# Sita Ram Sharma v. State of U.P

- **Citation:** (2019) 2 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-16
- **Case number:** Jail Appeal No.2623 of 2015
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sita-ram-sharma-v-state-of-u-p-44773
- **Pages:** 13

## Headnote

A. Indian Evidence Act, 1872 - F.I.R. is
not a substantive piece of evidence.

B. Criminal Penal Code, 1973 - Section
154 - There is no time limit to lodge a
F.I.R - But, if it is lodged after a long
unexplained delay and after counseling
and consultation, it demolishes the
plinth of prosecution's castle.

In this case, F.I.R. has been lodged after
seven years of the alleged occurrence. Victim
has not lodged F.I.R. at Police Station. She
had made a complaint to C.W.C., Varanasi
only and that complaint was forwarded to
police. (Para 32)
C. Criminal Procedure Code, 1973 - Section
177 & 178 - Place of Trial - Every offence
must be tried by a Court within whose
local jurisdiction it was committed - If a
court
has
no
jurisdiction
to
take
cognizance and proceed with trial, whole
proceeding of such trial is a nullity (para
40) If jurisdiction is not conferred by any
Statute/Act,
Court
cannot
acquire
jurisdiction, suo moto or on the application
of the victim or any party dealing with the
case. (Para 42 & 43)

The appellant is resident of Village Nimiyatar,
P.S. Dugariya, District Gaya (Bihar), he
prosecuted at Varanasi. Neither investigation
was conducted in place of occurrence nor
evidence was produced regarding place of
occurrence which shows that serious prejudice
has been caused to appellant.
Jail Appeal allowed (E-2)
List of Cases Cited: -

## Text

_Characters 0–39,774 of 41,676. This is a partial read: ask again with offset=39774 for what follows._

2 All. Sita Ram Sharma Vs State of U.P.
441
immediately to District Court concerned
for compliance and further necessary
action and to apprise the accusedappellant through Jail Authority.

56. Before parting, we provide that
Mohd.
Afzal,
Advocate,
who
has
appeared as Amicus Curiae for appellant
in present Jail Appeal, shall be paid
counsel's fee as Rs. 10,000/-. State
Government is directed to ensure payment
of aforesaid fee through Additional Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------

(2019)10ILR A 441

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Jail Appeal No.2623 of 2015

Sita Ram Sharma ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Vinay Saran (A.C.,)

Counsel for the Opposite Party:
A.G.A.

A. Indian Evidence Act, 1872 - F.I.R. is
not a substantive piece of evidence.

B. Criminal Penal Code, 1973 - Section
154 - There is no time limit to lodge a
F.I.R - But, if it is lodged after a long
unexplained delay and after counseling
and consultation, it demolishes the
plinth of prosecution's castle.

In this case, F.I.R. has been lodged after
seven years of the alleged occurrence. Victim
has not lodged F.I.R. at Police Station. She
had made a complaint to C.W.C., Varanasi
only and that complaint was forwarded to
police. (Para 32)
C. Criminal Procedure Code, 1973 - Section
177 & 178 - Place of Trial - Every offence
must be tried by a Court within whose
local jurisdiction it was committed - If a
court
has
no
jurisdiction
to
take
cognizance and proceed with trial, whole
proceeding of such trial is a nullity (para
40) If jurisdiction is not conferred by any
Statute/Act,
Court
cannot
acquire
jurisdiction, suo moto or on the application
of the victim or any party dealing with the
case. (Para 42 & 43)

The appellant is resident of Village Nimiyatar,
P.S. Dugariya, District Gaya (Bihar), he
prosecuted at Varanasi. Neither investigation
was conducted in place of occurrence nor
evidence was produced regarding place of
occurrence which shows that serious prejudice
has been caused to appellant.
Jail Appeal allowed (E-2)
List of Cases Cited: -
1. Thulia Kali Vs St. of T.N. (1972) SCC (Cri.) 543
2. Manoj Kumar Sharma Vs St. of CG. (2016) 3
SCC (Crl.) 407.
3. Shri Rajendra Ramchandra Kavalekar Vs St.
of Mah. & anr. AIR 2009 SC 1792

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. T he present jail appeal, under
Section 383 Code of Criminal Procedure,
1973 (hereinafter referred to as ''Code')
has been filed by accused-appellant Sita
442 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram Sharma (hereinafter referred to as
''appellant') through Superintendent of
District Jail, Varanasi, against judgment
and order dated 22.5.2015 passed by
Additional Session Judge (Fast Track
Court, Varanasi) in Session Trial No. 181
of 2013, (State vs. Sita Ram Sharma),
Police Station (hereinafter referred to as
''P.S.') Cantt, District Varanasi, under
Section 323/376 I.P.C., whereby, he has
been acquitted for an offence under
Section 323 I.P.C. and convicted and
sentenced for offence under Section 376
I.P.C. for life imprisonment and fine of
Rs. 20,000/-. In default of payment of
fine, he has further been directed to under
go for one year simple imprisonment.

