High Court Punjab-Haryana High Court

Juber vs State Of Haryana on 4 December, 2009

Punjab-Haryana High Court
Juber vs State Of Haryana on 4 December, 2009
Criminal Revision No. 1900 of 2003                              -1-


        In the High Court of Punjab and Haryana at Chandigarh


                              Criminal Revision No. 1900 of 2003
                              Date of Decision:December 04, 2009


Juber


                                           ---petitioner


                   versus


State of Haryana


                                           ---Respondent


Coram:       HONBLE MR. JUSTICE GURDEV SINGH

                 ***

Present:     Mr. Mukesh Yadav, Advocate,
             for the petitioner

             Mr.Raja Sharma, Asstt. Advocate General, Haryana

                   ***

GURDEV SINGH, J.

This revision by Juber-accused -petitioner has been preferred

against judgment dated 28.8.2003 passed by Shri A.K.Singh Panwar,

Additional Sessions Judge, Gurgaon, vide which he dismissed the appeal

filed by the accused against the judgment dated 20.8.1999 passed by

Judicial Magistrate Ist Class, Nuh (Gurgaon), vide which he was convicted

for the offence under Section 377 of the Indian Penal Code and was

sentenced to undergo rigorous imprisonment for a period of three years

and to pay a fine of Rs. 5000/- and in default thereof to undergo simple
Criminal Revision No. 1900 of 2003 -2-

imprisonment for a period of six months.

The prosecution story, in brief, is that on 14.9.1996, the

complainant – Shaukat, PW-1 was grazing the cattle at a distance of

about 1 Km from his native village Mohammadpur Dhani. The accused

was also grazing his cattle at that place. He caught hold of Shaukat and

threw him on the ground. After tying his hands with the help of safi (piece

of cloth), he opened the trousers of the complainant and committed carnal

intercourse with him against the order of nature. Though, the complainant

cried for help still no one came to his rescue. As a result of this sodomy,

he became unconscious. After regaining conscious, he came to his house

and narrated the incident to his father Yakub Khan, PW-5. The matter was

reported to the police and the FIR was registered against the accused. The

complainant was medically examined by Dr. P.K.Sharma, PW-7 who

found injuries on his anal. The accused was arrested on 15.9.1996 and was

medically examined by the same doctor. During the course of

investigation, statements of the witnesses were recorded and after

completion of the investigation, challan was put in before the Judicial

Magistrate Ist Class for the trial of the accused, who found prima facie

case against him and accordingly, charged him for the offence under

Section 377 IPC. The accused pleaded not guilty and claimed trial. For

proving guilt of the accused, prosecution examined Shaukat-complainant,

PW-1, Constable Mukh Ram, PW-2, Suban, PW-3, Yakub, PW-4,

Constable Sher Mohammad, PW-5, S.I. Ram Chander, PW-6, Dr.

P.K.Sharma, PW-7. After the prosecution closed its evidence, the accused

was examined by the trial court and his statement was recorded under

Section 313. Cr.P.C. The incriminating circumstances appearing against
Criminal Revision No. 1900 of 2003 -3-

him in the prosecution evidence were put to him. He denied the same and

pleaded his false implication due to previous enmity. He was called upon

to enter on his defence. In defence, he examined Lallu-DW-1 and Rattan

Lal-DW-2. After hearing the Assistant Public Prosecutor and learned

defence counsel for the accused and going through the records of the case,

learned Judicial Magistrate Ist Class convicted and sentenced the accused as

aforesaid. He preferred an appeal against his conviction and sentence which

was dismissed vide impugned judgment dated 28.8.2003.

Notice of the revision was given to the State and the same has

been contested on its behalf by Sh. Raja Sharma, Assistant Advocate

General, Haryana.

I have heard learned defence counsel for the petitioner and

Assistant Advocate General, Haryana, and have carefully gone through the

case file.

Learned counsel for the petitioner raised three fold arguments.

He argued that the complainant-Shaukat, PW-1 and his father Yakub, PW-5

made discrepant statements in the Court and those statements cannot be

made the basis for the conviction of the accused; there is delay in lodging

the FIR, which is fatal as no reasonable explanation has been offered; from

the statement of the doctor witness, it appears that he had already examined

the victim even before the incident itself, which itself makes the

prosecution case highly doubtful. He also tried to argue that the mother of

the accused had made a complaint against the family of the victim and

there was previous enmity between them and it was on account of that

enmity that false case was registered against the accused. He prayed that

the revision be accepted. The judgments of the trial court and the Appellate
Criminal Revision No. 1900 of 2003 -4-

Court be set aside and the accused be acquitted.

