AT CHANDIGARH v. State of Haryana

case was registered against the petitioner vide FIR No.148 dated 02.07.2002 on accusation of having committed the offence punishable under Sections 452 and 354 IPC by the police of Police Station Kanina, District Mahendergarh,in the manner indicated herein above.

4. Having completed all the codal formalities, ultimately, the petitioner was charge-sheeted for the commission of aforesaid offence by the trial Magistrate vide order dated 18.10.2002. As the petitioner did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.

5. The prosecution in order to substantiate the charges framed against the petitioner, examined PW1-Ved Parkash, complainant and eye witness of the occurrence. Narrating the sequence of events, PW1 maintained that on the fateful day, the petitioner entered his house and outraged the modesty of PW3. He proved his complaint (Ex.PW1/A) which formed the basis of FIR.

6. Sequelly, PW2-Pinki, daughter of the complainant and PW3- Crl.Revision No.1388 of 2004 3 Mewa Devi has corroborated the version of PW1 and stated on oath that the petitioner having entered their house, outraged her(PW3) modesty.

7. Likewise, PW3 has also given the natural and cogent version of the incident and, inter alia, maintained that the petitioner has outraged her modesty on the fateful day. Instead of reproducing their statements in toto and in order to avoid repetition, suffice it to say that PW1 to PW3 have corroborated the prosecution version on all vital counts.

8. PW4 brought the special report to the Magistrate on

02.07.2002. PW5-ASI Nand Lal, who has proved FIR (Ex.PW5/A) and endorsement(Ex.PW5/B). PW6, the investigating officer has testified the investigation carried out by him, who has proved ruqa(Ex.PW6/A) and site plan (Ex.PW6/B). He has also arrested the petitioner and recorded the statements of the witnesses.

9. After the close of the case of the prosecution, the statement of the petitioner was recorded as contemplated under Section 313 Cr.P.C. But he has stoutly denied the prosecution version in its entirety and pleaded false implication.

10. In order to substantiate his plea of defence, the petitioner has examined DW1-Dharambir, who, inter alia, stated that no incident took place in the night of 28th June, 2002, in the manner suggested by the prosecution.

11. The Trial Magistrate, after considering the evidence on record, convicted and sentenced the petitioner in the manner indicated herein above.

12. Sequelly, the appeal filed by the petitioner was also dismissed by the learned Sessions Judge, vide impugned judgment dated 09.07.2004.

13. The petitioner still did not feel satisfied with the impugned judgments of conviction and order of sentence and filed the present revision petition. That is how I am seized of the matter.

14. Assailing the impugned judgments of conviction and order of sentence, learned counsel for the petitioner has raised a variety of arguments, such as, that the story of the prosecution is highly improbable, its evidence is discrepant, not reliable, there is a delay in lodging the report and the petitioner has been falsely implicated. In all, according to the learned counsel for the petitioner that the evidence brought on record by the prosecution falls short as is required to prove a criminal charge against the Crl.Revision No.1388 of 2004 4 petitioner.

15. Hailing the impugned judgments, on the other hand, it has been urged on behalf of the State that the prosecution has produced sufficient reliable and trustworthy evidence on record and the courts below have rightly convicted and sentenced the petitioner in this regard.

16. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after considering the matter deeply, to my mind, as no ground for interference in the impugned judgments of conviction recorded by the courts below, is made out, therefore, the petition deserves to be dismissed for the reasons mentioned herein below.

17. At the very outset, the main argument of learned counsel for the petitioner that there is a delay of about five days in reporting the matter to the police, which is fatal to the prosecution case, is not only devoid of merit but misplaced as well. It is not a matter of dispute that PW1 to PW3 belong to a backward community and are illiterate persons. The honour of the family in general and PW3 in particular was involved. Therefore, a person would think hundred times to report the matter to the police to save the honour of the family in such cases and would try to resolve the matter before going to the police station. The petitioner is their co-villager. It has come in evidence that the matter was reported to the 'panchayat' and it convened meetings upto 02.07.2002 to settle the dispute between the parties, but in vain. When the efforts for settlement proved futile, then, having no other option, PW1 reported the matter to the police on

02.07.2002. So, under these circumstances, this argument of the learned counsel for the petitioner pales into insignificance that there is an unexplained delay. On the other hand, the delay stands duly explained in this relevant connection.