2. The brief facts of prosecution case
are that PW-1, victim (name of the
prosecutrix is not being disclosed in this
judgment, she is being shown as ''PW-1,
victim') is daughter of appellant, who is
resident of Village Nimiyatar, P.S.
Dugariya, District Gaya (Bihar). PW-1,
victim appeared, on 29.5.2013 at 6:30
p.m., at P.S. Cantt, District Varanasi, with
Sister Manju (PW-5), Director of DARE
Organization
(N.G.O.)
2656
C.I.M.
Colony, Sikrol P.S. Cantt, and lodged
First
Information
Report
(Ex.Ka.1)
(hereinafter referred to as ''F.I.R.')
addressed to Child Welfare Committee
(hereinafter referred to as "C.W.C"),
alleging that she had left her house in
2006 because appellant, her father, used
to commit rape with her and also beat her.
He also used to commit rape with her
elder sister and when her elder sister
happened to pregnant, he got her
pregnancy aborted. In F.I.R. it has also
been stated that her father, appellant used
to beat her mother to such extent that her
mother got mentally sick. In view of
above fact, she wanted to lodge her father
in jail because she did not know that her
father had committed how many such
offences. It was also been stated that she
became so fed up with his father that she
fled away, leaving her house, and is away
from her house since eight years. She
hates her father and wish to get her father
punished with severe punishment. Upon
such information, Chik F.I.R. (Ex.Ka.6)
was prepared by PW-7 Const. Rajesh
Kumar and the said information was
entered in General Diary (Ex.ka.7).
Victim was sent for medical examination
and investigation was under taken by PW4 S.I. Dhakeshwar Singh.

3 . PW1-Victim was examined by
PW-6, Dr. Krishna Yadav. According to
him, secondary sexual character of victim
were fully developed. No injury was
found either on her body or on her private
part; her hymen was torn; vagina admits
two fingers easily. She had prepared
vaginal smear slides of victim and sent it
to
pathologist
for
examination
of
spermatozoa.
According
to
her,
in
pathological and radiological test, no dead
or alive spermatozoa were found; and as
per report of Child Medical Officer
(hereinafter referred to as "C.M.O"),
Varanasi, victim was aged about 19 years.
She prepared Medico Legal Examination
Report (Ex.Ka.4/1) and its supplementary
report (Ex.Ka.5) but no definite opinion
regarding rape could be given.

4. During investigation, S.I. PW-4,
Dhakeshwar
Singh
(I.O.)
recorded
statement of PW-1-Victim, her sister,
Director NGO (PW-5) and statement of
appellant-Sita Ram Sharma. Meanwhile,
he
was
transferred
and
further
investigation was handed over to PW-3
S.I. Shivanand Mishra who perused
medical report of victim and copied it in
2 All. Sita Ram Sharma Vs State of U.P.
443
case diary. He produced the victim before
Judicial Magistrate (ACJM-II), Varanasi,
where her statement was recorded under
Section 164 of Code. Meanwhile, he was
also transferred and investigation was
handed over to PW-2 S.I. Triveni Lal who
recorded statement and asked the victim
for inspection of the place of occurrence
but victim did not give her consent. She
was not ready to go to her village. On the
request of victim, he did not transfer
investigation to State of Bihar. Upon
conclusion of investigation, he filed
charge-sheet (Ex.Ka.4), under Section
376, 323 IPC and Sections 4/6/10 POCSO
Act, 2012 before Session Judge, Varanasi,
who took cognizance of the offence and
transferred trial before ASJ, Court No. 9.

5. Charges were framed against
appellant under Section 376, 323 IPC
which read as under:-

eSa Mh0Mh0 vks>k] vij ls'ku U;k;k/kh'k]
U;k;ky; la0 09] okjk.klh ,rn}kjk vki&

lhrkjke 'kekZ iq= ik.Ms 'kekZ] ij
fuEu vkjksi fojfpr djrk gWw %&

;g fd vki vfHk;qDr us vkidh iq=h
ihfM+rk tks vkids lkFk vkids ?kj xzke fufe;k
Mhg] Fkkuk Mqefj;k] ftyk x;k 1⁄4fcgkj1⁄2 esa jgrh
Fkh] ds lkFk o"kZ 2006 esa mlds ?kj NksM+dj
Hkkxus ds iwoZ le; le;j ;g tkurs gq, fd og
ml le; 12 o"kZ ls de vk;q dh vo;Ld Fkh]
ds lkFk cykr~dkj fd;k djrs FksA vkidk ;g
d`R; /kkjk 376 Hkk0n0la0 ds varxZr n.Muh; gS
vkSj bl U;k;ky; ds izlaKku esa gSA

