Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 216 (JK)

Subash Chander v. State of J&K

2023-05-31

MOHD.AKRAM CHOWDHARY

body2023
JUDGMENT : Mohd. Akram Chowdhary, J. 1. The appellant-Subash Chander had been convicted by the court of learned Judicial Magistrate, Akhnoor vide judgment dated 15.12.2001 for the commission of offences punishable under sections 354 and 456 RPC and sentenced to a simple imprisonment of one year for each of the offence besides payment of fine of Rs. 500/- under section 354 RPC and Rs. 500/- under section 456 RPC. The appellant aggrieved of his conviction recorded by the trial court preferred an appeal to the Sessions Court which came to be decided vide Appeal No. 3/2006 by the court of learned 3rd Additional Sessions Judge, Jammu vide judgment dated 29.03.2008, whereby the judgment recorded by the trial court was upheld and the sentence awarded to the appellant convict was also maintained. 2. Having been aggrieved of both the judgments of the courts below, the appellant filed this Criminal Appeal No. 10/2008 before this court which was admitted on 07.04.2008. Since no second appeal as in civil law is provided under the Criminal Procedure Code, confronted with this situation, the learned counsel for the appellant submits that this appeal be treated as criminal revision petition so as to go into the legality and correctness of the judgments passed by both the courts below. Hon'ble Apex Court in a case reported as 2002 Legal Eagle (SC) 181 in a similar situation had ordered that appeal against the concurrent findings of conviction recorded by the trial court as well as appellate court be converted as a revision by the High Court who exercises its revisional jurisdiction. Since there is no bar to convert an appeal wrongly filed by the appellant, the same is converted and treated as criminal revision petition. 3. Learned counsel for the petitioner convict argues that occurrence was stated to be on 30.09.1999 and the FIR was lodged on 01.10.1999, however, the copy of the FIR was received by the local jurisdictional Magistrate on 04.10.1999 after an inordinate delay of three days, which creates a doubt as to the veracity of the allegations made by the complainant and also the false implication of the convict. He has also pointed out that the complainant/victim in her statement had stated that she had lodged a verbal complaint before the police, whereas fact of the matter is that a written complaint was also on file which made basis of the lodging of the FIR. He has further argued that the impugned judgments recorded by the trial court as well as appellate court also cannot be maintained for the reason that the convict, while being examined under section 342 Cr.P.C., had not been put and explained whole of the incriminating evidence except for making cursory questions with regard to the evidence recorded without detailing the contents thereof. He argued that both the judgments are not sustainable on this aspect alone. Finally, he has prayed that the judgments recorded by both the courts below be set-aside and the convict be acquitted of both the charges of which he has been convicted and sentence. 4. Per contra, learned counsel for the respondent vehemently argued that this court while exercising the revisional jurisdiction cannot go into the intricate questions of evidence recorded by the trial court and also appreciated by the appellate court; and that the learned counsel for the convict has not been able to show as to what is the illegality so as to warrant setting aside of the impugned judgments so as to acquit the convict of the charges for which he has been concurrently convicted and sentenced. He has finally prayed that the revision petition be dismissed and the judgments recorded by the trial court as well as by the appellate court be upheld and conviction and sentence recorded against the convict be maintained to ensure justice to the victim. 5. Heard, perused the record and considered. 6. He has finally prayed that the revision petition be dismissed and the judgments recorded by the trial court as well as by the appellate court be upheld and conviction and sentence recorded against the convict be maintained to ensure justice to the victim. 5. Heard, perused the record and considered. 6. The factual matrix of the case as recorded by the courts below is that an FIR came to be registered on 01.10.1999 at about 10 P.M. on the basis of a written report presented by one Usha Devi to Incharge Police Station Akhnoor in presence of Karnail Singh, Balbir Singh and Jagdish Singh with the allegations that she along with her family was at her home place at Charda Garan, Tehsil Akhnoor when her husband, who was an army man, had gone to his duties, on 13.09.1999 during night she had gone out in her compound and the moment she came out, accused Subash Chander, who was keeping an eye over her caught hold of her with intention to outrage her modesty. However, she saved herself with great difficulty and ran towards her residential portion crying for help; that accused also followed her and entered the residential house behind her caught hold of her from her breast; on raising alarm by her, her father-in-law Karnail Singh and few other persons came on spot and on seeing they the accused fled away. The case was registered vide FIR No. 184/1999 at Police Station Akhnoor for the commission of offences punishable under sections 354 and 456 RPC. After investigation of the case, a chargesheet was laid against the accused Subash Chander, S/o Thoru Ram, R/o Pratap Kot, Tehsil Akhnoor for the commission of the aforementioned offences who was charged for the commission of these offences on 20.11.1999, who denied the charge and claimed trial. 7. Prosecution, in order to bring home the charge against the accused, examined Usha Devi-complainant, Karnail Singh, Balbir Singh, Jagdish Singh and Mohan Lal. The accused, in his defense, examined Manohar Lal and Kamlu Ram as defense witnesses. The trial court vide judgment dated 15.12.2001 recorded conviction of the accused for the commission of offences punishable under sections 354, 456 RPC and sentenced, which was upheld by the appellate court as well, vide its judgment dated 29.03.2008. 