Judgment : Hon'ble Mrs. Ranjana Pandya, J. 1. Challenge in this appeal is to the judgment and order dated 30.7.2010 passed by Additional Sessions Judge, Court No. 1, Saharanpur in S.T. No. 398 of 2009 (State Vs. Tauseef) arising out of Case Crime No. 128 of 2009, under Section 376 I.P.C., Police Station-Kotwali Dehat, Saharanpur, District-Saharanpur whereby the trial court found the appellant guilty under Section 376 I.P.C. and sentenced him to 10 years rigorous imprisonment and Rs. 25,000/- fine with default stipulation. 2. Filtering out unnecessary details the prosecution story as per the prosecution version is that the informant alongwith his family was residing in the Dera of Tauseef. On 15.3.2009 at 7:25 p.m., the informant went to the Doctor with his wife Asheeda. He had three children. The victim aged about 4 years was left at the house. When the couple returned from the Hospital at 9:00 p.m., they saw that the accused was lying on the victim and trying to rape her. The victim was lying on the cot and was shouting and raising alarm. On seeing this, the informant raised alarm, on that the accused-appellant fled away. The victim was bleeding, hence the report was lodged. 3. On the basis of this F.I.R., chik report was scribed by P.W. 4 Shashi Kumar, which was proved as Exhibit Ka-4. 4. On the basis of this, G.D. (Exhibit Ka-5) was scribed by this witness. The victim was examined by P.W. 3 Doli Kapoor, who found that secondary sexual characters were not developed. There was swelling in the hymen at 3 O'clock position. There was slight teas in the fourchette 1-2 c.m. There was slight oozing of blood. The victim was bleeding. Blood stain were present around the thighs in slight quantity. Two slides were prepared. The Doctor proved the medical report as Exhibit Ka-2 and the supplementary report as Exhibit Ka-3. 5. On 15.3.2009, investigation of the matter was entrusted to P.W. 5 S.I. R.S. Chauhan, who inspected the site and prepared the site plan which was proved as Exhibit Ka-6. On 18.3.2009, he recorded the statement of Rajkumar, Naresh and took in possession the panty of the victim, who narrated the incident in their own words. 6. On 31.3.2009, the supplementary report was copied in the C.D. The memo as regards sealing of panty was prepared and proved by this witness as Exhibit Ka-7. On 18.3.2009, he recorded the statement of Rajkumar, Naresh and took in possession the panty of the victim, who narrated the incident in their own words. 6. On 31.3.2009, the supplementary report was copied in the C.D. The memo as regards sealing of panty was prepared and proved by this witness as Exhibit Ka-7. The investigation ended into a charge-sheet, which was proved as Exhibit Ka-8. The panty was proved as material Exhibit 1. 7. The prosecution examined as many as six witnesses. P.W. 1 is Mustkeem-informant and father of the victim, who has proved the written report as Exhibit Ka-1. P.W. 2 is Asheeda, wife of the informant and mother of the victim. The statement of P.W. 3, P.W. 4 and P.W. 5 has been discussed by me. P.W. 6 is Dr. Surendra Singh, who conducted ossification test and proved the report as Exhibit Ka-9 and the X-ray plate as material Exhibit 3. 8. After closing of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which he claimed that he was innocent and falsely implicated to be pressurized. The accused-appellant submitted the certified copy of F.I.R. relating to Crime No. 463 of 2008, copy of charge-sheet in the aforesaid crime number, copy of F.I.R. relating to Crime No. 546 of 2009 against the informant, copy of charge-sheet in the aforesaid crime number, copy of F.I.R. in Crime No. 356 of 2009 against the informant and his brother, copy of F.I.R. in Crime No. 275 of 2008 against the informant and his brother and copy of F.I.R. in Crime No. 236 of 2010 and cutting of some newspapers. 9. After hearing the learned counsel for the parties, the lower court convicted the appellant as stated in para 1 of the judgment. 10. Feeling aggrieved, the accused-appellant has come in appeal. 11. I have heard the learned counsel for the parties and perused the record of the trial court. 12. Learned counsel for the appellant has submitted that the victim was not examined by the prosecution. There was established enmity between the family of the victim and the accused. The learned lower court failed to examine the defence evidence adduced by the appellant. Thus, the conviction is based on incorrect appreciation of evidence. 13. 12. Learned counsel for the appellant has submitted that the victim was not examined by the prosecution. There was established enmity between the family of the victim and the accused. The learned lower court failed to examine the defence evidence adduced by the appellant. Thus, the conviction is based on incorrect appreciation of evidence. 13. Per contra learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused. Hence, the appeal is liable to be dismissed. 