Jammu & Kashmir High Court
State Of J&K vs Vickey Sharma on 17 March, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 26.12.2022
Pronounced on: 17.03.2023
CRR No. 18/2016
State of J&K .....Appellant(s)/Petitioner(s)
Through: Mr. Pawan Dev Singh Dy. AG.
Vs
Vickey Sharma ..... Respondent(s)
Through:None
CORAM: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
01. Despite several opportunities granted for filing fresh particulars of the respondent, the petitioner-State has failed to do the needful.
02. This criminal revision has been filed by the petitioner-State against the order dated 20.07.2015, (for brevity 'the impugned order') passed by the learned Principal Sessions Judge, Samba (for brevity 'the Trial Court') in File No. 63/Sessions whereby respondent-Vickey Sharma, facing trial for offences punishable under Sections 376, 511, 452 RPC was discharged for commission of offences under Sections 376/511 RPC and has been charged for the offences punishable under Sections 452, 354 RPC.
03. The discharge of the accused/respondent has been challenged on the ground that the impugned order is contrary to law; against the facts of 2 CRR No. 18/2016 the case and has been passed in a mechanical manner without appreciating the evidence available on record; that the Trial Court has failed to appreciate the prosecution evidence in its true and correct perspective; that the important pieces of evidence have been ignored and the impugned order is based on surmises and conjectures, as such, the impugned order passed by the Trial Court deserves to be set aside.
04. Heard the learned counsel for the petitioner and perused the record on the file.
05. Briefly stated, the facts of the case are that on 30.08.2014, the prosecutrix was all alone at her home as her parents had gone out. At about 2.30 pm all of a sudden the accused-respondent herein entered in her room and bolted the door of the said room from inside, caught hold her by the throat and pressed her down in order to commit sexual intercourse with her. Thereafter, the accused-respondent herein un-dressed himself and also forcibly opened the salwar of the prosecutrix. She raised hue and cry and in the meanwhile her parents also came there. Having heard their sound the accused-respondent herein released her, and prosecutrix opened the door of the room, her parents came inside the room and caught hold of the accused- respondent herein.
06. The Police of Police Station, Bari Brahmana, on receipt of the complaint registered FIR No. 104/2014 for offences punishable under Sections 376, 511, 452 RPC and started investigation in the matter. On completion of the investigation by the Police, the offences punishable under Sections 376, 511, 452 RPC were established against the accused/respondent-herein and challan was presented for judicial 3 CRR No. 18/2016 determination.
07. The Trial Court, while discharging the accused-respondent herein vide impugned order for commission of offences punishable under Sections 376/511 RPC, has observed that had the accused-respondent herein proceeded ahead after undressing himself and opening the salwar of the prosecutrix, the matter would have been different. There is no material on record to reveal that the accused was determined to have sexual intercourse with the prosecutrix in all events, as such, this act does not fall within the purview of attempt to commit a rape. The Trial Court while discharging the accused respondent herein for commission of offence under Sections 376/511 RPC vide impugned order, has made the following observations-
" In the above background the offence cannot be said to be an attempt to commit rape to attract culpability u/s 376 511 RPC but there is certainly one of indecent assaults upon the prosecutrix. The act of the accused to catch hold of the prosecution and opening her salwar forcibly, is such as would be an outrage to the modesty of the prosecutrix. In taking this view I feel supported by the case law tilted Nanak Chand vs. State of Haryana 2006 (1) PCR (Criminal) 14 and Harnam Singh allias Bahadur vs. State of Rajasthan 2000(1) Crimes (HC) 588.
Accordingly, the accused stands discharged for commission of offence u/s 376/511 RPC, however, prima facie offence u/s 452, 354 RPC are made out against the accused. Accordingly, the accused is charge-sheeted for the aforesaid offence. The offences for which the accused is charged are not exclusively triable by the Court of Sessions and are triable by the Court of JMIC. The challan is as such remitted back to the court of ld. Chief Judicial Magistrate, Samba to proceed with the case in accordance with law. The charge sheet shall be read over to the accused by the trial court and after recording his plea the court shall proceed further in the case in accordance with law. The accused present in the court is directed to cause his appearance before the transferee court on 06.08.2015. PP is directed to send the case property and the record of 4 CRR No. 18/2016 the prosecuting agency to the said court. Meanwhile, office will ensure that the record of the case reach the trial court on or before the scheduled date fixed in the case before the transferee court. Index bed prepared and consigned to record."
