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2018 DIGILAW 164 (JK)

FEROZ AHMED KHAN v. STATE THROUGH AAG

2018-03-16

SANJEEV KUMAR

body2018
JUDGMENT : Sanjeev Kumar, J. Pw-1 Manzoor Ahmed Khan lodges a written complaint on 14.5.2010 with Police Post, Hajam that his son Mr. X ( name withheld ) aged 8 years was taken by the petitioner to his house where he committed an unnatural act with him. It also alleges in the complaint that due to unnatural act committed by the petitioner, the blood is oozing from the anus of his son and that his son is also feeling pain. Based upon the aforesaid complaint, the Police Station, Sumbal registers a formal FIR and investigation is set in motion. The investigation is conducted by PW-6 ASI, Abdul Aziz. During the investigation, the Investigating Officer inspects the scene of crime , prepares the site plan , gets the victim medically examined through PW-5 Dr. Ishtiyaq Ahmed Naikoo and also records the statement of prosecution witnesses who claim to be acquainted with the facts of the case. The accused is also taken into custody on 26. 5. 2002 and is subsequently released on bail by the learned Chief Judicial Magistrate, Sopore on 10.6.2002. 2. The Investigating Officer concludes that the involvement of the petitioner in commission of crime punishable under Section 377 Cr PC is prima facie established and, therefore, sends the accused to face the trial before the competent Court of law. This is how, the challan is presented in the Court of Judicial Magistrate Ist Class, Sumbal on 9. 10. 2002. 3. The Court of Judicial Magistrate Ist Class, Sumbal ((hereinafter referred to as the Trial Court ) frames the charges against the petitioner for commission of offence under Section 377 Cr PC on 6. 11. 2003. Since the petitioner pleads not guilty and claims to be tried, the prosecution is directed to lead the evidence to prove its case. With a view to prove its case, the prosecution examines five witnesses i. e. PW-1 Manzoor Ahmed Khan (father of the victim), PW-2 (victim himself ), PW-3 Mst Shakeela Begum (mother of the victim), PW-4 Ghulam Mohi-ud- Din (a neighbourer) and PW-5 Dr. Ishtiyaq Ahmed Naikoo (expert witness). On the closure of prosecution evidence, the incriminating circumstances appearing against the petitioner are put to him and his statement under Section 342 Cr PC is recorded. Ishtiyaq Ahmed Naikoo (expert witness). On the closure of prosecution evidence, the incriminating circumstances appearing against the petitioner are put to him and his statement under Section 342 Cr PC is recorded. The petitioner in his statement counters the incriminating circumstances by submitting that all the prosecution witnesses recorded, are relatives of the victim and therefore, they have made wrong statements against him. He, however, chooses to lead evidence in defence. The petitioner examines the defence witnesses i. e. DW-1 Ghulam Nabi Hajam and DW-2 Ghulam Ahmed Khan. 4. The learned Trial Court after meticulous examination of the evidence led by the prosecution and considering the defence version brought on record in the shape of statements of defence witnesses PW-1 and PW-2 holds the petitioner guilty of commission of crime under Section 377 Cr PC and convicts him accordingly. The petitioner is awarded the sentence of simple imprisonment for three years along with fine of Rs. 5,000/- payable to the victim, providing further that in case of default in the payment of fine, the petitioner shall further undergo simple imprisonment for three months. 5. The petitioner assails this order before the Principal Sessions Judge, Bandipora by way of criminal appeal. The appellate Court concurs with the finding of fact recorded by the Trial Court and, therefore, upholds the Trial Court judgment vide its order dated 24.6.2017. It is against this order of the appellate Court, the petitioner is before this Court in the revisional jurisdiction. 6. I have heard the learned counsel for the petitioner as well as the counsel for the State. 7. Before proceeding to consider the rival contentions, it would be worthwhile to take note of the scope of interference with the concurrent finding of fact recorded by two Courts, in exercise of revisional jurisdiction by this Court. In this regard, it would be appropriate to reproduce the relevant extract of section 439 of the Code of Criminal Procedure, which reads as under : Section 439 High Court s powers of revision: 1. In this regard, it would be appropriate to reproduce the relevant extract of section 439 of the Code of Criminal Procedure, which reads as under : Section 439 High Court s powers of revision: 1. In the case of any proceedings the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, may in its discretion, exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 429. 2. No order under this section shall be made to the prejudice of the accused unless he has had an opportunity if being heard either personally or by pleader in his own defence. 3. Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Judicial Magistrate of the first class. 4. Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. 5. Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. 6. Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) if showing cause why his sentence should not be enhanced shall, in showing cause be entitled also to show cause against his conviction. 