IMPORTANT POINT
The failure to properly examine the accused regarding all material evidence constitutes a serious irregularity that can lead to the vitiation of a trial and subsequent conviction.

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. 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