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2015 DIGILAW 2972 (ALL)

Dinna v. State of U. P.

2015-09-17

BHARAT BHUSHAN

body2015
JUDGMENT Bharat Bhushan, J. Heard learned counsel for the revisionist and learned AGA and perused the material placed on record. This criminal revision is directed against the judgement and order dated 1.5.2014 passed by learned Addl. Sessions Judge, Court No. 3, District Shahjahanpur in Criminal Appeal No. 60 of 2013 (Dinna Vs State of UP and others) by which the conviction and sentence dated 29.5.2013 passed by the Chief Judicial Magistrate, Shahjahanpur in Case No. 4867 of 2012 arising out of Case Crime No. 664 of 2012, under Section 377 IPC whereby the revisionist was convicted and sentenced under Section 377 IPC and sentenced to under go rigorous imprisonment for seven years along with fine of Rs. 5000/- with default stipulation, was affirmed and the criminal appeal was dismissed. 2. As per prosecution version, minor son of informant while he was on the way to defecate on 27.9.2012, was caught and forcefully taken away by the revisionist in a sugarcane field where unnatural carnal intercourse was committed upon him by the revisionist. The report of the incident was lodged by the father of the victim on 4.10.2012 vide Case Crime No. 664 of 2012, under Section 377 IPC. The matter was investigated and charge sheet was submitted against the accused revisionist. The revisionist was charged under Section 377 IPC and he denied the charge and claimed trial. 3. As many as six witnesses were produced by the prosecution namely P.W.-1 informant Munna Lal, P.W.-2 Guddu, P.W.-3 Mewaram, P.W.-4 Dr. Himanshu Shekhar, P.W.-5 S.I. Yashpal Singh and P.W.-6 C.P. 57 Vijendra Singh. Accused was examined u/s 313 Cr.P.C. and stated that he has been falsely implicated by the prosecution but he did not adduce any evidence in defence. 4. Learned Magistrate after considering the evidence on record came to the conclusion that the prosecution had been able to establish its case beyond reasonable doubt and consequently, the Trial Judge convicted the the revisionist as aforesaid vide order dated 29.5.2013. Aggrieved by the said judgement, accused preferred Criminal Appeal in the court of Addl. District and Sessions Judge, Court No. 3, Shahjahanpur which was dismissed and the order of learned Magistrate was affirmed vide order dated 1.5.2014. It is this order, which is subject matter of challenge before this Court. 5. Aggrieved by the said judgement, accused preferred Criminal Appeal in the court of Addl. District and Sessions Judge, Court No. 3, Shahjahanpur which was dismissed and the order of learned Magistrate was affirmed vide order dated 1.5.2014. It is this order, which is subject matter of challenge before this Court. 5. It is contended by learned counsel for the revisionist that both the courts below have not properly appreciated the evidence on record and have passed the impugned orders without application of mind. He further submitted that the revisionist had been found guilty in the trial even though there was no reliable evidence against him. The appellate court has not carefully scrutinized evidence, instead mechanically up-held the conviction and sentence of the trial court. 6. It is contended by learned counsel for the revisionist that the accused revisionist was juvenile at the time of arrest and has submitted that his claim for juvenility has not been considered by the trial court. 7. I have gone through the order of the trial court and I found that the matter of juvenility of accused revisionist has already been decided by the Juvenile Justice Board. The juvenility was claimed during the course of trial and the matter was inquired by the Juvenile Justice Board in detail and the Juvenile Justice Board has held that the accused is around 20 years of age and accordingly sent back the file to the regular trial court for adjudication and therefore the argument of learned counsel for the revisionist with regard to juvenility is misconceived and cannot be accepted. 8. It is further submitted by leanred counsel for the revisionist that the FIR was lodged with considerable delay from the date of incident and that by itself is sufficient to create doubt about the prosecution story. 9. I am afraid that this argument of revisionist is also not sustainable in view of the fact that the FIR is not substantive peace of evidence in a criminal trial. In any case, explanation to the delay in lodging of the FIR has sufficiently been given by the informant of the case (Munna Lal) P.W.-1, who has categorically stated in his deposition that he went to lodge the report of the incident on the same day at the concerned police station but the police refused to lodged the FIR saying that first he should get the victim medically examined. Thereafter the report was lodged with considerably delay. This explanation is reasonable considering the known apathy of police in such matters. 10. Learned counsel for the revisionist has also disputed the presence of P.W.-1 and P.W.