Jasbir Singh v. State

15. PW-4 was also cross-examined by the defence. The relevant depositions of cross-examination are as follows: - “It is correct that I and my wife are in Govt. Service and were in Government service at the time of incident. I left the house for duty at about 6/6.30AM on 25.09.98. My wife had also left the house in the morning for duty. I had three children and all were school going. On 25.09.98 all the three children were in the house as it was holiday on account of Navratra. The school were closed on 25.09.98 due to some reason. But I do not remember why the school were closed. I came back from my duty at about 4.30PM on 25.09.98. My wife had returned to the house from duty at about 2/2.30PM on that day. My daughter Kavita had told me that she would go to purchase vegetables when I left for my duty. The distance between vegetable market and parsad nursing home is hardly 10 paces. It is correct that there are houses between my house and vegetable market. The public person use to come and go on the said road. It is correct that there are several shops in the vegetable market. My wife told to me that my daughter Kavita had gone to purchase vegetable at about 10AM. Statement of my wife was not recorded by police in my presence. I do not remember exactly who told me the colour of clothes worn by my daughter. My wife might have informed me about colour of clothes of my daughter. The distance between my house and the school in which my daughter Kavita was studying is of 10/15 minutes walking distance. It is correct that the way for going to school is main road and several houses are constructed between my house and the school.”

16. At this juncture, it is also argued by learned counsel for the appellant that the FIR was lodged by the complainant/father of the prosecutrix informing that on 25th September, 1998, his daughter has gone to purchase fruits and vegetables but she had not return. He searched in his relations but could not come to know about her whereabouts. This information was given to the police on 28th 1998 i.e. after two days and one night. There was no explanation of the delay in lodging of the FIR of missing of his own daughter. Therefore, the said conduct of the complainant creates serious doubt in the story of the prosecution.

17. In the matter in hand, there is nothing on record which shows the date of alleged recovery of the prosecutrix by the Police from the residential house of co-accused Keshav from village Behat, District Gwalior. As per the testimony of PW-6 Constable Praveen, she was recovered on 26th November, 1998 from the house of accused Keshav. It is also stated that on that day he along with Head Constable Sant Ram (PW-7) had gone to Gwalior, Police Station Behat. It is further stated that they came back to Police Station of Behat and from there they went to Delhi along with prosecutrix. After that she was handed over to the parents after reaching to Delhi. The other witness PW-7 Head Const. Sant Ram, deposed in his examination-in-chief that on 26th January, 1998 he was posted at Police Station Najafgarh and on that day he had gone to Gwalior along with Ct. Praveen Kumar (PW-6) and parents of the prosecutrix. But during cross-examination, witness has stated as “statement of prosecutrix Kavita was also recorded at Village Behat, Gwalior at about 2:30 pm on 26.11.98”. The father of prosecutrix (PW-

4) accompanied with PW-7 and PW-6 at the time of the recovery of the prosecutrix from the house of the co-accused. PW-4, the father of the prosecutrix has stated that he does not know the date when she was recovered and also stated that he also doesn’t know from where she was recovered. In view of the aforesaid contradictions in the testimonies of PW-4, PW-6 and PW-7 about the date and place of recovery of the victim/prosecutrix, it certainly creates doubt about the truthfulness of the story of the prosecution. The prosecutrix herself has been silent about the date of recovery. The mother of the prosecutrix, who can be relevant witness, has not been examined by the prosecution. As per the prosecution story, the informant Moti Ram, PW-4 was informed by his wife in the evening of 25th September, 1998 that his daughter had gone to purchase fruits and vegetables, thereafter she did not return back. Therefore, the wife of the informant Moti Ram PW-4 is relevant and material witness to prove as to where the prosecutrix had gone to purchase the vegetables or she had left the house for school, or some other pretext.

18. As per the first statement of the prosecutrix recorded by Head Constable, the prosecutrix had gone to the school on 25th

1998. From school, she accompanied her friend Sharda to her house and from her house, Sharda, herself alongwith accused Jasbir went to the rented room of the co-accused Keshav. Due to the aforesaid facts, Sharda was a material witness to prove the story of the prosecution as whether the prosecutrix had gone to the school or she did not go to the school on that day and left the house for purchasing fruits and vegetables, or she was voluntarily with the accused Jasbir to the rented room of co-accused Keshav, and thereafter, she accompanied him to his village.