14. As far as F.I.R. is concerned, it is prompt. Admittedly, the victim being a child of three and half years was not examined by the prosecution, but there were very reasonable and probable reasons for not examining the victim, inasmuch as the father of the victim Mustkeem P.W. 1 has stated that 7 to 8 days prior to his statement, the victim was kidnapped and murdered by Nadeem, the son of the accused, because they were pressurizing this witness to compromise in the rape case. 15. The question arises whether the parents can be regarded to be "independent" witnesses. I have no doubt on that score. It may be that a mother may not be sufficiently independent to fulfil the requirements of the corroboration rule, but there is no legal bar to exclude the parents from its operation, merely on the ground of their relationship. Independent merely means independent of sources which are likely to be tainted in the absence of enmity against the accused, there is no reason why the informant should falsely implicate the accused. 16. Coming to this aspect of the matter, a perusal of the impugned judgment makes its ample clear that the trial judge was a mere spectator in the matter. 17. Before proceeding further, I would like to examine the statement of the accused recorded under Section 313 Cr.P.C., in which he has stated that he would adduce the evidence. I am not unaware of the fact that there is a huge pendency in the District Court, but this does not at all mean that in sensitive cases in which the life liberty and the reputation of a litigant is involved. I am not unaware of the fact that there is a huge pendency in the District Court, but this does not at all mean that in sensitive cases in which the life liberty and the reputation of a litigant is involved. They should be dealt with by the Judges in such an indifferent manner. Why the Judge could not put himself for self introspection? 18. 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. 19. 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. 20. 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. 20. 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. 21. If, the State or the prosecutor fails in their duty note can be taken of the matter and proper action can be taken, if the accused fails to put a dent in the prosecution case, he is a sufferer, but what if an irresponsible Judge fails to discharge his duties and what would be the net result, if a person is detained unnecessary in jail, just due to negligence and carelessness of the trial judge. 22. In this particular case, the accused-appellant chose to file as many as nine documents on 8.7.2010 in defence. As per list 43 Kha-1. A mention of this fact also finds place in the order-sheet dated 8.7.2010, when the learned counsel for the appellant after filing documentary evidence in defence made an endorsement on the order-sheet, that he does not want to adduce any oral evidence in defence. The trial judge in this particular case dealt with the fate, life and liberty of the accused and agony of the aggrieved family in a very hasty way. 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. 24. 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. 24. The trial judge was required to ensure that the provision of General Rules (Criminal) Rule 27 should have been complied with which reproduced as below : "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 initiated 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. 25. 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). 25. 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. 26. 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. 27. What to say of not marking these to be documents as Exhibits, they have not at all even referred to in the judgment, reflecting the in-activeness on the part of the trial judge. Hence, I would like to refer to these to be documents before discussing the oral evidence adduced on behalf of the appellant. 28. As far as paper 44 Kha is concerned, it is certified copy of chik report relating to Crime No. 463 of 2008, in which the mother of the victim namely Asheeda was named. 29. Paper 45 Kha is the certified copy of charge-sheet relating to the aforesaid Crime No. 463 of 2008, under Section 294 I.P.C., Police Station-Kutubsher, District-Saharanpur, in which the mother of the victim namely Asheeda has also been arrayed as a co-accused. The mother of the victim was examined by the prosecution as P.W. 2, who has stated her name to Asheeda. She was put to the test of cross-examination, in which she has admitted that ladies also called her by the name of Rasheeda, correcting herself in next breath, she has stated that she is known by the name of Asheeda. But she has admitted that she was challaned with co-accused Poonam and Raj Kumar. This occurrence is said to be much prior to the incident before this court. She has pleaded ignorance whether two men were also charge-sheeted who used to supply ladies. 