;g fd mijksDr vof/k esa vkius
viuh vo;Ld iq=h ds lkFk cykr~dkj djus ds
fy, mlds ,rjkt djus ij mls ekjrs ihVrs Fks
vkSj LosPN;k migfr dkfjr djrs FksA ,r}kjk
vkidk ;g d`R; /kkjk 323 Hkk0n0la0 ds varxZr
n.Muh; gS vkSj bl U;k;ky; ds izlaKku esa gSA

vkjksi i<+dj vfHk;qDr dks lquk;k o
le>k;k x;k] ftlls vfHk;qDr us budkj fd;k
vkSj fopkj.k dh ekax dhA

,r}kjk vkidks funsZf'kr fd;k tkrk
gS fd mDr vkjksi esa vkidk fopkj.k bl
U;k;ky; }kjk fd;k tk;xkA

I, D.D. Ojha, Additional Session
Judge, Court No. 9 Varanasi hereby
charge you Sita Ram Sharma, son of
Pandey Sharma as follows:-

First, That you accused in the
year 2006 used to commit rape with your
daughter (victim) when she resides with
you in your house at Village Nimiyatar,
P.S. Dungariya, District Gaya (Bihar)
before her rendering away from her
house, knowing that she was below the
age of 12 years, and thereby committed
an offence which is punishable under
Section 376 I.P.C., and comes within the
cognizance of this Court.

Secondly. That during aforesaid
period ,in order to commit rape with your
daughter, you use to beat and voluntarily
causes hurt on her objection, committed
such act which is punishable under
Section 323 I.P.C., and is within the
cognizance of this Court.

Charges were read over and
explained to the accused-appellant who
pleaded not guilty and claimed to be tried.

You are hereby directed to be
tried
for
the
aforesaid
charges.
(Translated by Court)

6. In order to prove its case, total
seven
witnesses
were
produced
by
prosecution. PW-1-victim, is a witness of
fact whereas PW-2, S.I. Triveni Lal Singh
444 INDIAN LAW REPORTS ALLAHABAD SERIES
(I.O.); PW-3 S.I. Shivanand Mishra
(I.O.); PW-4 Dharkeshwar Singh (I.O.);
PW-5 Sister Manju, Incharge, DARE
Institution, Varanasi; PW-6 Dr. Krishna
Yadav and PW-7 Const. Rajesh Kumar
are formal witnesses.

7. Upon conclusion of prosecution
evidence, statement of appellant was
recorded under Section 313 of Code. He
denied evidence produced by prosecution
and stated that he had been called from
his house for a meeting with his daughter
(victim) and had been implicated in false
case; his daughter had fled away from his
house in 2006; he made best effort to
search his daughter, but could not
searched her out; and now after eight
years, all of sudden she had been
recovered but due to mistake and
conspiracy, a false case was lodged
against him.

8. Pursuant to opportunity given by
Trial Court to appellant, he produced
DW-1 Sanju Devi and DW-2 Prabha Devi
who are his daughters.

9. Upon conclusion of trial, and after
hearing arguments of both the parties,
appellant was convicted and sentenced as
above.
Aggrieved
by
the
aforesaid
impugned judgment and order, appellant
has preferred this appeal.

10. Heard, Sri Vinay Saran (Amicus
Curiae), Advocate appearing for appellant
and learned A.G.A. for State.

11. Learned Amicus Curiae for
appellant submits that F.I.R. has been
lodged
after
eight
years
and
no
explanation has been given for such
inordinate delay; sole testimony of victim
is neither trustworthy nor reliable; Trial
Judge has no jurisdiction to try this case
and pass impugned judgment and order as
the offence was caused in exclusive
jurisdiction of Session Division, Gaya,
State of Bihar; and no offence was
committed within the jurisdiction of
Session
Division,
Varanasi,
Uttar
Pradesh; ocular evidence is not supported
by medical evidence; Trial Judge without
discussing any merit or demerit of the
case has passed the impugned judgment
and order in a very cursory manner;
appellant is innocent and has been falsely
implicated; hence impugned judgment
and order is illegal and liable to be set
aside.

12. Per-contra, learned A.G.A.
vehemently opposing the submission of
learned Amicus Curiae, has submitted that
the sole testimony of victim is sufficient
for proving the case of prosecution; no
further corroboration is required; though
there is inordinate delay in lodging F.I.R.
but it is self explained and justifiable in
the facts and circumstances of this case;
irregularity or jurisdictional error in
conducting
trial
will
not
affect
prosecution evidence; prosecution has
succeeded to prove its case beyond
reasonable doubt against the appellant,
hence appeal is liable to the dismissed.

13. We have considered rival
submissions of learned counsel for both
the parties and have gone through the
entire record.

