{"id":53101,"date":"2009-12-04T00:00:00","date_gmt":"2009-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/juber-vs-state-of-haryana-on-4-december-2009"},"modified":"2018-07-17T04:37:03","modified_gmt":"2018-07-16T23:07:03","slug":"juber-vs-state-of-haryana-on-4-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/juber-vs-state-of-haryana-on-4-december-2009","title":{"rendered":"Juber vs State Of Haryana on 4 December, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Juber vs State Of Haryana on 4 December, 2009<\/div>\n
Criminal Revision No. 1900 of 2003                              -1-\n\n\n        In the High Court of Punjab and Haryana at Chandigarh\n\n\n                              Criminal Revision No. 1900 of 2003\n                              Date of Decision:December 04, 2009\n\n\nJuber\n\n\n                                           ---petitioner\n\n\n                   versus\n\n\nState of Haryana\n\n\n                                           ---Respondent\n\n\nCoram:       HONBLE MR. JUSTICE GURDEV SINGH\n\n                 ***\n\nPresent:     Mr. Mukesh Yadav, Advocate,\n             for the petitioner\n\n             Mr.Raja Sharma, Asstt. Advocate General, Haryana\n\n                   ***\n\nGURDEV SINGH, J.\n<\/pre>\n
             This revision by Juber-accused -petitioner has been preferred<\/p>\n
against    judgment dated 28.8.2003 passed by Shri A.K.Singh Panwar,<\/p>\n
Additional Sessions Judge, Gurgaon, vide which he dismissed the appeal<\/p>\n
filed by the accused against the judgment dated 20.8.1999 passed by<\/p>\n
Judicial Magistrate Ist Class, Nuh (Gurgaon), vide which he was convicted<\/p>\n
for the offence under Section 377 of the Indian Penal Code and was<\/p>\n
sentenced to undergo rigorous imprisonment for a period of three years<\/p>\n
and to pay a fine of Rs. 5000\/- and in default thereof to undergo simple
\n Criminal Revision No. 1900 of 2003                               -2-<\/span><\/p>\n
imprisonment for a period of six months.\n<\/p>\n
            The prosecution story, in brief, is that on 14.9.1996, the<\/p>\n
complainant – Shaukat, PW-1 was grazing the cattle at        a distance of<\/p>\n
about 1 Km from his native village Mohammadpur Dhani. The accused<\/p>\n
was also grazing his cattle at that place. He caught hold of Shaukat and<\/p>\n
threw him on the ground. After tying his hands with the help of safi (piece<\/p>\n
of cloth), he opened the trousers of the complainant and committed carnal<\/p>\n
intercourse with him against the order of nature. Though, the complainant<\/p>\n
cried for help still no one came to his rescue. As a result of this sodomy,<\/p>\n
he became unconscious. After regaining conscious, he came to his house<\/p>\n
and narrated the incident to his father Yakub Khan, PW-5. The matter was<\/p>\n
reported to the police and the FIR was registered against the accused. The<\/p>\n
complainant was    medically examined by Dr. P.K.Sharma, PW-7          who<\/p>\n
found injuries on his anal. The accused was arrested on 15.9.1996 and was<\/p>\n
medically examined by the        same doctor.      During the course of<\/p>\n
investigation, statements of the witnesses were      recorded    and after<\/p>\n
completion of the investigation, challan was put in before the Judicial<\/p>\n
Magistrate Ist Class for the trial of the accused, who found prima facie<\/p>\n
case against him and accordingly, charged him for the offence under<\/p>\n
Section 377 IPC. The accused pleaded not guilty and claimed trial. For<\/p>\n
proving guilt of the accused, prosecution examined Shaukat-complainant,<\/p>\n
PW-1, Constable Mukh Ram,          PW-2, Suban, PW-3, Yakub, PW-4,<\/p>\n
Constable Sher Mohammad, PW-5, S.I. Ram Chander, PW-6, Dr.<\/p>\n
P.K.Sharma, PW-7. After the prosecution closed its evidence, the accused<\/p>\n
was examined by the trial court and his statement was recorded under<\/p>\n
Section 313. Cr.P.C. The incriminating circumstances appearing against
\n Criminal Revision No. 1900 of 2003                                -3-<\/span><\/p>\n
him in the prosecution evidence were put to him. He denied the same and<\/p>\n
pleaded his false implication due to previous enmity. He was called upon<\/p>\n
to enter on his defence. In defence, he examined Lallu-DW-1 and Rattan<\/p>\n
Lal-DW-2.    After hearing    the Assistant Public Prosecutor and learned<\/p>\n
defence counsel for the accused and going through the records of the case,<\/p>\n
learned Judicial Magistrate Ist Class convicted and sentenced the accused as<\/p>\n
