Ayoub Dedar vs State of J. and K. and Others

Gh. Hasnain Masoodi, J.—The criminal conviction appeal calls in question judgment and sentence order recorded by learned Sessions

Judge, Kupwara dated 29th of June, 2006 in case titled State v. Mohammad Ayoub Dedar, FIR No. 56/99 Police Station Kupwara u/s 376, read

with 511 and 323 of Ranbir Penal Code whereby learned Sessions Judge convicted the appellant for the aforementioned offences and sentenced

the appellant to rigorous imprisonment of two years and fine of Rs. 1,000/- u/s 376 read with 511, RPC and rigorous imprisonment for two

months for offences punishable u/s 323, RPC. In default of payment of fine appellant was directed to suffer further imprisonment for two months.

The sentences were directed to run concurrently. Before adverting to the grounds set out in the appeal it may be proper to have an overview of the

case set up by the prosecution before the trial Court.

Briefly stated the prosecution case before the trial Court was that on 25th of March, 1989 the appellant caught hold of victim, 10/12 years old

girl in a local jungle at Thenan, Gujran, Kalaroos, dragged the victim, committed an indecent assault on the victim disrobed her and made an

attempt to commit rape on the victim. The prosecution case was that the victim was able to save herself from the clutches of the appellant only after

her sister Miss Shaheena (P.W. No. 2) raised a hue and cry and some locals were attracted to the scene of occurrence. The occurrence was

claimed to have been reported by the victim to the local Police Station on the day following whereupon case FIR No. 56/89 u/s 376 read with 511

and 323, RPC was registered. After usual investigation the charge-sheet was presented before the competent Court. It took the trial Court 17 long

years to take the trial to its logical end. The prosecution examined as many as five witnesses to substantiate charge against the accused. The

prosecution witnesses who stepped in the witness box included the victim, her sister, father of the victim and other two witnesses who according to

the prosecution were alarmed by the hue and cry raised by the sister of the victim and rushed to the scene of occurrence. The incriminating material

come across in the prosecution evidence was put to the appellant in accordance with Section 342, Cr. P.C. and the appellant given an opportunity

to explain such circumstances. The case set up by the appellant before the trial Court was one of total denial of alleged occurrence. The appellant

examined two witnesses in his defence.

Learned trial Judge after making a discussion of the prosecution evidence, the statement made by the appellant to explain the circumstances

appearing in the prosecution against the appellant and the defence evidence found the prosecution to have succeeded in establishing the guilt of the

appellant beyond reasonable doubt. The appellant was accordingly convicted of the offence alleged in the charge-sheet. Learned trial Judge in the

same judgment proceeded to sentence the appellant as above.

The conviction and sentence recorded by learned trial Court is assailed on the ground that the trial Court failed to appreciate the evidence

brought on the file by the prosecution and defence in its right perspective. The trial Court is said to have observed the requirements of Section 342

Code of Criminal Procedure in breach. The prosecution is said to have failed to examine the witnesses namely Zawar Jan and Zareena who as per

the testimony of prosecution witnesses were present on spot. In is urged that the FIR was lodged after inordinate delay and that the delay in

lodging the FIR was not explained during the trial. It is insisted that there was no material on the file to help the prosecution that simple hurt was

caused to the victim by the appellant and thus conviction of the appellant u/s 323 of RPC and the resultant sentence was devoid of any basis. The

trial Court is said to have paid least attention to the discrepancies and the contradictions in the prosecution evidence. The appellant has also

questioned the mode and manner in which the sentence has been passed by the trial Court after recording judgment of conviction. It is pleaded that

reasonable time was not granted to the appellant to make submissions on the question of quantum and in effect the right of hearing guaranteed to

the appellant on the quantum of sentence was violated.

I have gone through the memo of appeal as also the record received from the trial Court and I have heard Counsel for the appellant Mr. A. M.

Watali and Mr. N. H. Shah, learned Deputy Advocate General at length, given thoughtful consideration to the arguments advanced at Bar. The

first and foremost ground taken up by the appellant is that learned trial Court has misappreciated the evidence on the file. The ground urged makes

it necessary to look into the prosecution evidence and see whether learned trial Court has made a proper appreciation of the evidence on the file.

The victim was 10/12 years of age at the time of occurrence. The victim a decade after the occurrence has appeared in the witness-box and given

vivid details of the occurrence. The victim deposed before the trial Court that the appellant after closing her mouth with his hand, intimidated and

dragged the victim, opened his pyjama as also her pyjama and after her sister P. W. Shaheena raised a hue and cry P.Ws. Rashid and Shabir

rushed to the scene of occurrence and covered her private parts. The victim has stated that the victim on the next following day lodged report Ex.