14. At the very outset, it is pertinent
to point out that according to prosecution
case, PW1-victim is resident of villageNimiyatar, P.S. Dungariya, District Gaya,
State of Bihar. She has stated that it had
been around 8-10 years, since she had left
her house; behaviour of her father with
2 All. Sita Ram Sharma Vs State of U.P.
445
her was not good; she used to sleep at
night along with her brother Pankaj and
her father, appellant, together; when they
fell asleep, her father appellant used to
commit rape with her; she understood the
meaning of rape; she had told her mother
about her being raped by father; since her
father would beat her mother, she (her
mother) could not protest; she had been
raped 3-4 times at night for several days
and getting fed up, she ran away from her
house and reached the house of one
Muslim family in Gaya District; there she
stayed for 3-4 months; their behaviour
was also not good, and they also tried to
rape her, hence she ran away from there
also, to Barh (District of Bihar); she came
across, a boy Munna who brought her to
his maternal aunt's house, that aunt used
to send her to collect garbage along with
her own children, but when she refused,
she (aunt) drove her away from her house;
thereafter she went to Delhi, and stayed
there with one Umar Raza; in Barh, she
had lived with one Aftaab Alam also;
there Aftab Alam's sister rang her and
called her to Delhi; after 5 years, she
came from Delhi to Allahabad; in
Allahabad, police nabbed her; police
wanted to sent her to Aashram (Nari
Niketan) but she refused, as she came to
know that there also rape was being
committed; then she was sent to Child
Line and from there she was sent to
Banaras Child Line Sikrol. According to
her, she gave an application (Ex.Ka.1) in
her own handwriting and signature to
C.W.C., on the basis of whereof, case was
lodged. She has further stated that she had
also given an application (Ex.Ka.2) in her
own handwriting that her criminal case be
tried in Banaras. She was medically
examined and her statement was recorded
under Section 164 of Code (Ex.Ka.3).

15. PW-5, Sister Manju, Director of
N.G.O. named DARE, has stated that
victim did reside at Allahabad in the
house of lady named Treesha George,
who called her on phone stating that
victim needs her help, as some wrong has
happened to her. On her call, victim was
brought at her institution at Varanasi on
6.5.2013; she had a counselling with her,
whereupon, victim told that her father
committed rape with her at the time when
her age was 8-9 years; therefore, she had
fled away to Delhi from her house and
joined a job of maid servant; after 3-4
years, she again fled away from there, but
caught by officials of Child Line Centre
and thereafter she started a job of maid
servant in the house of Tresha George
(Allahabad). After counselling to victim,
she traced out victim's house and
informed to C.W.C., Varanasi along with
victim on 20.5.2013. On the direction of
C.W.C, F.I.R. was lodged. She also
handed over victim's father (appellant) to
police; victim was medically examined;
and she had gone with victim to police
station and victim was returned into her
custody.

16. PW-6, Dr. Krishna Yadav,
Medical
Officer,
District
Woman
Hospital, Varanasi has stated that on
29.5.2013
at
10:45
p.m.,
she had
examined victim (PW-1) who had been
brought before her by a lady Constable,
C.P. No. 361, Pooja Rai (details of
examination report has already been
noted in para 3 of this judgment).

17. PW-4, S.I. Dhakeshwar Singh,
(1st I.O.) of the case has stated that he
was posted as Senior Sub-Inspector
(S.S.I.) at P.S. Cantt on 29.5.2013 and
undertook investigation of the case.
During investigation, he had recorded
446 INDIAN LAW REPORTS ALLAHABAD SERIES
statements of victim (PW-1), Smt. Manju
(PW-5) and also of appellant.

18. S.S.I. Dhakeshwar Singh (PW4), has stated that during investigation, he
had perused and copied medico legal and
pathological report of victim; he had
produced victim before Court for getting
her statement recorded under Section 164
of Code and copied her statement in case
diary.

19. PW-2, S.I. Triveni Lal (3rd I.O.) who
had undertaken investigation after transfer of
PW-3, has stated that he had recorded
supplementary statement of victim during
investigation. According to him, victim had
stated that she was not willing to return back to
her parental house and had given an application
that trial be not transferred to Bihar. According
to him, on the application of victim,
investigation of the case was not transferred to
concerned police station of Bihar, instead he
had submitted charge-sheet (Ex.Ka.4) under
section 376 (2), 323 I.P.C. and 4/6/10 of
POCSO Act, 2012 before Court.

20. PW-7, Constable Rajesh Kumar
has proved Chick F.I.R. (Ex.Ka.6), and
copy of G.D. (Ex.Ka.7), prepared by
Constable Satya Pratap Singh, posted on
29.5.2013 with this witness.

21. To controvert the allegations
made by prosecution, appellant has
produced in defence his own two
daughters DW-1 Sanju Devi and DW-2
Prabha Devi.

22. 15. DW-1, Sanju Devi, aged
about 32 years, stated that the appellant is
her father; PW1-victim is her youngest
sister who was lost, about 9-10 years back
when she (PW1-victim) was aged about
8-7 years. She has specifically stated that
her father is innocent, all the charges
levelled against him are false; her father
had made herculean efforts to search the
victim but failed.