8. From the perusal of Section 439 CrPC reproduced above, it is abundantly clear that it is virtually extension of power of revision vested in the High Court under Section 435 CrPC. 8. From the perusal of Section 439 CrPC reproduced above, it is abundantly clear that it is virtually extension of power of revision vested in the High Court under Section 435 CrPC. The section provides that in exercise of revisional jurisdiction , the High Court may in its discretion, exercise any of the power conferring on a Court of appeal by sections 423,426,427 and 428 or on a Court by section 388 CrPC and while exercising such powers, may enhance the sentence. The discretion vested in the High Court to exercise the powers conferred on a Court of appeal, however, cannot be construed to mean that the High Court is empowered to appreciate or re appreciate the evidence and sit in appeal against the concurrent finding of fact recorded by the Trial Court and the appellate Court subordinate to High Court . The powers which this Court, in its revisional jurisdiction, can exercise are with respect to the enhancement of sentence. To say that the High Court in its revisional jurisdiction can act as Court of appeal and can even re- appreciate the evidence, would be doing violence to the express provisions of section 435 read with section 439 CrPC and would be abhorrent to the very concept of revisional jurisdiction of Courts. The Supreme Court in the case of Bansi Lal and others Vs. Laxman Singh, 1986 AIR SC 172 held as under : It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power, it should be exercised sparingly and with great care and caution. The mere circumstances that a finding of fact recorded by the trial Court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a retrial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope. 9. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope. 9. That in the aforesaid case, it was the order of the acquittal which was the subject matter of challenge in the revision before the High Court. Similarly in the case of Duli Chand Vs. Delhi Administration, (1975) AIR SC 1960, the Supreme Court held thus : The jurisdiction of the High Court in a criminal revision application is severely a restricted and it cannot embark upon a re-appreciation of evidence. It would also be appropriate to refer to the observation made by the Supreme Court in the case of State of Kerla Vs. Puttumana Illath Jathaved Namboodiri, (1999) 2 SCC 452 which are reproduced as under : In its revisional jurisdiction, the High Court can call for an examine the record and any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order, In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 10. In the aforesaid case, the High Court was confronted with an order of conviction in its revisional jurisdiction and the Hon’ble Supreme Court found the High Court having exceeded its jurisdiction in interfering with the conviction by re-appreciating oral evidence . 11. In the backdrop of legal position adumbrated hereinabove, and bearing in mind that the revisional jurisdiction of this Court is well circumscribed, the judgment impugned may be examined. 11. In the backdrop of legal position adumbrated hereinabove, and bearing in mind that the revisional jurisdiction of this Court is well circumscribed, the judgment impugned may be examined. In a case of sexual assault when there is no eye witness account, the testimony of the victim is of a paramount importance and if the testimony of victim is trust worthy, truthful and inspiring confidence of the Court, the conviction can be based solely on such testimony and if such testimony of the victim is also corroborated by medical evidence, then the Court can unhesitantly rest conviction on such testimony. The victim, in his statement recorded before the Trial Court has clearly stated that he knew the accused. He has categorically stated that while he was at home, he was called by the petitioner and taken in a room of second storey of his house. He was asked to remove his clothes. On his refusal, he was intimidated and forced to remove his clothes. He has further stated that he removed his trousers and the petitioner made him to sit down. The petitioner also removed his trousers and committed unnatural act with him. He suffered pain in his anus but the petitioner continued unnatural act for long. Blood oozed from his anus. He has also stated that he was told by the petitioner not to disclose this act to anyone else. The victim reported the matter to his mother and then he alongwith his parents, reported the matter to the police. In his cross examination, the victim has clearly stated that when he was called by the petitioner, he was alone playing in his home. However, he did not inform his parents that he was being called by the petitioner. He has also stated that the family members of the petitioner were also present at home. He claims to have raised hue and cry but the family members of the petitioner did not hear his cry. He even tried to run away but the petitioner closed the door of the room and had bolted it from inside. 12. Learned counsel for the petitioner tried to point out discrepancies in the statement of the victim. He submitted that had the offence been committed in the house of the petitioner, then family members of the petitioner would have heard the cries of the victim. 