IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.2142 of 2003 Date of decision: September 27, 2010 Sushil Kumar .. Petitioner Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.S. Dinarpur, Advocate for the petitioner. Mr. J.S. Rattu, DAG, Haryana for the respondent. A.N. Jindal, J Assailed in this petition is the judgment dated 6.9.2003 vide which the Appellate Court dismissed the appeal against the judgment dated 2/3.3.2001 passed by the Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri, convicting and sentencing the accused-petitioner Sushil Kumar (herein referred as, 'the accused') to undergo rigorous imprisonment for six months and to pay fine of Rs.200/- under Section 323 IPC; rigorous imprisonment for one year and to pay fine of Rs.300/- under Section 354 IPC; rigorous imprisonment for two years and to pay fine of Rs.500/- under Sections 452 and 506 IPC. The prosecutrix in this case hailing from poor strata is resident of village Raiwala, Police Station Chhachhrauli. On 22.7.1995 at about 2.00 p.m. she had gone to have a bath in a bath room situated by the side of her house. She put off her clothes and was preparing to take bath. In the meantime, the accused appeared at the scene, opened the zip of his pant and caught hold of her. When she made a bid to raise hue and cry, he tried to shut her mouth with his hands. However, on hearing hue and cry, Champa Devi arrived there and thereafter Kala Devi also attracted to the scene of occurrence. The ladies so collected helped the prosecutrix in putting on her clothes. The accused fled away. On the aforesaid complaint, FIR under Sections 323/452/506/354 IPC was registered and the case was investigated. The prosecutrix was got medically examined. Statements of the witnesses were recorded and ultimately a report under Section 173 Cr.P.C. was Criminal Revision No.2142 of 2003 -2- submitted in the court. The accused was charged under Sections 323/452/354/506 IPC, to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined Jalpari prosecutrix (PW1), Champa (PW2), ASI Yashpal (PW3), Kala Devi (PW4), Inspector Piara Lal (PW5), Dr. V.K. Wadhawan (PW6) and ASI Hem Chand (PW7). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. However, no evidence was led in defence. The trial ended in conviction. His appeal also failed. Arguments heard. Record perused. The learned counsel for the petitioner while advancing multi- fold contentions has pointed out some contradictions in the statements of the prosecutrix as well as Champa (PW2). He has further urged that Kala Devi (PW5) has not supported the prosecution case and the medical evidence as given by Dr. V.K. Wadhawan (PW6) does not fit in with the ocular version and that Chhappar in which the petitioner had gone to take bath cannot be said to be a dwelling house. To the contrary, Deputy Advocate General, Haryana has supported the impugned judgment stating that the same is well reasoned and well founded and does not suggest any such illegality, infirmity or perversity warranting interference by this Court. This court should be hesitant to interfere in such cases involving immoral turpitude particularly when there are concurrent findings of two courts below indicting the accused guilty of the crime. Having pondered over the arguments, it would have to be held that the prosecutrix while appearing in the witness box as PW-1 has given minute details of the occurrence and the manner in which the accused intruded into her privacy while trespassing into her house and molested her modesty when she was quite naked. Champa Devi (PW2) has supported the fact that the accused was seen coming out of the bath room and the prosecutrix was naked at that time and was raising hue and cry and she helped her in wearing clothes. The prosecutrix and also Champa Devi had no ill will, bias, animus or enmity against the accused for implicating him in a false case. The medical examination conducted upon the prosecutrix on Criminal Revision No.2142 of 2003 -3- the same day, immediately after the commission of the crime, supports the fact that the accused during the process of molesting her modesty caused some injuries to her when he grappled with her and threw her on the ground. The minor discrepancies are bound to occur in the statements of the truthful witnesses. No further appreciation of evidence is required at this revisional stage but it would be suffice to say that when the witnesses are examined at length and they withstand the test of cross examination, in that situation, they are not expected to reiterate all the circumstances in verbatim rather such discrepancies are bound to occur with the passage of time as human memory is likely to fade after a lapse of certain period. Moreover, the discrepancies as pointed out by the accused do not in any way effect the substratum of the prosecution case. As regards Kalawati, though she has resiled from her previous statement, yet, she having come later may have not seen the occurrence. Nevertheless, in view of the testimony of the prosecutrix and other corroborative evidence as referred to above, her