this case is said to have been written by the deceased herself, there is no doubt that conviction can be based on a dying declaration of the deceased as has been laid down by Hon’ble Apex Court in Gopal v. State of Karnataka, 2011(1) SCCr R 956, but as I have said earlier how this suicide note which can deemed to be a dying declaration was dealt with is not clear and is not on record. Thus, in the absence of any credible evidence, I am hesitant to hold that the deceased was subjected to rape due to which she committed suicide. Thus, the prosecution has miserably failed to prove the charges under Section 376 IPC. 41. The accused has denied the occurrence in his statement under Section 313 Cr.P.C. and has produced DW-1 Bhagwan Singh in his defence, who has stated that the victim died eleven years back and has stated that 10 years prior to the death of the deceased there was enmity between the family of Mahipal Singh and Ram Kunwar and Jaspal being son-in-law of Ram Kunwar was implicated in this case. The evidence of this witness is of no consequence. In cross-examination this witness has admitted that the deceased died but how she died does not known to this witness. 42. Before parting I would like to state that the criminal investigation plays an important and special role in the administration of criminal justice. The investigating officer plays a pivotal role in the dispensation of criminal justice and the maintenance of law and order. Police investigation is therefore the foundation stone on which the entire edifice of the criminal law rests. It is by the action of the investigating officer that the criminal law becomes an actual positive force. Proper and fair investigation is necessary for obtaining a complete picture of all the relevant issues because it will provide the information necessary to conduct a comprehensive investigation. Any omission and commission by the investigating officer may result in miscarriage of justice and prosecution results in acquittal. Proper and fair investigation is necessary for obtaining a complete picture of all the relevant issues because it will provide the information necessary to conduct a comprehensive investigation. Any omission and commission by the investigating officer may result in miscarriage of justice and prosecution results in acquittal. Being the foundation stone of the prosecution, the investigating officer must be trained to adopt proper techniques of investigation and scientific temper must be inculcated in them. The investigation must be conducted in an unbiased manner and investigation must be with objectivity and dispassionate approach to men and matters and the investigating officer must make a truthful presentation of the materials collected. As noticed earlier, investigation of the case at hand lacks credibility. Since occurrence was of the year 2000, I am not inclined to go into the details of the lapses in the investigation and issue any further direction but it is strange as to how the Investigating Officer did not bother to try to find out as per the prosecution version where the victim was raped why the alleged vehicle whose number came into investigation was not seized and got examined. 43. Thus, what has been stated and discussed above, I conclude that the prosecution case is bundle of false allegations and improbable facts, due to which the learned trial Court mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed. 44. Hence, the impugned judgement and order of conviction and sentence dated 28.11.2013 passed in Sessions Trial No. 405 of 2001 (State v. Jaspal) arising out of Case Crime No. 213 of 2000, under Sections 366, 376, 306 IPC, police station Amroha Nagar, district J.P. Nagar (Amroha) is hereby set-aside. 45. Accordingly, the appeal is allowed. 46. The appellant-Jaspal is in jail. He shall be released forthwith unless wanted in any other case. The appellant is directed to comply with the provision of Section 437-A Cr.P.C. forthwith. 47. Let a copy of this order be sent to the Trial Court concerned.