23. DW-2 Prabha Devi has also
stated in same way as D.W.-1 Sanju Devi
had. She has stated that the charges
levelled against her father by victim
regarding rape with her and victim are
false; her father is very innocent; he
brought up and maintained her very well
and to each siblings; and she and her
sisters Sanju Devi are very happy in their
matrimonial life.

24. In this case, serious allegations
have been made by a daughter against her
own father for rape. It is settled principle
of law that if evidence of victim of rape is
natural, trustworthy and reliable, no
further corroboration is required. Thus it
has to be seen whether statement of
victim inspires confidence of the Court or
not.

25. The prosecution case is based on
sole testimony of victim. F.I.R. (Ex.Ka.1)
has been lodged on 29.5.2013, wherein, it
has been mentioned that victim had left
her house in 2006 because her father
(appellant) used to commit rape upon her.
It is clear that F.I.R. has been lodged after
7 years of the incident. PW-1, Victim has
stated that after leaving her house in 2006,
she had resided in a Muslim family in
Gaya District where she stayed for 3-4
months and then left that Muslim's family
house and fled away, as an attempt for
rape with her was also made there.
Thereafter, she had gone to Barh District
and then came back to Patna. According
to her in Patna, she came into contact with
one Munna who led her to his aunt's
house
and
on
the
direction
and
2 All. Sita Ram Sharma Vs State of U.P.
447
supervision of that aunt, she used to
collect garbage along with her (aunt's)
children and one day when she refused to
do so, she (aunt) drove her away from her
house. Thereafter, she left for Delhi and
stayed with one Umar Raza and again
with
Aftab
Alam
for
five
years.
Thereafter, she came back to Allahabad
from Delhi. According to her, Allahabad
police nabbed her and wanted to keep her
in an Aashram (Nari Niketan) but she
refused to do so because she knew that in
Aashram, rape was being committed.
Then she was sent to Child Line Center
and from there, she was again sent to
Banaras Child Line, Sikrol.

26. In cross-examination, she has
stated that when her father committed
rape, for the first time, penetrated his
penis into her vagina, but no blood had
come out and she did not suffer any pain.
In cross-examination she made allegations
against her own brother Prahlad and
stated that at Barh, where she used to
reside with her mother, her brother
Prahlad had committed rape with her
when
was
aged
about
6-7
years.
According to her, when her brother
Prahlad had committed rape, first time
with her, neither she felt any pain nor any
blood came out. She has also stated that
her father (appellant) used to commit rape
with her elder sister Prabha Devi (DW-2).
She stated that she did not know whether
any pain or bleeding would happen with
any girl at the time of rape committed for
the first time. She has also stated that she
had not made any allegation in F.I.R.
against her brother because she knew that
her brother was young at the time of
occurrence; newly married; had two
children and on that very account she did
not intend to disturb his family.

27. In addition to above, in crossexamination, she has also admitted that
she had not disclosed anything regarding
rape committed by her father to any
person during this period. In crossexamination, she had stated, when she
met to a Maulana nearby a Masjid, upon
query made by him, she said that her
father used to beat her but she did not
disclose anything regarding rape. Her
statement, in this regard, as under:-

**?kj NksMus ds ckn eS iSny fnu Hkj
pyrh jgh jkr gks x;h rks ,d efLtn ds ikl
eS cSB xbZ Fkh mlds ckn ,d ekSykuk }kjk ;g
iwNus ijfd es vdsys ;gkW D;k dj jgh gWw es
jksus yxhA mlds }kjk iwNus ij esus crk;k fd
fufEk;k VkM ls vk;h gWwA mlus eq>ls iwNk fd
D;ksa vk;h gks rks eSus crk;k fd ikik eq>s ekjrs
Fks eSus ekjus dh gh ckr crk;h cykRdkj dh
ckr ugh crk;h FkhA

28. From perusal of her statement, it
appears that she was also caught by Police
(GRP), interrogated and sent to Child Line.
According to her, she was medically examined.
She has also stated that officials of Child Line
wanted to send her in Balika Grah, but she
refused to go. One Father Deepak took her
away from father of Child Line and got her
admitted in class 10th (private). She did not go
to school and studied at the house of Father
Deepak. Accoding to her, after sometime she
had fallen ill. Father Deepak got her medically
treated and thereafter sent her to a nurse (aunty
Diza George), where she resided for 6-7
months and worked as maid servant. Thereafter
she was taken to Sister Manju (PW-5).

29. Thus it is clear that during these
7-8 years years, the victim met so many
people, worked for so many people, in so
many houses, she was also caught by
police but she never disclosed to any one
448 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding offence of rape committed by
her father.

30. In these peculiar facts and
circumstances of this case, the statement
of victim that rape was committed by her
brother when she was at age of 5-6 years
and also by his father (appellant) on
several times, when she was 7-8 years
old, but neither she felt pain nor any
blood came out and also non disclosure of
such incident to any person for 7-8 years,
does not inspire our confidence and it is
not safe to hold that prosecution has
succeeded to prove its case beyond
reasonable doubt.