testimony does not in any way effect the prosecution case. The next contention raised by the learned counsel for the petitioner is that the chhappar where the incident is alleged to have occurred was not used for dwelling purpose, therefore, no offence under Section 452 IPC is made out. Having pondered over the said argument, it may be observed that the prosecutrix while appearing in the witness box as PW-1 has categorically deposed that the said chhappar is the integral part of her house and the same was used as bath room by her. As such, it cannot be said that the same could be excluded from the definition of “human dwelling”. As a last resort, learned counsel for the petitioner has requested this court to extend some leniency on the quantum of sentence and extend benefit of probation. In this regard, it may be observed that since the accused while making misuse of the nudity of the prosecutrix, trespassed into her house, pounced upon her and molested her modesty, in such a grave circumstances if the accused is extended benefit of probation, then it may send a wrong signal to the society that the accused of a heinous crime could be left unpunished. In this regard, reliance could be placed on the judgment delivered by the Apex Court in case Jayakanth v. State of Karnataka, 2009 Criminal Revision No.2142 of 2003 -4- (5) R.C.R. (Criminal) 896 wherein it was observed as under :- “The learned counsel for the petitioner further submitted to extend the benefit of the probation of Offenders Act. On this aspect of the matter, he placed reliance on the decision of the Apex Court reported in AIR 2005 Supreme Court 3104 [2005 (4) All India Criminal LR (S.C.) 83] [Kanwar Pal V. Gill v. State (Admn. U.T. Chandigarh) Thro. Secry., and another. It was a bottom slapping case by the accused and taking into consideration the appeal of the victim wherein the accused was granted probation, the Apex Court held that the appeal of the victim is for enhancement of the sentence, the incident occurred long back and the accused has completed the period of probation without violating the terms of bond and therefore, instead of resorting to any other punishment at that stage, the order of probation was confirmed. The facts in the said case differ from the facts in hand. This incident occurred in the open street in the presence of the public, wherein the accused blinked his eyes at the victim and dragged her stole and thereafter she was threatened of kidnap. Considering the facts and circumstances of this case, I do not think that the principles laid down by the Apex Court would be applicable. The learned counsel also relied the decision of the Apex Court reported in 1999 Supreme Court Cases (Cri.) 1046 : 12000(10 All India Criminal LR (S.C.) 2821 [State of Karnataka v. Muddappa], wherein for the offence under Section 304 II IPC., the benefit of Probation of Offenders Act was extended. He also referred to the decision of the Orissa High Court reported in 2008 Cri. L.J. (NOC) 456 (Ori) [Gouranga Charan Sethy & Anr. v. State of Orissa]. The facts in the decision of the Hon'ble High Court of Orissa are not available as it is a note on cases reported and the perusal of the note reveals that due to the involvement, the Service of the official who was the accused in that case were terminated and taking such fact into consideration the benefit was extended. Considering the facts Criminal Revision No.2142 of 2003 -5- in the decision referred to above, the facts are not alike. Considering the nature of the offence and the security of the woman in the street, I feel that it is not a fit case, where the benefit of Probation of Offenders Act can be granted.” The scope of revision at the revision stage is very limited. The Hon'ble Karnataka High Court, on this aspect of the matter, in Jayakanth's case (supra) further observed as under :- “It is well established principle of law that the powers of revision vested with this court under Section 401 Cr.P.C. are limited. This Court cannot re-appreciate the evidence and unless the petitioner establishes that there is an error apparent on the face of the record or there is such illegality or perversity in the Order of the Courts below, the findings cannot be disturbed. In the circumstances, I am of the opinion that the absence of independent witness has no bearing over the evidence of P.Ws.1 and 2 and their evidence is sufficient to prove the ingredients of the offence, so far as Ex.P.1 and the evidence of P.W.2 is concerned, though the contents of Ex.P.1 are not acceptable, as there is no incriminating circumstances in Ex.P.1, the non proof of Ex.P.1 does not affect the case of the prosecution. So, taking into consideration all these circumstances, I am of the opinion that the courts below were right in awarding the conviction for the offence under Section 354 IPC.” Thus, in the peculiar circumstances of the case, I do not consider it a fit case to extend any leniency on the quantum of sentence. For the foregoing reasons, this petition being devoid of any merit is dismissed. September 27, 2010 (A.N. Jindal) deepak Judge