P.W. 1/1 with the Police and that her wearing apparels were seized by the Police vide Seizure Memo Ex. P.W. 1/2. The victim has been subjected

to searching cross-examination by the defence counsel. The defence Counsel has not been able to extract any such information from the victim as

would cast any doubt on the veracity of the testimony. The statement made by the victim was corroborated in all essential details by her sister

P.W. Shaheena and other two witnesses P.Ws. Shabir and Rashid who rushed to the scene of occurrence immediately after the occurrence. The

victim has justified her presence in jungle where occurrence took place and also that of her sister P.W. Shaheena. Learned trial Judge after making

a thorough and threadbare discussion of the prosecution evidence and taking note of the cracks that were attempted by the defence Counsel to be

identified in the prosecution evidence, recorded cogent and convincing reasons for placing faith in the testimony of victim and other witnesses of the

occurrence. Learned trial Judge was right in observing that there was no reason to conclude that the statement of the victim or the statements of

other prosecution witnesses were tainted with malice or ill will. There was no material before the learned trial Judge to hold that there was some

previous enmity between the victim or the prosecution witnesses and the appellant which could have persuaded the victim and other prosecution

witnesses to cook up a false and frivolous case against the appellant. The appellant as a matter of fact when asked to explain the prosecution

evidence and give his side of the story did not refer to any previous dispute or difference with the victim and other prosecution witnesses. There

can hardly be any disagreement with the learned trial Judge that having regard to the age of the victim the testimony of the victim inspired

confidence, moreso, when the statement of the victim found independent corroboration from the other prosecution witnesses. Thus there is no

merit in the ground urged in the appeal that learned trial Judge has not appreciated the evidence both prosecution and defence with the objectivity

and impartiality.

The next ground urged relates to delay in lodging of the First Information Report. It is argued that the delay in lodging the FIR makes room for

additions, exaggerations and concoctions. The law insists on immediate and undelayed report to the police so that the complainant is not left with

an opportunity to make improvements and the first information report represents version of occurrence that actually took place, free from post

occurrence improvements. In the case in hand the occurrence as per prosecution version took place on 25th of March, 1989 and was reported to

police on 26th March, 1989 at about 1700 hrs. There has been thus a delay of more than 24 hours in lodging the FIR. Learned trial Judge appears

to have been alive to the mandate of law and dealt with the ground set up in the appeal, in the impugned judgment. Learned trial Judge has found

that the delay was sufficiently explained. It is pertinent to point out that the victim in her testimony disclosed that the village-elders had tried to

intervene and persuade the parties to settle the dispute and due to recalcitrance of the appellant the matter could not be settled and was later

reported to the Police. There is no scope for any disagreement with the learned trial Judge that the delay was convincingly explained. It is fact of

common knowledge that in remote rural areas having least presence of law enforcing agencies the village-elders intervene and at times make even

victims of worst offences to bury the hatchet so that the peace is maintained in the village and law enforcing agencies including the police have no

occasion to visit the village and are kept off the limits of the village. The reasons for such attitude are manifold and not difficult to guess.

The contention that the prosecution evidence suffers from contradictions and discrepancies and learned trial Judge while recording judgment of

conviction against the appellant has not paid due attention to the gaps and holes in the prosecution evidence highlighted by the defence is devoid of

any merit. The prosecution evidence as a matter of fact does not suffer from any serious contradictions as ought to have prompted the trial Judge

to disbelieve the prosecution evidence. The testimony of the victim as already stated finds support and corroboration from the testimony of all other

prosecution witnesses in material details. A few discrepancies here and there, point to truthfulness of the testimony rather than shaking its

creditworthiness. It is to be remembered that parrot like stories suggest of tutoring and concoction and not truthfulness. The discrepancies and

contradictions not going to the roots of occurrence, indicate that the depositions made are natural, uninfluenced and untutored. The learned trial

Judge was thus right in not allowing himself to be influenced by the case of so-called contradictions and discrepancies sought to be set up by the

defence.

The ground urged in the appeal that in absence of the medical evidence there was no material before the learned trial Judge to convict the

appellant of offence punishable u/s 323, RPC is again meritless. The victim, it may be recalled in her testimony has stated that the appellant

dragged the victim and that due to the assault committed by the appellant the victim suffered bruises on her face and chest. There was thus enough

material before learned trial Court to hold the appellant guilty of offence punishable u/s 323, RPC. Failure of the investigating agency to examine

the medical officer does not in any manner dilute the testimony of the victim. Section 319, RPC defines ""hurt"" as under:

Hurt

Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Section 321 details the circumstances when a person may be said to have voluntarily caused hurt. Section 321, RPC reads as under:

321 Voluntarily causing hurt

Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any

person, and does thereby cause hurt to any person, is said 'voluntarily to cause hurt'.

Section 323, RPC prescribes punishment for causing voluntary hurt. The statement of the victim duly corroborated by the prosecution

witnesses, having regard to the above provisions of RPC, leads to the irresistible conclusion that the trial Court was right in holding the appellant to

have been guilty of causing voluntary hurt to the appellant.

