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
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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
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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
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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
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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
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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
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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