-2 at the spot. This aspect has been discussed by the trial court in detail and thereafter the court below concluded that there is no dispute about the presence of these witnesses on spot. In any case the victim had infact delineated the entire prosecution story in detail before the trial court and there is no reason to discard the factum of incident merely because there are some minor discrepancies between the testimonies of witnesses of facts and on this ground alone the testimonies of prosecution witnesses cannot be completely ignored. It is also pertinent to point out that the informant and victim was not having inimical terms with the accused revisionist. Medical evidence is on record, which is in consonance with the oral testimonies. Dr. Himanshu Shekhar, P.W.-4 found several abrasions on the anus of the victim and also opined that these abrasions could have been caused by unnatural sexual acts. 11. To the contrary, learned AGA has defended the impugned orders. 12. I have gone through the impugned judgment and order and also other materials on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence. 13. As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely. 14. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon'ble Supreme Court in "State of Kerala Vs. 14. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon'ble Supreme Court in "State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri", AIR 1999 SC 981 : 1999 (38) ACC 453 (SC), has held that the High Court while hearing revisions does not work as a Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done. 15. Hon'ble the Apex Court in "Jagannath Chaudhary Vs. Ramayan Singh", AIR 2002 SC 2229 : 2002 (Suppl.) ACC 136 (SC), has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In "Munna Devi Vs. State of Rajasthan and others" AIR 2002 SC 107 : 2002 (44) ACC 137 (SC), it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. 16. Hon'ble the Apex Court in "State Of Karnataka vs. Appa Balu Ingale and others", AIR 1993 SC 1126 , has held that generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or if same are not perverse in any manner. 17. Coming back to the facts of the instant case, it is apparent that both the courts were satisfied by the evidence of prosecution. It is contended by the learned counsel for the revisionist that no independent witness was produced by the prosecution and this has vitiated the trial. I am afraid that there is no requirement of independent witnesses to be examined in each case. So far as the facts of the present case are concerned, the testimonies of the witnesses of facts supported with medical evidence are sufficient to be taken into consideration independently for the simple reason that no claim of previous enmity was proved to create suspicion about their evidence. So far as the facts of the present case are concerned, the testimonies of the witnesses of facts supported with medical evidence are sufficient to be taken into consideration independently for the simple reason that no claim of previous enmity was proved to create suspicion about their evidence. If the evidence produced on the record is otherwise trustworthy, it cannot be discarded merely on the ground that it has not been corroborated by any other independent witnesses. 18. I do not find any glaring mistake or sufficient ground to interfere with the findings of both the learned Courts below. Learned Courts below have considered all the evidence on record and has not committed any mistake of fact or of law. I do not find any error of law or perversity in the impugned Judgments. 19. Learned counsel for the revisionists has submitted that there is no previous criminal history of the revisionist and the revisionist is in jail for a considerable period.27.6.2014 . He has further contended that the accused is about 22 years of age and he has suffered the agony of trial and pendency of appeal for a long time and hence no useful purpose will be served in keeping the accused-revisionist in imprisonment for long period of 7 years and therefore, a lenient view may be taken. Learned counsel for the revisionist has submitted that this aspect of matter has not been considered either by the trial court or appellate court. The revisionist has been sentenced to seven years rigorous imprisonment and a fine of Rs.5000/- for the offences punishable under Section 377 IPC with default stipulation. 20. In the circumstances, the conviction of the applicants recorded by the Courts below under Section 377 of the IPC, is hereby affirmed. However, taking into consideration all the aspects of the matter the sentence of the revisionist is modified as under: 21. The revisionist is sentenced to three years rigorous imprisonment under Section 377 IPC and a fine of Rs. 25,000/- is also imposed on him and in default the revisionist shall further undergo simple imprisonment of one year. Out of the amount of fine, Rs. 20,000/- shall be paid to the victim of the case through his legal guardian. The period of imprisonment undergone during the investigation and trial by the revisionist shall be set off against the awarded sentence. 22. Accordingly, the criminal revision is partly allowed. Out of the amount of fine, Rs. 20,000/- shall be paid to the victim of the case through his legal guardian. The period of imprisonment undergone during the investigation and trial by the revisionist shall be set off against the awarded sentence. 22. Accordingly, the criminal revision is partly allowed. Office is directed to communicate this order to the trial Court for compliance at an early date. A compliance report shall be sent to this court after compliance of this order without any delay.