19. Dr. Rachna Yadav, who examined the prosecutrix on 27th November, 1998 has also not been examined. Dr. Preeti Singh, PW-12 was examined to prove the MLC which was conducted by Dr. Rachna Yadav. It is vehemently argued by the defence that the MLC which was conducted by one doctor cannot be proved by another doctor and the statement of another doctor who has admittedly not conducted the MLC is inadmissible under the law.

20. In the present case, as per the prosecution, the role assigned to appellant Jasbir Singh, was that he went to the house of the prosecutrix and told her that her friend Sharda was calling her at bus stand. At the statement of the present appellant, she accompanied him and went to the bus stand, but, she did not find Sharda there. But the present appellant Jasbir in his statement under Section 313 of Cr.P.C. has categorically stated that he did know Sharda, the prosecutrix or the father of the prosecutrix and he has denied entire prosecution story that he was involved in the instant crime.

21. After perusal of the oral testimonies of the prosecutrix (PW-3), her father-PW-4/the first informant and PW-6 Constable Praveen, PW-7 Head Constable Sant Ram, it was found that there are several material contradictions about the facts of kidnapping and recovery of the prosecutrix and it creates serious doubts in the prosecution story.

22. As far as the age of the prosecutrix is concerned, no document has been placed by the prosecution to prove the age of the prosecutrix. The learned Trial Court gave observation that according to the ossification test, she was more than 16 years but less than 18 years. But even, if it is to be taken that she was 18 years on the day of commission of offence, it is well settled principle of law that if two views are possible then the one favouring the accused be followed. Therefore, the age of the prosecutrix at the time of incident was not below 18 years.

23. After taking into consideration of the arguments, the learned counsel for the appellant has argued mainly on four points. 1) there is delay in lodging the FIR without any explanation, 2) the material contradictions in the testimony of the witnesses, 3) the material witnesses have not been examined by the prosecution and 4) Age of the prosecutrix was not less than 18 years. Delay in lodging in FIR without any explanation

24. In the instant case, the FIR was lodged by the complainant after an inordinate and unexplained delay of three days at Police Station, which renders the FIR in this case wholly unreliable. The delay in lodging the FIR corrodes the credibility of the prosecution story. The Hon’ble Supreme Court in several cases held that delay in loading the FIR creates a doubt, if the said delay is not properly explained.

25. In Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393, the Supreme Court, emphasising the necessity of explaining the delay in lodging FIR, has held as follows: “12... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained....”

26. In Meharaj Singh &Ors. v. State of U. P. &Ors, (1994) 5 SCC 188 the Supreme Court has observed: “12. … The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR...”

27. In Satpal Singh v. State of Haryana, (2010) 8 SCC 714 the Supreme Court has observed: “15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [Vide: State of Andhra Pradesh v. M. Madhusudhan Rao

28. The Hon’ble Supreme Court in Kishan Singh Vs. Gurpal Singh, (2010) 8 SCC 775 with regard to the effect of delay in lodging FIR has held as under: “22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide:Chandrapal Singh &Ors. Vs. Maharaj Singh &Anr., AIR 1982 SC 1238; State of Haryana &Ors. Vs. Ch. Bhajan Lal &Ors., AIR 1992 SC 604; G. Sagar Suri &Anr. Vs. State of U.P. &Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. &Ors., (2008) 12 SCC 531).

29. In Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC 379, Hon’ble Supreme Court has held that extraordinary delay in lodging of FIR raises grave doubt regarding the truthfulness of allegations. The Hon’ble Court held as under: “12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.”

30. Relying upon the judgment of Jai Prakash Singh (supra), in Manoj Kumar Sharma and others Vs. State of Chhattisgarh and another, (2016) 9 SCC 1, Hon’ble Supreme Court has held that delay in lodging FIR often results in embellishment, which is a creature of an afterthought and on account of delay, FIR not only gets bereft of advantage of spontaneity, danger of coloured version or exaggerated story being introduced in FIR, creeps in. It further held that extraordinary delay in lodging FIR raises grave doubt about the truthfulness of allegations made therein. The material contradictions in the testimony of witness.

