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