8. The accused, in his defense, examined Manohar Lal and Kamlu Ram as defense witnesses. The trial court vide judgment dated 15.12.2001 recorded conviction of the accused for the commission of offences punishable under sections 354, 456 RPC and sentenced, which was upheld by the appellate court as well, vide its judgment dated 29.03.2008. 8. It is worthwhile to mention that PW Karnail Singh happens to be the father-in-law of the complainant Usha Devi whereas PWs Balbir Singh and Jagdish Singh are her brothers-in-law. Complainant while reiterating the assertions made in her complaint had alleged that the accused had committed lurking house trespass and also outraged her modesty. PWs Karnail Singh, Balbir Singh and Jagdish Singh also supported the version of the prosecutrix who stated that they were sitting at their home along with PW Mohan Lal who had come for grinding of his wheat at the Mill and on being heard noise they ran towards the house of Kuldeep Singh husband of the prosecutrix and found Subash Chander having got hold of the prosecutrix from her breasts and was trying to outrage her modesty and on seeing them ran away. PW, Mohan Lal also echoed the statements made by the complainant as well as the other prosecution witnesses. 9. Defense witnesses examined by the accused made general statements with regard to the accused that he was person of good conduct having family. It appears from the evidence that the complainant was at her home alone, as her husband was on duty in army and the prosecution witnesses examined by the prosecution were staying in some other house, were attracted allegedly on the hue and cry raised by the complainant having been assaulted for outraging her modesty by the accused. 10. So far as the contention of the learned counsel for the petitioner convict that the convict had been prejudiced by not putting to him and explaining the incriminating evidence is concerned, the apex court in Criminal Appeal No. 1471 of 2023 titled 'Raj Kumar @ Suman v. State (NCT of Delhi)' has laid in para 16 which is extracted as under for ready reference: "16. The law consistently laid down by this Court can be summarized as under: (i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The law consistently laid down by this Court can be summarized as under: (i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction; (ii) The object of examination of the accused under section 313 is to enable the accused to explain any circumstance appearing against him in the evidence; (iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused; (iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused; (v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident; (vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; (vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under section 313 of Cr.P.C., and (viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered. " The question whether the accused convict can be called upon to explain the said circumstance after more than 27 years passed since the day of the incident, the considering of passing of the time, the Apex Court was of the view that it will be unjust now at this stage to remit the case to the trial court for recording further statement of the appellant under section 313 of Cr.P.C. as in the fats of the case the appellant cannot be called upon to answer something which has transpired 27 years back. 11. 11. Since the accused/convict was convicted by the trial court in the year 2001, and the conviction was upheld by the appellate court in the year 2008, this matter against both the judgments is being considered in the year 2023, whether the possibility of curing the irregularity committed by the Trial Court, while examining the accused in terms of Section 342 J&K Cr.P.C. (akin to Section 313 of Cr.P.C.) can and should be resorted to? Here, in the case on hand, the situation is that the occurrence had taken place in the year 1999, and since then, more than 24 years have lapsed, therefore, adopting the analogy of the judgment of the Apex Court this court is also of the considered opinion that the accused convict cannot be called upon to answer something which has transpired 24 years back. 12. All the prosecution witnesses except PW Mohan Lal are from the same family and their statements being interested witnesses being father-in-law and brothers-in-law of the prosecutrix are to be considered with circumspection and cannot be relied upon safely, to rule out false implication. Prosecution had withheld and failed to examined IO as he did not appear as a witness during trial. The convict can be said to have been prejudiced, due to non availability of IO to extract certain clarifications with regard to investigation of the case. 13. In view of peculiar facts and circumstances of the case when the accused convict had not been examined properly by the trial court disclosing every incriminating evidence to him and just asking him the cursory questions as to whether he has heard the evidence against him and seeking his reply has caused prejudice to the accused convict, as such, his conviction stands vitiated, as in the facts of the case at this stage almost after two and a half decade, the option of remand will be unjust. 14. Having regard to the aforestated reasons and the discussion made hereinabove, the revision is allowed. The conviction recorded by the trial court and upheld by the appellate court against the accused/convict, for the commission of offences punishable under sections 456 and 354 RPC is set-aside. As a result, he is acquitted of the charge of the commission of aforestated offences. His bail/personal bonds are discharged. 15. Copies of this judgment be forwarded to both the Trial as well as Appellate Courts for information.