aforesaid. He preferred an appeal against his conviction and sentence which<\/p>\n
was dismissed vide impugned judgment dated 28.8.2003.<\/p>\n
             Notice of the revision was given to the State and the same has<\/p>\n
been contested    on its behalf by Sh. Raja Sharma, Assistant Advocate<\/p>\n
General, Haryana.\n<\/p>\n
             I have heard learned defence counsel for the petitioner and<\/p>\n
Assistant Advocate General, Haryana, and have carefully gone through the<\/p>\n
case file.\n<\/p>\n
             Learned counsel for the petitioner raised three fold arguments.<\/p>\n
He argued that the complainant-Shaukat, PW-1 and his father Yakub, PW-5<\/p>\n
made discrepant statements in the Court and those statements cannot be<\/p>\n
made the basis for the conviction of the accused; there is delay in lodging<\/p>\n
the FIR, which is fatal as no reasonable explanation has been offered; from<\/p>\n
the statement of the doctor witness, it appears that he had already examined<\/p>\n
the victim even before the       incident itself, which itself makes the<\/p>\n
prosecution case highly doubtful. He also tried to argue that the mother of<\/p>\n
the accused had made a complaint against the family of the victim and<\/p>\n
there was previous enmity between them and it was on account of that<\/p>\n
enmity that false case was registered against the accused. He prayed that<\/p>\n
the revision be accepted. The judgments of the trial court and the Appellate
\n Criminal Revision No. 1900 of 2003                                    -4-<\/span><\/p>\n
Court be set aside and the accused be acquitted.\n<\/p>\n
              On the other hand, it has been submitted by              Assistant<\/p>\n
Advocate General, Haryana that all these points were duly discussed by the<\/p>\n
trial court as well as by the Appellate Court but did not find any favour with<\/p>\n
them. The judgments of those courts do not suffer from any illegality nor<\/p>\n
can be termed as wrong. There is no ground for interfering with the<\/p>\n
findings so recorded, while exercising the revisional jurisdiction.<\/p>\n
              It is a case where the occurrence was not witnessed by any one<\/p>\n
and only corroborative evidence was produced in support of the statement<\/p>\n
of the complainant, who is a victim of sodomy. According to him, he was<\/p>\n
alone when this unnatural act was committed with him by the accused. His<\/p>\n
statement stands at the same footing as that of an injured. There is no rule<\/p>\n
of law that the testimony of such like victims must be corroborated by some<\/p>\n
other witness. Once his testimony is found to be trust worthy and reliable,<\/p>\n
conviction of the accused can be recorded on the basis thereof. According<\/p>\n
to him, he had narrated the occurrence to his father-Yakub after he regained<\/p>\n
conscious. Whether their statements can be scrutinized while disposing of<\/p>\n
this revision, in the manner submitted by the learned counsel for the<\/p>\n
petitioner?\n<\/p>\n
              It is well settled legal proposition that appellate jurisdiction is<\/p>\n
co-extensive with the original        court’s jurisdiction for appraisal and<\/p>\n
appreciation of evidence and         while recording findings of facts, an<\/p>\n
Appellate Court is free to reach at its own conclusion on the evidence<\/p>\n
untrammeled by any finding entered by the trail court. Revisional powers,<\/p>\n
on the other hand, belong to supervisory jurisdiction of a superior court.<\/p>\n
While exercising revisional powers, the court is confined to the illegality
\n Criminal Revision No. 1900 of 2003                                 -5-<\/span><\/p>\n
or impropriety of the findings and also whether the subordinate court has<\/p>\n
kept itself within the points of jurisdiction including the question whether<\/p>\n
the court has failed to exercise the jurisdiction vested in it. Though the<\/p>\n
difference between the jurisdiction is subtle, it is quite real and has now<\/p>\n
become well recognised in legal provinces. It was held by the Apex Court<\/p>\n
in   Vimal Singh vs. Khuman Singh<\/a> 1998(4) R CR (Criminal)423 that<\/p>\n
High Court is not authorised to re-appreciate evidence in exercise of<\/p>\n
revisional jurisdiction.   Therefore, re-appreciation of evidence while<\/p>\n
exercising the revisional jurisdiction is not permissible.     This Court is<\/p>\n
only required to see if any such illegality has been committed by the trial<\/p>\n