18. The next feeble argument of learned counsel for the petitioner that the evidence of the prosecution falls short, as is required to prove criminal charge against the petitioner, again is not tenable. PW1 is none else but husband of the victim(PW3) while PW2-Pinki is their daughter. The prosecution claimed that while PW2 and PW3 were sleeping in the courtyard, the petitioner entered in their house and outraged the modesty of PW3 in the manner suggested by the prosecution. PW1 to PW3 have Crl.Revision No.1388 of 2004 5 categorically corroborated the prosecution version on all vital counts. They were cross-examined at length but no substantial material could be elicited in their cross-examination to dislodge their testimony. Their presence at the spot was most natural and cannot possibly be doubted. No cogent material is forthcoming on record as to why they would falsely implicate the petitioner levelling such serious allegations against him involving the honour of their family.

19. In this respect, the last argument of learned counsel for the petitioner that in the absence of independent corroboration, no implicit reliance can be placed on the statements of PW1 to PW3, again has no force. As is evident from the record, the prosecution case is fully corroborated by eye witnesses-PW1 and PW2 including PW3, the victim. The mere fact that Satyawan, Mahabir and Jage Ram, who subsequently, followed the petitioner after the occurrence, were not examined by the prosecution, would have no direct adverse bearing on the prosecution case, which is otherwise proved by oral as well as the documentary evidence, as discussed herein above. Besides, it is nobody's case that either Satyawan, Mahabir, Jage Ram or any other person witnessed the occurrence. The main eye witnesses PW1 to PW3 including the victim have corroborated the prosecution version on all vital counts. Moreover, there is no legal requirement for the prosecution to produce each and every witness of the occurrence, in question, in the court in view of Section 134 of the Indian Evidence Act, which postulates that no particular number of witnesses shall in any case be required for the proof of any fact in issue.

20. Not only that the statement of PW3 is to be believed as true in the same manner as the evidence of an stamped/injured witness, but, in the instant case, her statement finds full corroboration from the statements of PW1 and PW2 on all vital counts. Therefore, the arguments of the learned counsel for the petitioner that the evidence of the prosecution is discrepant, 'stricto sensu' deserve to be and are hereby repelled under the present set of circumstances of the case.

21. Learned counsel for the petitioner has also pointed out that there are contradictions in the statements of PW1 to PW3 and the innocence of the petitioner is proved from the statement of DW1-Dharambir, again has no force. Meaning thereby, all the arguments of the learned counsel for the Crl.Revision No.1388 of 2004 6 petitioner are beyond the scope of revisional jurisdiction of this Court which can only be exercised to test the correctness, legality and propriety in the impugned judgments. The courts below recorded a finding of facts based on the reliable evidence that the petitioner, having entered the house, outraged the modesty of PW3. All the contentions now sought to be pressed into service by the learned counsel for the petitioner, have already been duly considered and decided by the courts below. Such finding of facts based on the evidence cannot possibly be interfered while exercising the limited revisional jurisdiction of this Court.

22. Faced with the situation, learned counsel appearing on behalf of the petitioner has fairly acknowledged that he will not be in a position to contest the conviction of the petitioner any more, in view of the finding of facts recorded by the courts below and this Court cannot re-appreciate and re-evaluate the evidence brought on record in exercise of its revisional jurisdiction.

23. However, learned counsel for the petitioner contended with some amount of vehemence that the petitioner has already suffered a protracted long trial, is a first offender and is ready to compensate the victim in this context, as they belong to the same village.

24. The argument is that there are sufficient grounds and the lower Appellate Court ought to have granted the benefit of probation to the petitioner but it neither granted the same benefit nor assigned any cogent reasons in this respect, as envisaged under Sections 360/361 Cr.P.C.

25. In order to substantiate his arguments, learned counsel for the petitioner has placed reliance on the judgments of the Hon'ble Apex Court in cases reported as Isher Das Versus The State of Punjab, AIR 1972 SC 1295, Sitaram Paswan and another Versus State of Bihar, AIR 2005 SC 3534 and of this Court in Parkash Versus State of Haryana 1986 (1) Recent Criminal Reports 94, Bijender Versus State of Haryana, 1996(1) Recent Criminal Reports 192, Pakhar Singh Versus State of Punjab 2007 (1) Recent Criminal Reports (Criminal) 396 and Hamir Singh Versus State of Punjab 2009(3) Recent Criminal Reports (Criminal) 64.

26. Although, learned counsel appearing on behalf of the State has neither disputed the factual matrix nor the law laid down in the aforesaid judgments, but he urged that the petitioner is not entitled to the benefit of Crl.Revision No.1388 of 2004 7 probation.

27. Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, while Section 361 Cr.P.C. posits that where in any case, the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, but has not done so, it shall record in its judgment the special reasons for not having done so. Meaning thereby, the Court while not granting the benefit of probation of Offenders Act, has to record special reasons. But, in the instant case, the courts below did not assign any cogent reasons and just bye-passed the mandatory provisions on unsustainable grounds in this respect.

28. Moreover, Section 4 of the Probation of Offenders Act, 1958 (hereinafter to be referred as 'the Act”), postulates that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour.

29. Again, it is not a matter of dispute that the crux of the law laid down in the aforesaid judgments is that the non obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have overriding effect, shall prevail if the conditions depicted therein are fulfilled and the benefit of probation should be granted to the petitioner under such circumstances.

30. Sequelly, In Parkash's case(supra), the accused, who was a young man of 20 years of age at the time of commission of offence, had committed assault on the prosecutrix therein while she was cutting grass in her fields. The accused came from behind the prosecutrix, took her in his grip and outraged her modesty. She suffered bruises on her breasts, arms, Crl.Revision No.1388 of 2004 8 hands and feet.

31. Similarly, in Bijender’ case (supra), the accused, who was below 21 years of age at the time of commission of offence, had been convicted for the offence under Section 354 IPC and sentenced to undergo rigorous imprisonment for two years. He was facing trial for a period of five and a half years and was not a previous convict.

32. Likewise, in Hamir's case(supra), the accused was 18 years of age, entered the house of the complainant and outraged her modesty. He was convicted under Sections 451 and 354 IPC. The complainant and the accused belong to the same village. It was ruled that the accused had committed the offence which was definitely against the accepted morals of our society. But, it cannot be said that it is a gone case never to be reclaimed back by the civilized society. Therefore, under the similar set of circumstances, as in the instant case, the accused were granted the benefit of probation of Offenders Act. The ratio of above-mentioned judgments mutatis-mutandis is applicable to the facts of the present case.

33. Having regard to the rival contentions of the learned counsel for the parties, having gone through the circumstances emanating from the record and after considering the matter deeply, to me, it would be expedient in the interest of justice, if the benefit of probation is granted to the petitioner, inter alia, on the following grounds:- i) Petitioner was a young man of about 30 years (as is clear from the statement recorded under Section 313 Cr.P.C.) of age at the time of alleged offence. ii) The occurrence in this case is of 28.06.2002 and the case was registered against the petitioner on

02.07.2002. He has already suffered humiliation before the 'panchayat' till the registration of the case and, thereafter, he has suffered the agony of protracted trial for the last more than seven and a half years. iii) The petitioner and the PWs belong to the same village and may live in peace. iv) Petitioner is a first offender and there is no history of his previous conviction. v) The antecedents and credentials of the petitioner Crl.Revision No.1388 of 2004 9 are such that he has not been found involved in any other case. vi) He has been leading a life of honest peaceful citizen in the village. vii) He has already undergone about two months, a considerable period of his sentence. viii) He is ready to compensate the victim in this respect. ix) The latest trend of penology is not punitive but reformatory.

34. Above being the state of law and facts on record and taking into consideration the law laid down in the aforesaid judgments, the period of agony of protracted trial, manner of the occurrence, age and antecedents of the petitioner and totality of other facts and circumstances emerging out of the record, as discussed here-in-above, to me, it would be expedient and justice would be squarely met and sub-served if a lenient view in the matter of sentence is taken against the petitioner, inasmuch as, no useful purpose would be served in sending him again to jail to serve out the remaining period of sentence and instead of sending him to prison, he be released on probation in the obtaining circumstances of the case. Particularly when, he can be directed to pay compensation to the victim under Section 5(a) of the Act.

35. In the light of aforesaid reasons, the impugned judgments of conviction are hereby maintained. Be that as it may, however, the petitioner is directed to be released on probation on his furnishing personal bond (within two months) in the sum of Rs.20,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the condition that he would keep peace and be of good behaviour, for a period of two years from the date of passing of this order. He is further directed to pay a sum of Rs.15,000/- (within two months) as compensation, which shall be paid to the victim as contemplated under Section 5(a) of the Act. In case, he is found to be indulged in such like illegal activities and failed to pay the aforesaid compensation, then the sentence awarded to him by the courts below shall stand revived.

36. No other point worth consideration has been urged or pressed Crl.Revision No.1388 of 2004 10 by the learned counsel for the parties.

37. For the reasons recorded above, the revision petition stands disposed of accordingly. January 28, 2010 ( Mehinder Singh Sullar) Judge