For the reasons discussed above no ground is made out to overset the conviction of the appellant for offences punishable u/s 376 read with

511 and 323, RPC.

This takes us to the argument that after the appellant was convicted of the offences punishable under Sections 376, 323, RPC, the appellant

was not given adequate opportunity to make submissions on the question of sentence. From perusal of the order of judgment and sentence

rendered and recorded by learned Sessions Judge, it transpires that learned Sessions Judge after holding the appellant guilty of offence punishable

u/s 376 read with 511 and 323, RPC did not adjourn the matter so as to enable the appellant to make use of right of hearing guaranteed u/s 276 of

the Code of Criminal Procedure. It will be appropriate to reproduce Section 276 of the Code of Criminal Procedure hereunder:

Judgment of acquittal or conviction.- (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 562, hear the accused on the

question of sentences, and then pass sentence on him according to law.

From a bare perusal of the above reproduced provision, it is abundantly clear that the trial Judge after hearing the arguments and points of law

(if any) is to give judgment in the case. In case the accused is found guilty, the trial Judge, unless he proceeds in accordance with Section 562, Cr.

PC. is required to hear the accused on the question of sentence and then pass sentence warranted under law. In the present case admittedly

learned trial Judge did not find it appropriate to consider the case of the appellant for his release on probation of good conduct instead of

sentencing the appellant. The trial Judge thus was required to afford the appellant an opportunity to project his view point on the question of

sentence. The right of hearing available to a convict u/s 276(2) is a valuable right. To make the right meaningful it is appropriate to give the convict

an adequate and reasonable opportunity to persuade the trial Court that even though the trial Court has held the prosecution to have proved its

case beyond reasonable doubt and convicted the accused still there are mitigating and extenuating circumstances that call for a lenient view and

lesser punishment. The trial Judge is expected to make a genuine effort to obtain from the convict information which is likely to have any bearing on

the question of sentence. The convict has been held to have even right to adduce evidence to make the Court aware of any mitigating and special

circumstance of which only convict and the witness, if any, are aware. Though there is no hard and fast rule regarding the matter to be adjourned

after the judgment recording the conviction is rendered, yet having regard to object of right of hearing available to the convict it is always

appropriate to adjourn the matter and give the convict a fair and reasonable opportunity to place all information or data before the trial Court as in

his opinion is relevant to the question of sentence. It has been held in Shiv Mohan Singh Vs. The State (Delhi Administration), that Sessions Judge

delivering judgment of conviction is to stay his hand and hear the accused on question of sentence and in appropriate cases give him an opportunity

to lead evidence which will also be rebutted by the prosecution. It has been held that the social compulsions, the pressure of poverty, the

retributive instincts to seek extra legal remedy and similar other considerations may legitimately tilt the scales as regards quantum of the sentence. In

the present case learned trial Judge by not affording the appellant a fair, reasonable and adequate opportunity to make full use of right of hearing

guaranteed u/s 276(2), Cr. P.C. has violated the mandate of law.

It is pertinent to point out that the appellate Court in a situation like present one may instead of remanding the case itself hear the appellant on

the question of sentence and thereafter proceed to pass the appropriate orders against the backdrop of submissions made before it. Such a course

in my opinion would not be appropriate in the present case as the appellant belongs to far flung area of the State and it may not be possible for the

appellant to make adequate use of the right available u/s 276(2), Cr. P.C. except before the trial Court.

It is apt to mention that learned trial Judge has ignored to follow the procedure laid down in Section 273 of the Code concerning trial before a

Court of Session. Section 273 comes into play after the prosecution concludes its evidence or the prosecution evidence is otherwise closed. The

aforesaid provision requires the trial Judge, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and

the defence on the point record an order of acquittal if the trial Judge considers that there is no evidence that the accused committed the offence.

The mandate of Section 273 of the Code of Criminal Procedure is to be followed, before the accused is asked to enter upon defence. Though

omission to follow Section 273 of the Code of Criminal Procedure is not fatal to the trial and a mere irregularity yet it is not for ""no reason"" that the

provision has been placed on the statute book. The object of Section 273, Cr. P.C. is to expedite the trial, avoid unnecessary harassment to the

accused by asking the accused to adduce evidence and to avoid wastage of public time and inefficient use of the Court time, for proceeding with

the trial where there is no evidence against the accused. The provision which has escaped attention of learned trial Judge in present case is to be

followed in letter and spirit and not taken as superfluous.

For the reasons discussed above while conviction of the appellant u/s 376 read with 511 and 323, RPC is upheld, the case is remanded to the

trial Court for hearing the appellant on the question of sentence as mandated by Section 276(2) of the Code of Criminal Procedure. Since the

matter has been awaiting disposal for last 19 years, the appellant shall appear before the trial Court on 31-12-2009. Learned trial Judge shall in

any case finally dispose of the matter by or before 31st of January, 2010. Send down the record along with the copy of this judgment.