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Feroz Ahmed Khan vs State Through Aag on 16 March, 2018

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Cr.Rev No.34/2017.
Date of Judgment : 16-03-2018
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Feroz Ahmed Khan Vs. State through AAG
Coram:

Hon’ble Mr. Justice Sanjeev Kumar, Judge.
Appearing counsel:

For Petitioner/appellant(s) : Mr. S.H. Thakur, Advocate
For Respondent(s) : Mr. Q.R. Shamus, Dy AG

i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?

1. 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

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Cr. Rev.34/2017 Page 1 of 11
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. 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

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Cr. Rev.34/2017 Page 2 of 11
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 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 Cr PC reproduced above, it is
abundantly clear that it is virtually extension of power of revision

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Cr. Rev.34/2017 Page 3 of 11
vested in the High Court under Section 435 Cr PC. 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 Cr PC 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 Cr PC 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 , AIR
1986 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. 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.

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Cr. Rev.34/2017 Page 4 of 11
Similarly in the case of Duli Chand Vs Delhi Administration, AIR
1975 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 Supreme Court Cases 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 re-
appreciate 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 . 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

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Cr. Rev.34/2017 Page 5 of 11
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. 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

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Cr. Rev.34/2017 Page 6 of 11
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 . 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

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Cr. Rev.34/2017 Page 7 of 11
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. 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

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Cr. Rev.34/2017 Page 8 of 11
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 RPC 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. 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 ,

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Cr. Rev.34/2017 Page 9 of 11
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.

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

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Cr. Rev.34/2017 Page 10 of 11
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. 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.

( Sanjeev Kumar )
Judge

Srinagar
16-03-2018
RSB, Secy.

This judgment is pronounced by me in terms of Rule 138(3) of the
Jammu and Kashmir High Court Rules, 1999.

( M.K. Hanjura )
Judge
Srinagar:

16-03-2018

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Cr. Rev.34/2017 Page 11 of 11

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