30. Paper 46 Kha is the copy of F.IR., which was lodged by P.W. 2 mother of the victim against Nadeem, son of the accused-appellant under Sections 323, 304 and 386 I.P.C., which is not disputed by the informant Mustkeem and his wife. 31. She has pleaded ignorance whether two men were also charge-sheeted who used to supply ladies. 30. Paper 46 Kha is the copy of F.IR., which was lodged by P.W. 2 mother of the victim against Nadeem, son of the accused-appellant under Sections 323, 304 and 386 I.P.C., which is not disputed by the informant Mustkeem and his wife. 31. Paper 47-Kha is the charge-sheet submitted as a result of investigation in Case Crime No. 546 of 2009, in which F.I.R. was lodged against Nadeem, son of the accused-appellant. A glaring factor is that the informant himself was arrayed as the sole accused in the charge-sheet for murder of his own daughter, who was the victim in the present case and his wife P.W. 2 was arrayed as informant in the charge-sheet. 32. Paper 48kha is another F.I.R. lodged by one Suresho on 1.7.2009 against the informant P.W. 1 Mustkeem. It can be kept into the mind that this F.I.R. was lodged after the incident. However, the wife of the informant P.W. 2 has admitted that she knew Suresho, who had lodged the case against her husband informant P.W. 1 and his brother for an offence under Section 354 I.P.C., although she has tried to justify that the report was false. 33. Another document, which was ignored by the trial court is 49Kha, which is the copy of F.I.R., which relates to an incident, which is said to have taken place on 7.6.2007. This was registered as Crime No. 275 of 2008 i.e. much prior before the occurrence. 34. Paper 50 Kha is the copy of another F.I.R. bearing Crime No. 236 of 2010, but it is subsequent to the date of the incident, the mother of the victim was left with no other option. Hence, she had to admit that 7 to 8 months after the incident of rape. The victim was murdered for which a report was lodged against Nadeem, son of the appellant in which the police was investigating, but her husband was charge-sheeted for murdering his own daughter (the victim of the present case) and he was sent to jail. These documents prove how the father of the victim himself was charge-sheeted for killing his three and a half year old innocent daughter and falsely implicated the son of the accused-appellant. 35. In the aforesaid case, the evidence adduced by the prosecution has to be examined. These documents prove how the father of the victim himself was charge-sheeted for killing his three and a half year old innocent daughter and falsely implicated the son of the accused-appellant. 35. In the aforesaid case, the evidence adduced by the prosecution has to be examined. P.W. 3 is Dr. Doli Kapoor, who has proved that the victim had sustained injuries. Thus, although the injuries on the person of the three and a half year old child were proved, but in the aforesaid case the court would like to seek for corroboration. 36. P.W. 1 is Mustkeem, informant and father of the victim, who has admitted that he was a servant working for the accused Tauseef and he used to live alongwith his family members at the "Dera" belonging to the accused. As per the F.I.R., there are allegations that when the informant returned home from the Hospital with his wife, he saw that the accused was "attempting" to rape his daughter. In the oral evidence, both the husband and wife being P.W. 1 and P.W. 2 have stated that they saw the accused trying to rape the victim. P.W. 1 has stated that when he reached the "Dera" the accused saw him and got up from above the victim and fled away. 37. This witness has admitted that initially, he lived at village Deoli, where he owned a house. He sold that house, which was disputed, for which litigation is still pending. This house was sold for Rs. 2.50 lakhs, but he did not purchase any immovable property in lieu. He has further admitted that he was living in the "Dera" of the accused for the last one and a half year as servant and he had nothing to do with the title of this house. He has also admitted that during the period of one and a half year, for the last six months, he was having dispute with the accused because the accused had not paid him his wages. Even P.W. 2 has admitted that the accused did not make the payments to her husband, who had served the accused for many months. The informant has admitted that there was a dispute between the accused and the informant for the payment of six months wages. Thus, enmity has been proved. 38. Even P.W. 2 has admitted that the accused did not make the payments to her husband, who had served the accused for many months. The informant has admitted that there was a dispute between the accused and the informant for the payment of six months wages. Thus, enmity has been proved. 