Crl. Revn. No. 1189 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revn. No.1189 of 2002 Date of decision: 12.01.2010 Sher Singh ...Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Sailender Singh, Advocate, for the petitioner. Mr.G.S.Chahal, Additional Advocate General, Haryana. **** MEHINDER SINGH SULLAR, J.(Oral) Having lost the legal battle in Courts below, Sher Singh- accused-petitioner(for brevity “the petitioner”) has filed the present revision petition against the impugned judgment of conviction and order of sentence dated 30.3.2001, whereby the trial Court convicted and sentenced him to undergo rigorous imprisonment for a period of one year, to pay a fine of Rs.1000/- for the commission of offence punishable under Section 354 of the Indian penal Code and in default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of one month and the impugned judgment dated 22.05.2002 vide which, while dismissing his appeal, the lower Appellate Court has reduced the sentence to undergo rigorous imprisonment for a period of six months. 2. The compendium of the prosecution case culminating in the commencement, relevant for disposal of the present revision petition and emanating from the record is that on 30.03.2000, complainant-PW1-Sheela Devi was taking rest under a Jamun tree, after uprooting onions crops, in Crl. Revn. No. 1189 of 2002 2 their fields at village Dabkauli. At about 1.30 P.M., her brother-in-law(Jeth) Karambir and sister-in-law(Jethani) had gone to their house after taking cattle fodder. Thus, PW1 remained alone in the fields. In the meantime, the petitioner came there and sat on the cot (Charpai), whereas PW1 was sitting on the ground at some distance. She proclaimed that if he (petitioner) wanted to go to village, then, why he was sitting there and he should go to the village but he remained sitting there. 3. The case of the prosecution further proceeds that thereafter PW-1 went towards her fields in order to cut the grass. The petitioner also followed her, caught her hand and dragged her towards the fields. She raised noise which attracted PW2-Purshotam, Karambir, her brother-in-law and sister-in-law (Jeth and Jethani). They also reached at the spot. On seeing them, the petitioner decamped from the spot. 4. Levelling a variety of allegations in all, according to prosecution that on 30.03.2000, the petitioner assaulted, used criminal force and outraged the modesty of PW1. On the basis of aforesaid allegations and in the wake of complaint/statement, Exhibit PA of PW1, the present case was registered against the accused vide FIR No. 59 dated 30.03.2000, on accusation of having committed the offence punishable under Section 354 IPC by the police of Police Station Indri, District Karnal in the manner indicated here-in-above. 5. Having completed all the codal formalities, the petitioner was charge-sheeted for the commission of offence punishable under Section 354 IPC by the Magistrate vide order dated 30.03.2001. As the petitioner pleaded not guilty and claimed trial, therefore, the case was slated for the evidence of the prosecution. 6. The prosecution, in order to substantiate the charge brought against the petitioner, examined PW-1 Sheela Devi, PW-2 Purshotam, eye witness of the occurrence and PW3-ASI Ajit Singh, the Investigating Crl. Revn. No. 1189 of 2002 3 Officer. 7. After the close of the evidence of the prosecution, the statement of the petitioner was recorded as contemplated under Section 313 Cr.P.C. The petitioner denied the prosecution evidence in its totality and pleaded false implication. He has produced DW1-Shish Pal and DW2- Ram Kumar as defence witnesses. 8. The trial magistrate, after taking into consideration the evidence brought on record by the prosecution, convicted and sentenced the petitioner as described above. 9. Aggrieved by the impugned judgment of conviction and order of sentence, the appeal filed by the petitioner was also dismissed by the lower Appellate Court vide impugned order dated 22.05.2002, except for reduction in the sentence. 10. The petitioner still did not feel satisfied with the impugned judgments/order and filed the present revision petition. That is how I am seized of the matter. 11. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to me, 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. 12. Raising a variety of arguments, such as, that the story of the prosecution is highly improbable, its evidence is discrepant, not reliable 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 petitioner. 13. Meaning thereby, all the arguments of learned counsel for the Crl. Revn. No. 1189 of 2002 4 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 fact based on the evidence that the petitioner outraged the modesty of PW1. All the points now sought to be canvassed 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 interferred while exercising the limited revisional jurisdiction of this Court. 