31. The Hon’ble Supreme Court in the landmark case of Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 has held that:

30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh

***

34. In State of Rajasthan v. Kalki (1981) 2 SCC 752, while dealing with this issue, this Court observed as under: "8.... In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."

35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (Syed Ibrahim v. State of A.P. (2006) 10 5CC 601 and Arumugam v. State (2008) 15 SCC 590)

36. In Bihari Nath Goswami v. Shiv Kumar Singh (2004) 9SCC 186 this Court examined the issue and held: "9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the evidence is put in a crucible for being tested on the touchstone of credibility.”

37. While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.

32. In the case of Krishnegowda and others vs. State of Karnataka (2017) 13 SCC 98: AIR 2017 SC 1657, the Hon’ble Supreme Court observed that:

32. … The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

33. ….. As said by Bentham, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused.

33. In the instant case after perusing the testimony of the PW-3, PW-4, PW-6 and PW-7, this Court finds that there are material contradictions which create a serious doubt on the story of the prosecution and therefore such type of testimony of the witness is liable to be discredited. Non-examination of the material witness:

34. In the case of Manjit Singh Anr. Versus State of Punjab (2013 12 SCC 746)

22. In Takhaji Hiraji v. Thakore Kubersing Chamansing the Court has opined that: "19. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, nonexamination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself-whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court? If the answer be positive then only a question of drawing an adverse inference may arise, If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.” Proof beyond reasonable doubt

35. Beyond a reasonable doubt is the higher standard of proof that must be met in any trial. Reasonable doubt is a standard of proof used in the criminal trials. When an accused is prosecuted, the prosecution must prove the his guilt beyond reasonable doubt. If the judge has a reasonable doubt as to the defendant’s guilt, the judge should pronounce those defendants in guilt. If the judge has no doubt as to the defendant’s guilt, then the prosecution has prove its case against the defendant beyond a reasonble doubt and the defendant should be pronounced guilty.

36. In the case of State Govt. of M.P. v. Ramkrishna, AIR 1954 SC 20, the Hon’ble Supreme Court held that: “17. There is considerable force in these contentions. We are, however, unable to find that the High Court was necessarily in error in holding that the circumstantial evidence in the case was not wholly incompatible with the innocence of the accused and that it did not lead to an irresistible presumption that Dattu was murdered by Limsey. It is unlikely that Limsey would have invited Dattu to his own place on 8th October by a letter with the intention of murdering him. There is no evidence of a preconceived plan to that effect. If the estrangement between the two was still continuing Dattu would not have so readily come to Limsey's house. Ganpat having been disbelieved, there is no evidence of any act or conduct on the part of Kisanrao and Shaligram indicating their participation in this affair. In such circumstances the conclusion as to the guilt of the accused cannot be reached except perhaps by introducing an element of conjecture in the case. It may well be that Dattu and Limsey had some quarrel while they were drinking and smoking together and were trying to adjust their differences and that in the heat of the moment he was struck by Limsey in a manner which brought about his end, or that Limsey administered poison to him to finish him as he was obstinate and would not desist from his defamatory propaganda or even that Dattu died of heart failure. All these possibilities cannot be ruled out. These are, however, pure matters of speculation in the absence of any material pointing to a definite conclusion. It cannot therefore be said that the High Court acted improperly when it held that there was no evidence to establish that Dattu was murdered. The strongest weapon in the armoury of the learned Advocate-General is the existence of a freshly constructed tomb in the loft of Limsey's house wherein the dead body of Dattu was entombed. The conduct of Limsey in constructing Dattu's tomb in the third storey of his house more or less verges on lunacy and is not conclusive evidence of the fact that Dattu had been murdered by him, though it raises a very strong suspicion against him. The High Court was dealing with the case of a person whose mind was so perverted that he could not see that such conduct on his part would surely recoil on himself and be the strongest proof against his innocence. The possibility therefore cannot be ruled out that he may have acted in a similar way in case he wanted to conceal, for reasons of his own, the death of a person brought about by natural causes in his house. It is not difficult to visualize that Dattu died a natural but sudden death and in a moment of panic and confusion Limsey conceived the idea of concealing his death by entombing him in his own house. There are no such circumstances that militate against the theory that Dattu might have died of alcoholic poisoning or of heart failure while sitting in the company of Limsey and drinking heavily. Limsey having been flabbergasted at what had happened might well have thought of disposing of his body in the manner he did in order to conceal the fact that his death took place while he was in his company and was taking liquor and smoking ganja, his object being to avoid bad repute and his place being described as a den of drunkards and resort of ganja-smokers.