38. As far as the victim and the informant is concerned, generally parents would be very hesitant in lodging a false complaint as regards their minor daughter for rape is concerned. But this is a peculiar case shaking the conscious of human beings inasmuch as in this case a three and a half year old child was initially said to have been raped and then her own father was accused for having murdered her. As far as P.W. 1 Mustkeem has stated that when he had seen the accused lying on his daughter, he and his wife were on the R.C.C. road and the accused fled in the opposite direction. P.W. 2 is the wife of the informant has also stated that there was a electric pole at the place of occurrence, when she heard shrieks of her daughter, she was on the Kharanja and the accused fled in the opposite direction. 39. A perusal of the site plan Exhibit Ka-6 shows that the accused fled away from the R.C.C. road and there could be no possibility of any person viewing the cot, which was lying towards the Western side of the room from the road, because there is only one exit of the room facing towards the North. 40. The informant P.W. 1 has admitted that he was charge-sheeted for having committed murder of his daughter. Trying to give himself a clean chit, this witness has stated that this was done because the palms of the police were greased by those people, but he did not make any complaint. Although Nadeem had paid money to the police and he had been picked up by the police, but the informant did not file any complaint even through the Jailer. Mustkeem P.W. 1 has admitted that from the palm the right hand of the accused was amputated. 41. P.W. 1 the informant has stated that the "Dera" is in the field of Tauseef. Mustkeem P.W. 1 has admitted that from the palm the right hand of the accused was amputated. 41. P.W. 1 the informant has stated that the "Dera" is in the field of Tauseef. Asheeda, the mother of the victim and wife of the informant has stated that when they returned to the "Dera" at 9:00 p.m., the accused was lying on top of the victim and was trying to rape her, who fled away on seeing this witness. 42. In cross-examination, this witness has stated that they were not vacating the house of the accused, because the accused had not paid six months wages, and if the accused pays six months' wages, the witnesses would vacate his house. P.W. 2 has admitted that the Kharanja was 250-300 yards away from the place of incident. She has admitted that on the path way, there are houses of Hukum, Fateh, Nathi, Kashmira and Ramesh Harijan. Thus, as per the version of P.W. 2 mother of the victim, who was accompanying P.W. 1 Mustkeem father of the victim, has stated that the accused was lying on the victim and was attempting to rape her, whereas P.W. 1 Mustkeem, who is also to be the eye-witness, has stated that he saw the accused lying on his daughter. 43. As far as the statement of the Investigating Officer, P.W. 5 R.S. Chaudhary is concerned, he has stated that he prepared the site plan at the pointing out of the informant and his wife. As per the site plan, the electric pole has been shown quite far away from the room. 44. The I.O. P.W. 5 has further submitted before the court that although the occurrence is said to have taken place on 15.3.2009, but till 28.3.2009, the blood stained panty of the victim was not handed over to the I.O. The parents of the victim tried to show their intelligence by saying to the I.O. that they had given the blood stained clothes of the victim to some of the relative to keep the clothes in safe custody, but till 28.3.2009, the clothes were not given into the custody of I.O.. 45. No doubt, the report of the Forensic Lab on record, shows that sperms and blood was found on the panty of the victim. 45. No doubt, the report of the Forensic Lab on record, shows that sperms and blood was found on the panty of the victim. But I am reluctant to place any reliance on the Forensic Report because firstly the clothes were handed over by the parents to the I.O after an inordinate delay and secondly the oral evidence is not reliable and trustworthy. 46. Thus, this is a peculiar case, in which the parents due to their own enmity and whims have created everything out of nothing. 47. Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused-appellant is guilty for the offence charged. Thus, the accused-appellant is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgment of conviction and sentence dated 30.7.2010 passed by Additional Sessions Judge, Court No. 1, Saharanpur in S.T. No. 398 of 2009 (State Vs. Tauseef) arising out of Case Crime No. 128 of 2009, under Section 376 I.P.C., Police Station-Kotwali Dehat, Saharanpur, District-Saharanpur, is hereby set aside. 48. Accordingly, the appeal is allowed. 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. 49. Let a copy of this order be sent to the trial court concerned. ——————