12. Learned counsel for the petitioner tried to point out discrepancies in the statement of the victim. He submitted that had the offence been committed in the house of the petitioner, then family members of the petitioner would have heard the cries of the victim. He, therefore, submits that the petitioner would not have ventured to commit the crime alleged against him in presence of his family members. But this assertion of the learned counsel is belied by the statement of the victim given during his cross examination. From his statement, it is evident that the room where the offence was allegedly committed was on the second storey of the house and the petitioner had bolted the door of the room from inside. In such situation, the family members of the petitioner could not have been aware of what the petitioner had been doing in a room situated in the second storey of the house. Learned counsel for the petitioner sought to impeach the credibility of the victim by submitting that the victim in his statement has stated that after the crime was committed by the petitioner, he came back home and narrated the matter; whereas in the statement of mother of the victim, it has come that on the relevant day, she was at her parental house. It may be noted that that the aforesaid witness has been declared hostile by the prosecution. Referring to the statement of PW-1 Manzoor Ahmed Khan, the father of the victim, learned counsel for the petitioner submits that the statement of the victim cannot be believed for the reason that the same is not even in consonance with the statement of his father. 13. I have gone through the statement of PW-1 Manzoor Ahmed Khan wherein he has stated that when he reached home after being informed by his daughter about the unnatural act committed by the petitioner, his wife and the victim had already reached the Police Station and he also went to the Police Station i. e. Police Station, Hajam. I do not find any serious contradictions in the statement of PW-1 Manzoor Ahmed Khan and the victim. The victim in his statement too has stated that he alongwith his parents had gone to the Police Station to lodge report. I do not find any serious contradictions in the statement of PW-1 Manzoor Ahmed Khan and the victim. The victim in his statement too has stated that he alongwith his parents had gone to the Police Station to lodge report. It may be stated that the contradictions aforementioned and few others pointed out by the learned counsel for the petitioner are not such contradictions which can be said to be fatal to the prosecution. The occurrence is of 14.5.2002 and the statement of witnesses have been recorded by the Court almost after two years and therefore, there are bound to be minor contradictions and that cannot be the basis to disbelieve the evidence. The victim at the time of occurrence was of 8 years of old and of about 11 years when his statement was recorded in the Court. To expect the details of occurrence in complete precision from such witness is totally unfair. The victim has given the details of the occurrence and the manner in which he was subjected to carnal intercourse by the petitioner. His statement is fully corroborated by the medical evidence. PW-5 Dr. Ishtiyaq Ahmed Naikoo who conducted the medical examination of the victim has stated that he, on examination, found that anal intercourse had been done to the victim. He also states that he found injury on the anus of the victim and also saw blood oozing from there. He was subjected to cross examination by the defence but nothing which could discredit the prosecution story could be elicited from him. Learned counsel for the petitioner tried to impeach the statement of the doctor on the ground that he failed to rule out that the bleeding in the anus of the victim could have been due to other reason, though he has admitted in his statement that bleeding was possible due to piles. He further submits that the Doctor PW-5 had referred the injured to SMHS Hospital for some tests but the same were not performed there to find out the presence of spermatozoon in and around the anus of the victim. 14. I have once again gone through the statement of PW- 5 Dr. He further submits that the Doctor PW-5 had referred the injured to SMHS Hospital for some tests but the same were not performed there to find out the presence of spermatozoon in and around the anus of the victim. 14. I have once again gone through the statement of PW- 5 Dr. Ishtiyaq Ahmed Naikoor wherein he has clearly stated that though he had advised tests to be undergone by the victim at SMHS Hospital but the aforesaid tests had nothing to do with the unnatural act perpetrated on victim and the tests advised were only to know about the gravity of the injury. The expert witness aforesaid is very categoric in his statement that going by the nature of the injury inflicted, the victim had been subjected to unnatural act. The witness has been subjected to scorching cross examination but there is nothing elicited by the defence to impeach his credibility. The Doctor besides being an expert witness, is also an independent witness in the case and therefore, his testimony cannot be brushed aside on the basis of minor contradictions pointed out by the learned counsel for the petitioner. The learned Trial Court as well as the Appellate Court have appreciated the evidence in right perspective and have returned the finding of fact which are concurred. Needless to reiterate that the law is well settled that the sole testimony of victim of sexual assault is