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2012 DIGILAW 308 (GAU)

Jagannath Das v. State of Assam

2012-03-05

I.A.ANSARI

body2012
1. Heard Mr. N.H. Rajbarbhuyan, learned counsel, for the accused-appellant, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 2. This appeal is directed against the order, dated 31.8.2004, passed, in Sessions Case No. 175(N)/2002, whereby the learned Additional Sessions Judge, FTC, Sankardev Nagar, Hojai, has, while acquitting the accused-appellant of the charge, which had been framed against the accused under section 376(1), IPC, convicted him of an offence under section 417, IPC and sentenced him to undergo rigorous imprisonment for three months and pay fine of Rs.2,000 and, in default of payment of fine, suffer rigorous imprisonment for a further period of one month with further direction that the fine shall, if deposited, be given to the victim as compensation. 3. At the time of hearing of this appeal, this court has noticed that in her evidence, the prosecutrix, who had appeared as PW1, deposed that the accused was a visitor to their house and one day, while she was alone at home, the accused forcibly had sexual intercourse with her and when she told the accused that she would inform the inmates of her house, accused promised that he would marry her and, thereafter, she allowed the accused, for about one year, to have sexual intercourse with her. 4. The evidence given by PW1 to the effect that the accused had sexual intercourse with her forcibly, that is, against her will and without her consent, was not disputed by the defence in the cross-examination of PW1. It was not even been suggested to PW1 by the defence that the accused had not had, forcibly or without consent of PW1, sexual intercourse with her. In the face of such unchallenged and undisputed evidence of PW1, there could not have been, unless and until shown otherwise, a finding of acquittal in favour of the accused-appellant. This finding, in the face of the said unchallenged evidence of the prosecutrix, is, therefore, prima facie not tenable in law. 5. Even if the State has not come in appeal against the acquittal of the accused in respect of the charge, which had been framed against him under section 376(1), IPC, this court is duty-bound, as a court, exercising revisional jurisdiction, to ensure that the proceedings of a court, subordinate to this court, are commenced and concluded in accordance with law. Even if the State has not come in appeal against the acquittal of the accused in respect of the charge, which had been framed against him under section 376(1), IPC, this court is duty-bound, as a court, exercising revisional jurisdiction, to ensure that the proceedings of a court, subordinate to this court, are commenced and concluded in accordance with law. When a court reaches a finding ignoring a material piece of evidence or reaches a finding by taking into account a fact, which was not admissible in evidence, its finding cannot be sustained and must be treated as perverse. 6. Section 401, Cr.PC read with section 397, Cr.PC empowers the High Court to exercise revisional jurisdiction suo motu and while exercising such jurisdiction, section 397, Cr.PC allows the High Court to examine the record of any proceeding for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. Thus, as indicated hereinbefore, this court is duty bound, as a court exercising revisional jurisdiction, that a finding, which is incorrect, be not allowed to remain good on record. The duty, so imposed by the statute, cannot be avoided from being exercised by the High Court on the ground that the matter has come to the notice of the High Court from an appeal, which has been preferred by the accused against his conviction in respect of an offence other than one, which he has been acquitted of. 7. Coupled with the above, section 483, Cr.PC makes it a duty of the High Court to exercise its power of superintendence over the courts of Judicial Magistrate, subordinate to it, so as to ensure that there is an expeditious and proper disposal of cases by such courts. A proper disposal would, obviously, mean disposal in accordance with law. This court is, thus, duty bound, under section 483, Cr.PC, to interfere with a finding, which is not correct and cannot be allowed to stand good on record. 8. A proper disposal would, obviously, mean disposal in accordance with law. This court is, thus, duty bound, under section 483, Cr.PC, to interfere with a finding, which is not correct and cannot be allowed to stand good on record. 8. Because of what have been discussed and pointed out above, it is necessary, in the interest of justice, that a notice be issued to the convicted person, namely, Jagannath Das, i.e., the appellant in the present appeal, to show cause, if any, as to why the finding of acquittal, recorded by the learned trial court in respect of the charge framed against him under section 376(1), IPC, be not set aside and the whole proceeding be not remanded to the learned trial court with direction to take into account the unchallenged evidence of the prosecutrix as indicated above and, then, render its finding in accordance with law. 9. Registry is, therefore, directed to register a revision suo motu against the judgment and order, dated 31.8.2004, aforementioned and issue notice to the convicted person, namely, Jagannath Das, i.e., the appellant in the present appeal, making the same returnable on 25.4.2012. _____________