14. As is evident from the record, the prosecution has examined the prosecutrix(PW1), who has fully corroborated its case and another eye- witness PW2, has also corroborated the statement of PW1 on all vital counts, as regards, the substantive offence against the petitioner is concerned. In addition to it, the prosecution has examined PW2-ASI Ajit Singh, who has duly testified the investigation carried by him. Both PW1 and PW2 gave a consistent version of the incident. They were cross- examined at length but nothing substantial material could be elicited in cross-examination to dislodge their testimonies. The statement (Exhibit PA) duly got recorded by PW1, suggests that the crime was committed by the petitioner in the manner projected by the prosecution, which is duly proved by the reliable, cogent and trustworthy evidence as depicted here- in-above. 15. The main celebrated argument of learned counsel for the petitioner that since, the prosecution did not examine Karambir, brother-in- law(Jeth) and sister-in-law(Jethani) of PW1 as witnesses in the Court, so, the charge against the petitioner is not proved, is not only devoid of merit but misplaced as well. The mere fact that Karambir, brother-in-law(Jeth) and sister-in-law(Jethani) of PW1 were not examined by the prosecution, would have no direct bearing on the prosecution case, which is otherwise proved by oral as well as the documentary evidence, as discussed here-in- Crl. Revn. No. 1189 of 2002 5 above. 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. Therefore, the contrary arguments of the learned counsel for the petitioner 'stricto sensu' deserve to be and are hereby repelled under the present set of circumstances. 16. 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 findings of facts recorded by the courts below and this Court cannot re-appreciate and re-evaluate the evidence in exercise of its revisional jurisdiction. 17. However, learned counsel for the petitioner contended with some amount of vehemence that during the pendency of the appeal before the lower Appellate Court, the matter was compromised between the parties at the intervention of 'biradri panchayat' but the Appellate Court just ignored the same. 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 the courts below neither granted the same benefit nor assigned any cogent reasons in this respect as contemplated under Section 360/361 Cr.P.C. 18. During the course of hearing of the petition, learned counsel for the petitioner has placed on record the original compromise deed dated 02.03.2002, which has been marked as Exhibit “RX” for facilitation, the genuineness of which has not been denied by the learned State Counsel. 19. 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 Crl. Revn. No. 1189 of 2002 6 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. 20. 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-pass the mandatory provisions on unsustainable grounds in this respect. 21. 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. 22. Admittedly, the crux of the law laid down in the aforesaid Crl. Revn. No. 1189 of 2002 7 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 accused under such circumstances. 23. 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 probation even the parties have compromised the matter vide compromise deed(Exhibit RX). 24. 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, hands and feet. 25. 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. 26. 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 Crl. Revn. No. 1189 of 2002 8 of probation of Offenders Act. The ratio of above-mentioned judgments mutatis-mutandis is applicable to the facts of the present case. 27. 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 boy of about 22 years of age at the time of alleged offence. ii) It is not a matter of dispute that the present case was registered against the petitioner on 30.03.2000 and he has suffered the agony of protracted trial for the last more than nine and a half years. iii) PW1(prosecutrix) compromised the matter with the petitioner at the instance of 'biradri panchayat' and relatives vide compromise deed(Exhibit RX), without any pressure vide which she does not want to further prosecute him. iv) The parties belong to the same village and may live in peace. v) Petitioner is a first offender and there is no history of his previous conviction. vi) The antecedents and credentials of the petitioner are such that he has not been found involved in any other case. vii) He has been leading a life of honest peaceful citizen in the village. viii) He has already undergone about one month, a considerable period of his sentence. Crl. Revn. No. 1189 of 2002 9 ix) The latest trend of penology is reformatory. 28. Such, thus, being the state of law and facts on record and taking into consideration the period of agony of protracted trial, age and antecedents of the petitioner, the fact that the prosecutrix has already compromised the matter with him with the intervention of 'biradri panchayat' and relatives and totality of other facts and circumstances emerging out of the record, as discussed here-in-above, to me, it would be expedient in the interest of justice, 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. 29. In the light of aforesaid reasons, conviction of the petitioner is hereby maintained. Be that as it may, he 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. In case, he is found to be indulged in illegal activities, the sentence awarded to him by the lower Appellate Court shall stand revived. 30. For the reasons recorded above, the revision petition stands disposed of accordingly. January 12, 2010 (MEHINDER SINGH SULLAR) seema JUDGE