31. PW-6 Dr. Krishna Yadav has
clearly stated that she could not say,
whether, any rape was committed against
victim or not.

32. F.I.R., although is not a
substantive
piece
of
evidence,
but
generally, if it is free from any infirmity,
forms basis of prosecution case. It is
settled principle of law that there is no
time limit for lodging F.I.R., but if it is
lodged after huge and unexplained delay
and after counselling and consultation, it
demolish the plinth of prosecution's
castle. In Thulia Kali vs. State of Tamil
Nadu 1972 SCC (Cri.) 543, where delay
in lodging F.I.R., was of 20 hours without
any proper justification, Court, setting
aside conviction of appellant, held:-

"The 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 the trial. 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 there scene of
occurrence. Delay in lodging the first
information report quite often results in
embellishment which is a Creature of
after thought. It is therefore essential that
the delay in lodging the report should be
satisfactorily explained."

33. In Manoj Kumar Sharma vs.
State of Chhattisgarh (2016) 3 SCC
(Crl.) 407, Court in case where F.I.R. was
lodged after 5 years, quashed criminal
proceeding, and held:-

"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. In our opinion, such
extraordinary delay in lodging the FIR raises
grave doubt about the truthfulness of
allegations made by Respondent 2 herein
against the appellants, which are, in any case,
general in nature. We have no doubt that by
making such reckless and vague allegations,
Respondent 2 herein has tried to rope the
appellants in criminal proceedings. We are of
the confirmed opinion that continuation of the
criminal proceedings against the appellants
pursuant to this FIR is an abuse of the process
of law. Therefore, in the interest of justice, the
FIR deserves to be quashed".

34. In this case too, F.I.R. has been
lodged after seven years of the alleged
occurrence. Non disclosure of offence to
any person or authority for seven years
has made the conduct and behaviour of
victim unnatural which render prosecution
2 All. Sita Ram Sharma Vs State of U.P.
449
version doubtful. Record shows that
victim has not lodged F.I.R. at Police
Station Cantt. She had made a complaint
to C.W.C., Varanasi only and that
complaint was forwarded to police.
Information to police was also not given
to any police station when victim (PW-1)
narrated story of rape either to Madam
Treesa George, where victim was working
as maid servant or when it came into
knowledge of PW-5, Sister Manju on
6.5.2013 or into cognizance of C.W.C. on
20.5.2013. It was lodged on 29.5.2013
when her father, appellant, came and
insisted her (victim) to return back to
home but she refused to return. PW-5,
Sister Manju has also stated that F.I.R.
had been lodged on direction of C.W.C.
In cross-examination, she said that she
had gone with victim at police station for
lodging F.I.R. It is also apparent from
statement of PW1-victim and PW-5,
Sister Manju that prior to lodging F.I.R.,
PW-1, victim was instigated, counselled
and assisted by a team of N.G.O.
including PW-5. Record further shows
that appellant, poor father of the victim,
upon information had come to victim and
wanted to get her returned to home and as
soon as he expressed his willingness,
F.I.R. was lodged against him. In such
situation, we are of the opinion that delay
in
lodging
F.I.R.,
without
any
explanation, has created a serious doubt
on the genuineness of prosecution case.

35. In addition to above, there is
another serious lacuna in the prosecution
case. As per prosecution case, victim and
appellant
are
residents
of
Village
Nimiyatar, P.S. Dugariya, District Bihar.
This offence of rape, for which appellant
has been prosecuted, had been committed
prior to 7-8 years from lodging F.I.R. at
village
Nimiyatar,
P.S.
Dungariya,
Session Division (District) Gaya, Bihar. It
is not a case of prosecution that any
offence of rape has been committed by
appellant at any place in Session Division,
Varanasi or in even at any place in Uttar
Pradesh. Record shows that at very early
stage
of
investigation,
PW-4,
S.I.
Dhakeshwar Singh had learnt that the
offence was not committed within the
jurisdiction of P.S. Cantt, Varanasi. In
cross-examination, he has specifically
stated that he had made entry in case diary
that the offence was not related with
jurisdiction
of
P.S.
Cantt,
District
Varanasi and he had referred the case for
legal opinion of higher officers. PW-2,
another I.O., S.I. Triveni Lal Sen has also
stated that he had tried to take the victim
(PW-1) to the place of occurrence for its
inspection,
whereupon,
she
started
weeping and insisted not to take her to her
home. According to him, she did not
agree to go to the place of occurrence and
made an application that her case should
not be transferred to Bihar and she would
pursue her case here (in Uttar Pradesh)
and get her father convicted. This witness
(PW-2) has also stated that on the request
of PW-1 (victim), he had not transferred
investigation to Bihar and filed a chargesheet against appellant.