18. Moreover, it is not quite clear that the strained relations between Dattu and Limsey were continuing till October 1949. In August 1949 Dattu made efforts of reconciliation and it is not unlikely that he was successful in his effort. The informal letter that Limsey wrote to Dattu on 8th October inviting him to come to his house and Dattu's response to his call suggest that apparently at that moment they were on good terms. There was thus no strong motive for Limsey to murder Dattu. No doubt, a very strong suspicion arises against Limsey by reason of the existence of the tomb of Dattu in his house but we are unable to hold that the High Court after taking into consideration all the circumstances in the case was wrong in not treating this circumstance as conclusive of the guilt of Limsey. As against the other two respondents, there is not the slightest evidence to hold that they are in any way responsible for the murder of Dattu.”

37. In the case of Sucha Singh v. State of Punjab, (2003) 7 SCC 643, the Hon’ble Supreme Court held that: “20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh [(1990) 1 SCC 445: 1990 SCC (Cri) 151: AIR 1990 SC 209].) The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86: 1992 SCC (Cri) 241: AIR 1992 SC 840].) A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.) [(1978) 4 SCC 161: 1978 SCC (Cri) 564: AIR 1978 SC 1091].] Vague hunches cannot take the place of judicial evaluation. “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.” [Per Viscount Simon in Stirlandv. Director of Public Prosecution [1944 AC 315: (1944) 2 All ER 13 (HL)] quoted in State of U.P. v. Anil Singh [1988 Supp SCC 686: 1989 SCC (Cri) 48: AIR 1988 SC 1998] (SCC p. 692, para 17).] Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.

21. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033: (1974) 1 SCR 489] (SCR pp. 492- 93): (SCC p. 799, para 6) “The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. … The evil of acquitting a guilty person light-heartedly as a learned author (Glanville Williams in „Proof of Guilt‟) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted „persons‟ and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. … „a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent….‟

22. The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302: 1988 SCC (Cri) 928: AIR 1988 SC 2154]. Similar view was also expressed in Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381: 2003 SCC (Cri) 32: (2002)

38. The instant criminal appeal has been pending since 2007 in this Court for disposal. The appellant was convicted for offences punishable under Sections 366/506/34 of the IPC vide judgment/order dated 9th January, 2007 of learned Additional Sessions Judge, Delhi. The incident took place on 25th September, 1998.

39. The delay in disposal of criminal appeals pending in the High Court is matter of serious concern to all those involved in the administration of criminal justice. The Hon'ble Supreme Court has repeatedly emphasized the fact that speedy trial or disposal of the criminal appeals pending before High Courts are a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India. The aforesaid Article confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. If a person is deprived of his liberty under a procedure which is not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution of India. It has also been emphasized by the Hon'ble Supreme Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial/disposal of criminal appeal becomes unduly long, the fairness assured by Article 21 would receive a jolt.

40. In the case of Sheela Barse v. Union of India: [1986] 3 SCR 562, The Hon'ble Supreme Court held that: “A Division Bench comprising Bhagwati and R.N. Misra, JJ. re-affirmed that the “right to speedy trial is a fundamental right implicit in Article 21 of the Constitution” and observed “the consequence of violation of fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.”

41. In the case of Srinivas Gopal v. Union of Territory of Arunachal Pradesh, (Now State) 1988 1 SCR 477, the Hon'ble Supreme Court held that: “The Hon'ble Supreme Court quashed the proceedings against the appellant on the ground of delay in investigation and commencement of trial. In this case, investigation commenced in November, 1976 and the case was registered on completion of the investigation in September, 1977. Cognizance was taken by the court in March, 1986. These facts were held sufficient to quash the proceedings particularly when the offence charged was a minor one namely, Section 304-A read with 338 of I.P.C.”