08. While going through the evidence and the reasoning given by the trial Court, nothing could be found which could suggest that the Trial Court has not properly appreciated the evidence or to hold that there was sufficient evidence produced before it for holding the accused guilty.
09. In Bansi Lal & Ors. Vs Laxman Singh, (1986) SCR (3) 191, Hon'ble the Supreme Court, while dealing with the revisional jurisdiction of the High Court has observed as under:
"Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact-recorded by the Trial Judge is wholly unreasonable so as to be liable to be characterized as perverse and there has been a resultant miscarriage of justice. The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial court is more narrow in its scope. 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. In K. C. Reddy vs. State of Andhra Pradesh, (1963) 3 SCR 412, this Court had occasion to consider the scope of the revisional jurisdiction conferred on the High Court in relation to orders of acquittal passed by the trial court and after referring to two earlier decisions of this Court reported in D. Stenbens vs. Nosibolla, (1951), SCR 284 and Jogendranath Jha vs. Polailal Biswas, (1951) 5 CRR No. 18/2016 SCR 676 the legal position was explained thus:
"These two cases clearly lay down the limits of the High Court's jurisdiction to interfere with an order of acquittal in revision; in particular, Jogendranath Jha's case stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of section 439(4) and that the High Court cannot do this even indirectly by ordering re-trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial court's appreciation of evidence but formally complied with sub section (4) by directed only a re- trial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witness and the circumstances of the case in general."
10. The aforesaid decision was subsequently followed by the Supreme Court in Akalu Ahir and Ors. Vs. Ramdeo Ram (1974) 1 SCR 130 wherein it was observed as under:
"The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in Section 439(S), Cr.P.C. that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again on revision, the High Court is expressly prohibited from converting an acquittal into a 6 CRR No. 18/2016 conviction. Considering the problem facing the Court in the case background of this scheme, the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. It is not expected to act under ss. 435/439, Cr.P.C. as if it is a hearing on appeal in spite of the wide language under Section 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity for any proceeding and also in spite of the fact that under Section 439 it can be exercise inter alia the power conferred on a court of appeal under Section 423, Cr.P.C. The power being discretionary, it has to be exercised judiciously, and not arbitrarily. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodized by analogy and disciplined by system. In Amar Chand Aggarwal v. Shanti Bose, AIR 1973 SC 799, this Court said that normally the jurisdiction of the High Court under Section 439, Cr.P.C. is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice. In the background of the position just stated a private complainant can only claim a right, in common with all aggrieved parties in a criminal proceedings, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal."
11. As it is apparent from the record, the learned Trial Court in its well reasoned order has appreciated the material evidence on record and came to the conclusion that the prosecution has failed to prove its case against the accused beyond reasonable shadow of doubt. I have gone through the judgment of the trial Court and do not find any defect in the procedure or any manifest error. Therefore, Looking from any angle, this 7 CRR No. 18/2016 case does not fall in any of the exceptions carved out by Hon,ble the Supreme Court in Sheetala Prasad's case (supra), justifying exercise of revisional jurisdiction by this Court.
12. Having regard to the discussions made hereinabove and decisions of Hon'ble the Supreme Court referred hereinabove, I am satisfied that interference with the order of discharge for commission of offences under Sections 376/511 RPC passed by the Trial Court in this case is not justified in exercise of revisional jurisdiction of this Court. Therefore, this revision petition is found to be without any merit, and the same is, accordingly, dismissed..
(VINOD CHATTERJI KOUL) JUDGE Jammu 17.03.2023 Bir Whether approved for reporting? Yes/No 8 CRR No. 18/2016