court or the appellate court or the propriety requires that such a conviction<\/p>\n
or sentence, should not have been recorded.\n<\/p>\n
            Admittedly, there was some delay in lodging the FIR but that<\/p>\n
itself cannot be made the ground for the acquittal of the accused nor the<\/p>\n
same can be held to be fatal. There is no universal rule that delay in lodging<\/p>\n
the FIR, entails the acquittal of the accused in every case. It is to be seen<\/p>\n
if any plausible explanation has been offered or not. Moreover, the nature<\/p>\n
of the offence and the circumstances of the case are also to be seen while<\/p>\n
appreciating such like argument. It was a case where a boy of tender age<\/p>\n
was subjected to unnatural carnal intercourse. His family was bound to<\/p>\n
make some deliberations before making the occurrence public by reporting<\/p>\n
the matter to the police. There is nothing on record      for concluding that<\/p>\n
the intervening period has been utilised for making          deliberations or<\/p>\n
consultations for lodging false FIR against the accused.       It is now well<\/p>\n
settled that where the prosecution case rests on direct evidence and the<\/p>\n
same is found to be trustworthy and reliable, the delay, if any, in lodging
\n Criminal Revision No. 1900 of 2003                                 -6-<\/span><\/p>\n
the FIR pales into insignificance. Why a boy of such a tender age would<\/p>\n
come out with such a damaging version which is to remain a scar for the<\/p>\n
rest of his life. No doubt, the doctor witness has said before the Court that<\/p>\n
he had medically examined the victim on 14.9.1998 but a perusal of the<\/p>\n
MLR shows that such an examination was done on 15.9.1996. It appears<\/p>\n
that it is the a.m.\/p.m., which has created the real problem. There is nothing<\/p>\n
on the record for concluding that the victim had already been examined<\/p>\n
before the occurrence itself. The medical evidence is very important in this<\/p>\n
case and   goes a long way to corroborate the testimony of the victim.<\/p>\n
During his medical examination, it was found by the doctor that there were<\/p>\n
signs of penetration in the form of abrasion in the anal canal. There is<\/p>\n
nothing    in the statement of the complainant       for inferring that such<\/p>\n
abrasions were self-suffered. The medical evidence fully corroborate the<\/p>\n
testimony of the victim.\n<\/p>\n
            Even if it is assumed that there was previous enmity between<\/p>\n
the family of the victim and the accused, even then the same cannot be said<\/p>\n
to be a ground for concluding that false case has been registered against the<\/p>\n
accused. The motive cannot be the sole criteria for determining the guilt or<\/p>\n
innocence of the accused. It is only in cases based on circumstantial<\/p>\n
evidence that the motive occupies an important seat.    But when the case is<\/p>\n
based on direct evidence, then motive becomes meaningless. Moreover, the<\/p>\n
motive is a double edged weapon. If, on the one hand, it can be said that<\/p>\n
said enmity was the motive on the part of the victim’s family to falsely<\/p>\n
implicate the accused, then at the same time it can also be said that the<\/p>\n
accused had a motive to subject the victim to sodomy. In view of the<\/p>\n
cogent and convincing oral evidence, which has been fully corroborated by
\n Criminal Revision No. 1900 of 2003                                 -7-<\/span><\/p>\n
the medical evidence, the enmity alone cannot be said to be the factor for<\/p>\n
false implication of the accused.\n<\/p>\n
            From the above discussion, it is concluded that there is no merit<\/p>\n
in this revision and the same is hereby dismissed. The conviction and<\/p>\n
sentence of the accused is upheld.\n<\/p>\n
            If the petitioner is on bail, he shall be taken into custody to<\/p>\n
undergo the remaining part of his sentence.\n<\/p>\n<\/p>\n
                                                (GURDEV SINGH)
\n                                                   JUDGE<\/p>\n
December 04, 2009
\nPARAMJIT\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-53101","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nJuber vs State Of Haryana on 4 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/juber-vs-state-of-haryana-on-4-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Juber vs State Of Haryana on 4 December, 2009 - 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