42. In Strunk v. United States, 37 Law Edn. 2Nd 56, it was held that an accused's right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial. It was observed that the desires or convenience of the accused or other individuals are of little relevance and make no difference to the prosecutor's obligation to ensure a prompt trial. The main question considered in this case was whether the violation of the said guarantee entails dismissal of the charges. It was held that dismissal of charges is the only possible remedy where a speedy trial has been denied. Indeed, in this case, the court of appeals was also of opinion that the accused's right to speedy trial was denied but it did not quash the charges but directed merely that the sentence awarded to the accused should be reduced by the period of unconstitutional delay.

43. In the case of Bell v. Director of Prosecution, Jamaica [1985] 2 A.E.R. 585, the Privy Council expressly affirmed the principles enunciated in Barker in the following words: “Their Lordships acknowledge the relevance and importance of the four factors lucidly expanded and comprehensively discussed in Barker v. Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings. The weight to be attached to each factor must however vary from jurisdiction to jurisdiction and from case to case.”

44. In the Criminal Appeal No. 509 of 2017, Hussain v. Union of India, the Hon'ble Supreme Court vide judgment dated 9th March, 2017 held that delay in deciding the criminal appeals are violation of right of accused guaranteed under Article 21 of the Constitution of India. The Hon'ble Supreme Court had framed the guidelines for speedy trial and disposal of criminal appeals.

45. Delay in the context of justice denotes the time consumed in the disposal of case, in excess of the time within which a case can be reasonably expected to be decided by the Court. No one expects a case to be decided overnight. However, difficulty arises when the actual time taken for disposal of the case for exceeds its expected life span and that is when we say there is a delay in dispensation of justice. In its 41st Report, the Law Commission had observed that the Criminal Appeals should be heard at earliest by the High Court to avoid miscarriage of justice and to secure a uniform standard in dealing with such criminal appeals. Conclusion

46. In the instant case, the prosecution has miserably failed to prove its case beyond reasonable doubt. The material contradictions in the ocular testimonies of PW-4, PW-6 and PW-7 about the date and time of the recovery of prosecutrix, age of the prosecutrix and also medical evidence does not support the ocular evidence regarding the rape of the prosecutrix.The present appellant is convicted for the offence punishable under Sections 366/506/34. The FIR was lodged after two days and delay in lodging the FIR was also not explained. The instant criminal appeal has been pending since 2007 before this Court and the incident had taken place in the year of 1998. The age of the prosecutrix was not less than 18 years at the time of the incident.

47. The appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference. The appellate court is not expected to merely substitute its opinion for that of the trial court and it has to exercise its discretion very cautiously to correct an error of law or fact, if any, significant enough to warrant reversal of the verdict of the trial court.

48. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellant. Having regard to the evidence on record as a whole, it is not possible for this court to unhesitatingly hold that charge levelled against the appellant has been proved beyond reasonable doubt. In contrast, the findings of the trial court are decipherably strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. This court is of the unhesitant opinion that the prosecution has failed to prove the charge against the appellant to the hilt as obligated in law and thus, he is entitled to the benefit of doubt. The appeal thus succeeds and is allowed.

49. In case at hand, this Court finds that the material witness that is the mother of the prosecutrix, the friend of the prosecutrix namely Sharda have also not been examined and there are material contradictions in the testimony of the prosecution witnesses and also there is no explanation for delay in lodging the FIR. There is no certain proof of age of the prosecutrix at the time of the incident.

50. After giving anxious consideration to the submissions made by learned counsel appearing on behalf of appellant and learned APP for State, in the light of circumstances discussed above, this Court finds substance in the contentions of the appellant that the prosecution has failed to prove its case beyond reasonable doubt qua the present appellant as he was convicted for offences punishable under Sections 366/506/34 of IPC.

51. Keeping in view the above facts and circumstances, the criminal appeal filed by the appellant is allowed and the impugned order/judgment dated 9th January, 2007 and order on sentence dated 15th January, 2007 passed by learned Additional Sessions Judge, Delhi is set aside. The appellant is acquitted for the offences punishable under Sections 366/506/34 of the IPC. Consequently, the bail bonds of the appellant, who was granted bail and extended time to time, stand cancelled.

52. Accordingly, the instant appeal is disposed of along with pending application, if any.

53. The judgment be uploaded on the website forthwith.

(CHANDRA DHARI SINGH) JUDGE May 12, 2022 dy/gs/ct