36. PW-3 S.I. Shivanand Mishra, in
his cross-examination, has stated that he
had neither visited the place of occurrence
nor had gone to village Nimiyatar,
District Gaya (State of Bihar). When he
learnt that place of occurrnce belongs to
District Gaya (Bihar), he had not felt the
necessity of transfer investigation. Thus
Investigating Officers (I.O.) of the case
had not made any attempt either to visit
the place of occurrence or to prepare any
site plan.
450 INDIAN LAW REPORTS ALLAHABAD SERIES

37. Trial Judge, without making any
attempt to peruse the record, to find out
whether, offence was committed within
Jurisdiction of Session Division, Varanasi
(Uttar Pradesh) or not, took cognizance of
offence and also framed charge, wherein,
it has been specifically mentioned that
offence
was
committed
at
Village
Nimiyatar,
Dugariya,
District
Gaya
(Bihar).

38. Chapter XIII of the Code
contains
the
provision
regarding
jurisdiction of Criminal Courts in inquiry
and trials. Section 177 and Section 178 of
this Chapter are relevant in this matter
which are as under:-

Section 177. Ordinary place of
inquiry and trial : Every offence shall
ordinarily be inquired into and tried by a
Court within whose local jurisdiction it
was committed.

Section 178. Place of inquiry or
trial : (a) When it is uncertain in which of
several local areas an offence was
committed, or

(b)
Where
an
offence
is
committed partly in one local area and
partly in another, or

(c) Where an offence is a
continuing one, and continues to be
committed in more local areas than one, or

(d) Where it consists of several
acts done in different local areas, it may
be inquired into or tried by a Court
having jurisdiction over any of such local
areas.
 (Emphasis added)

39. The aforesaid provision clearly
provides that it is a general rule that every
offence shall ordinarily be inquired into
and tried by a Court within whose local
jurisdiction it was committed, whereas, if
there
is
uncertainty
of
place
of
occurrence; or offence was committed
partly in one area and partly in another; or
offence is continuing one and continues to
be committed in more local areas than
one; or such offence consist of several
acts done in different local areas; in such
cases it may be inquired or tried by any
Court having jurisdiction over any such
local areas.

40. The word shall in Section 177
and the word may in Section 178 of the
Code signifies that general rule regarding
jurisdiction of criminal trial and enquires
is that every offence must be tried or
inquired by a Court within whose local
jurisdiction it was committed. In some
cases, covered by Section 178 of the
Code, trial or inquiry may be conducted
by another Court with aid of this Section.
In such cases, if any Court, whose
jurisdiction, is not covered by Section 177
of the Code takes cognizance and tries the
offence in view of Section 178 of the
Code, it must be shown and established
by prosecution from record that such
offence is covered by Section 178 of
Code. In this matter, it is not a case of
prosecution / State that any offence of
rape was committed at any place in Uttar
Pradesh or this matter comes within the
purview of Section 178 of the Code,
whereas, fact of prosecution case as well
as the charge dated 7.10.2013 framed by
Trial Court specifically shows that the
offence
was
committed
at
Village
Nimiyatar
P.S.
Dungariya,
District
(Session Divison) Gaya (State of Bihar).

41. Plea of jurisdiction was raised by
appellant before Trial Court, but rejected
on the ground that there was a direction of
2 All. Sita Ram Sharma Vs State of U.P.
451
High Court for conclusion of Trial within
four months and no prejudice had been
caused
to
appellant.
Jurisdiction
empowers an authority to a court to
proceed with trial. If a court has no
jurisdiction to take cognizance and
proceed with trial, whole proceeding of
such trial is a nullity. Although Section
462
of
the
Code
protects
some
jurisdictional irregularity whereby no
prejudice is caused to accused but this
case is not covered by Section 462 of the
Code. In this case, no Court of Session
Division of State of Uttar Pradesh is
empowered to take cognizance because
offence was committed in State of Bihar
and no offence either directly or indirectly
has
been
committed
within
the
jurisdiction of Uttar Pradesh.

42. In addition to above, it is also
pertinent to mention at this juncture that
object and purpose of the Code is that trial
and investigation be conducted fairly.
Accused-appellant is resident of District
Gaya, Bihar; he was prosecuted at
Varanasi,
in
another
State,
where
appellant neither used to resides nor has
any resources to defend himself. Victim
(PW-1) was being assisted by PW-5,
Sister Manju, Director DARE (N.G.O.).
Neither investigation was conducted in
relation to place of occurrence nor
evidence was produced regarding place of
occurrence and appellant was deprived of
cross-examine to prosecution witnesses
regarding place of occurrence which
shows that serious prejudice has been
caused to appellant.

