AYOUB DEDAR Vs. STATE OF J AND K

JUDGEMENT

(1.) 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 under 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/- under S.376 read with 511, RPC and rigorous imprisonment for two months for offences punishable under 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.

(2.) 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 under 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 S.342, CrPC 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.

(3.) 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 S.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 under 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.