sufficient to establish the offence in the absence of corroborative evidence. Once it is demonstrated that the statement of victim of sexual assault is truthful, trustworthy and inspiring confidence of the Court, there is no difficulty in basing the conviction on such sole testimony. In the instant case, not only the statement of victim is truthful, trustworthy and inspiring confidence of the Court but the same is fully corroborated by the expert evidence i. e. the medical evidence. That being so, both the Courts below rightly found the petitioner guilty of committing offence punishable under section 377 Ranbir Penal code and brushing aside minor contradictions and inconsistency in the statement of the victim and other witnesses examined by the prosecution. What was observed by the Supreme Court in the case of Narinder Kumar Vs. State (NCT of Delhi), 2012 7 SCC 176. Paragraph Nos. 20 and 21 of the same are reproduced as under : 20. What was observed by the Supreme Court in the case of Narinder Kumar Vs. State (NCT of Delhi), 2012 7 SCC 176. Paragraph Nos. 20 and 21 of the same are reproduced as under : 20. It is settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the Court as such, no conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance in not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probability having been shown to exist in view of the subject matter being a criminal charge . However, if the Court finds it difficult to accept the versio of the prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial ) which may lend assurance to her testimony. 15. Learned counsel for the petitioner has relied upon the judgment of Supreme Court in the case of C. K. Raveendran Vs State of Kerla, (2000) 1 SCC 225 , Magan Behari Lal Vs The State of Punjab, (1977) 2 SCC 210 and Mohan Singh Vs State of Punjab, (1975) 4 SCC 254 to canvas that the Supreme Court has laid down set parameters to appreciate the expert evidence which parameters were ignored by both the Courts below and the testimony of the medical expert was incorrectly relied upon. He has also referred the judgment of the Supreme Court as to how the testimony of a child witness is to be appreciated. There is no quarrel on the proposition propounded in the aforesaid cases. 16. I have gone through the judgments cited by the learned counsel for the petitioner at bar and do not find that there is any error committed by the trial Court or the Ist appellate Court in appreciating the evidence of the expert witness i. e. PW-5 Dr. Ishtiyaq Ahmed Naikoo or that of victim. 16. I have gone through the judgments cited by the learned counsel for the petitioner at bar and do not find that there is any error committed by the trial Court or the Ist appellate Court in appreciating the evidence of the expert witness i. e. PW-5 Dr. Ishtiyaq Ahmed Naikoo or that of victim. 17. Lastly, the learned counsel for the petitioner submitted that non examination of the Investigating Officer in the instant case was fatal to the prosecution but the aforesaid aspect has not been considered by both the Courts below and therefore, the judgment impugned is vitiated. 18. It is well settled that the non examination of the Investigating Officer in all cases is not fatal. The role of the Investigating Officer is to conduct the investigation and present the challan before the competent authority of law. In case of ambiguity in the statement of witness with regard to timing of registration of FIR, the place or occurrence, the timing of occurrence etc, the examination of the Investigating Officer may become necessary. To say that in all cases, non examination of the Investigating Officer is fatal to the prosecution, is not correct. The learned counsel for the petitioner placed reliance upon the judgment of Delhi High Court rendered in case Bhim Sain Vs. The State (N. C. T. of Delhi), (2001) 60 DRJ 489 . The aforesaid judgment, cannot be said to be authority on the proposition that non examination of Investigating Officer in all cases would be fatal to the prosecution and vitiates the whole trial. 19. I am not impressed by the mitigating circumstances pointed out by the learned counsel for the petitioner for reduction of the sentence. The victim in the instant case was minor who was subjected to inhuman act by the petitioner taking the benefit of his tender age. Such incidents severely affect the psyche of a child and hounds him for the rest of life. Perpetrator of such crime, in my humble opinion, deserves no leniency. 20. In the instant case, both the Courts below have not found any ambiguity, be it with regard to the place of occurrence, the timing of occurrence or the timing of lodging of the FIR etc. Perpetrator of such crime, in my humble opinion, deserves no leniency. 20. In the instant case, both the Courts below have not found any ambiguity, be it with regard to the place of occurrence, the timing of occurrence or the timing of lodging of the FIR etc. As such, non examination of the Investigating officer in this case where the offence had been demonstratively proved to have been committed by the petitioner, cannot be held to be fatal to the prosecution. Having held so, this Court does not find any infirmity in the judgment impugned passed by the Principal Sessions Judge, Bandipora upholding the judgment of the Trial Court. 21. For the aforesaid reasons, this revision is found to be without any merit and is accordingly dismissed.