43. It is settled principle of law that
a Court, if has not been conferred
jurisdiction by any Statutes or Act, it
cannot acquire jurisdiction suo moto or on
the application of the victim or any party
dealing with the case. In Shri Rajendra
Ramchandra kavalekar vs. State of
Maharashtra and Anr. AIR 2009 SC
1792, Court has held:-

"The territorial jurisdiction of a
court with regard to criminal offence
would be decided on the basis of place of
occurrence of the incident and not on the
basis of where the complaint was filed
and the mere fact that FIR was registered
in a particular State is not the sole
criterion to decide that no cause of action
has arisen even partly within the
territorial limits of jurisdiction of another
court. The venue of enquiry or trial is
primarily to be determined by the
averments contained in the complaint or
charge sheet. Section 177 of Criminal
Procedure Code provides that every
offence shall ordinarily be inquired into
and tried by a court within whose local
jurisdiction it was committed."
 (Emphasis added)

44. Supreme Court, in Manoj
Kumar Sharma's case (supra) where
deceased had died in her matrimonial
house within the jurisdiction of Mallana,
District Ambala (Punjab) and upon
inquiry, it was found that no offence had
made out. F.I.R. was lodged for same
offence after 5 years at Bhilai Nagar,
District
Durg
(Chhattisgarh),
while
quashing F.I.R. on the ground of lack of
territorial jurisdiction, has held as under:-

27. "The territorial jurisdiction
of a court with regard to a criminal
offence would be decided on the basis of
the place of occurrence of the incident. In
the
instant
case,
the
suicide
was
committed at Ambala. Ambala Police
closed the case after fulfilling the
requirements of Section 174 of the Code
452 INDIAN LAW REPORTS ALLAHABAD SERIES
holding that there was no foul play in the
incident
and
also
there
was
no
requirement of lodging FIR under Section
154 as none of the family members of the
deceased raised any suspicion over the
death even though the death
was
committed
within
seven
years
of
marriage. Also, there is no evidence of it
being a continuing offence. Hence, the
offence alleged cannot be said to have
been committed wholly or partly within
the local jurisdiction of the Magistrate's
Court at Durg. Prima facie, none of the
ingredients constituting the offence can be
said to have occurred within the local
jurisdiction of that Court".

28. In the case on hand, as per
the materials on record, in Crime No. 194
of 2005, charge-sheet has been filed and
the Judicial Magistrate First Class, Durg
has taken cognizance of the proceedings.
In the present fact situation, we are of the
considered opinion that the court at Durg
has no territorial jurisdiction to try the
case and the proceedings are liable to be
quashed on the ground of lack of
territorial jurisdiction since the entire
cause of action for the alleged offence
had purportedly arisen in the city of
Ambala."

45 . It is also pertinent to mention
that PW-1, victim has not only made
allegations against her father and brother
regarding rape committed with her, she
has also made a false allegation regarding
rape committed by her father (appellant)
with her own sister. DW-1 Sanju Devi
and DW-2, Prabha Devi are real sisters of
victim. They have categorically stated that
her younger sister (victim) had fled away
at the age of 7-8 years about 9-10 years
ago. They have also stated that the
allegation of rape committed by her
father, upon victim and her sister (DW-2)
are false. According to them, their father
(appellant) had made herculean efforts to
trace out their sister (victim) and when he
could not succeed, became hopeless.

46. From perusal of impugned
judgment and order dated 22.5.2015
passed
by
learned
Trial
Judge,
it
transpires that learned Judge has neither
discussed the evidence available on
record
nor
properly
discussed
the
submission made by defence counsel,
particularly regarding jurisdiction, delay
in
lodging
F.I.R.
and
also
on
trustworthiness of statement of PW-1
victim, or has appreciated the same
correctly.

47. Thus, in view of the above
discussion, we are of considered view that
prosecution has miserably failed to prove
its case beyond reasonable doubt against
appellant-Sita Ram Sharma. Besides, the
trial
itself
was
without
territorial
jurisdiction. He is entitled to be acquitted
against charge levelled against him. The
judgment and order passed by Additional
Session Judge / Fast Track Court,
Varanasi in Session Trial No. 181 of 2013
is hereby set aside. Consequently, the
appeal is allowed.

48. The appellant is in jail. He, if not
wanted in any other case, shall be released
forthwith.

49. Keeping in view provisions of
Section 437-A of Code, appellant Sita
Ram Sharma is hereby directed to
forthwith furnish a personal bond of the
sum of Rs. 10,000/- and two reliable
2 All. Bindhyavasini Gond Vs State of U.P.
453
sureties of the like amount, before the
Trial Court, which shall be effective for a
period of six months, along with an
undertaking that in the event of filing of
Special Leave Petition against judgment
or for grant of leave, appellant on receipt
of notice thereof, shall appear before
Supreme Court.

50. A copy of this judgment be sent
to
Trial
court
and
concerned
Superintendent of Jail by FAX for
immediate
compliance.
Compliance
report whereof be submitted within one
month.

51. Lower court's record be also sent
back along with a copy of this judgment.

52. Sri Vinay Saran, learned Amicus
Curiae has assisted the Court very
diligently. We provide that he shall be
paid counsel's fee as Rs. 15,000/-.