On the other hand, it has been submitted by Assistant

Advocate General, Haryana that all these points were duly discussed by the

trial court as well as by the Appellate Court but did not find any favour with

them. The judgments of those courts do not suffer from any illegality nor

can be termed as wrong. There is no ground for interfering with the

findings so recorded, while exercising the revisional jurisdiction.

It is a case where the occurrence was not witnessed by any one

and only corroborative evidence was produced in support of the statement

of the complainant, who is a victim of sodomy. According to him, he was

alone when this unnatural act was committed with him by the accused. His

statement stands at the same footing as that of an injured. There is no rule

of law that the testimony of such like victims must be corroborated by some

other witness. Once his testimony is found to be trust worthy and reliable,

conviction of the accused can be recorded on the basis thereof. According

to him, he had narrated the occurrence to his father-Yakub after he regained

conscious. Whether their statements can be scrutinized while disposing of

this revision, in the manner submitted by the learned counsel for the

petitioner?

It is well settled legal proposition that appellate jurisdiction is

co-extensive with the original court’s jurisdiction for appraisal and

appreciation of evidence and while recording findings of facts, an

Appellate Court is free to reach at its own conclusion on the evidence

untrammeled by any finding entered by the trail court. Revisional powers,

on the other hand, belong to supervisory jurisdiction of a superior court.

While exercising revisional powers, the court is confined to the illegality
Criminal Revision No. 1900 of 2003 -5-

or impropriety of the findings and also whether the subordinate court has

kept itself within the points of jurisdiction including the question whether

the court has failed to exercise the jurisdiction vested in it. Though the

difference between the jurisdiction is subtle, it is quite real and has now

become well recognised in legal provinces. It was held by the Apex Court

in Vimal Singh vs. Khuman Singh 1998(4) R CR (Criminal)423 that

High Court is not authorised to re-appreciate evidence in exercise of

revisional jurisdiction. Therefore, re-appreciation of evidence while

exercising the revisional jurisdiction is not permissible. This Court is

only required to see if any such illegality has been committed by the trial

court or the appellate court or the propriety requires that such a conviction

or sentence, should not have been recorded.

Admittedly, there was some delay in lodging the FIR but that

itself cannot be made the ground for the acquittal of the accused nor the

same can be held to be fatal. There is no universal rule that delay in lodging

the FIR, entails the acquittal of the accused in every case. It is to be seen

if any plausible explanation has been offered or not. Moreover, the nature

of the offence and the circumstances of the case are also to be seen while

appreciating such like argument. It was a case where a boy of tender age

was subjected to unnatural carnal intercourse. His family was bound to

make some deliberations before making the occurrence public by reporting

the matter to the police. There is nothing on record for concluding that

the intervening period has been utilised for making deliberations or

consultations for lodging false FIR against the accused. It is now well

settled that where the prosecution case rests on direct evidence and the

same is found to be trustworthy and reliable, the delay, if any, in lodging
Criminal Revision No. 1900 of 2003 -6-

the FIR pales into insignificance. Why a boy of such a tender age would

come out with such a damaging version which is to remain a scar for the

rest of his life. No doubt, the doctor witness has said before the Court that

he had medically examined the victim on 14.9.1998 but a perusal of the

MLR shows that such an examination was done on 15.9.1996. It appears

that it is the a.m./p.m., which has created the real problem. There is nothing

on the record for concluding that the victim had already been examined

before the occurrence itself. The medical evidence is very important in this

case and goes a long way to corroborate the testimony of the victim.

During his medical examination, it was found by the doctor that there were

signs of penetration in the form of abrasion in the anal canal. There is

nothing in the statement of the complainant for inferring that such

abrasions were self-suffered. The medical evidence fully corroborate the

testimony of the victim.

Even if it is assumed that there was previous enmity between

the family of the victim and the accused, even then the same cannot be said

to be a ground for concluding that false case has been registered against the

accused. The motive cannot be the sole criteria for determining the guilt or

innocence of the accused. It is only in cases based on circumstantial

evidence that the motive occupies an important seat. But when the case is

based on direct evidence, then motive becomes meaningless. Moreover, the

motive is a double edged weapon. If, on the one hand, it can be said that

said enmity was the motive on the part of the victim’s family to falsely

implicate the accused, then at the same time it can also be said that the

accused had a motive to subject the victim to sodomy. In view of the

cogent and convincing oral evidence, which has been fully corroborated by
Criminal Revision No. 1900 of 2003 -7-

the medical evidence, the enmity alone cannot be said to be the factor for

false implication of the accused.

From the above discussion, it is concluded that there is no merit

in this revision and the same is hereby dismissed. The conviction and

sentence of the accused is upheld.

If the petitioner is on bail, he shall be taken into custody to

undergo the remaining part of his sentence.

(GURDEV SINGH)
JUDGE

December 04, 2009
PARAMJIT