CRR No.2575 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 2575 of 2011 (O&M) Date of Decision : 19.10.2011 Sanjay …Petitioner Versus State of Haryana …Respondent ………. CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- 1. Whether Reporters of local newspapers may be allowed to see judgment? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Mr. Mohd. Yousaf, Advocate for the petitioner. *** Alok Singh, J. (Oral) Petitioner-Sanjay has knocked the door of this Court through the present revision petition challenging judgment dated 09.07.2008, passed by the Judicial Magistrate 1st Class, Rohtak, by virtue of which he was convicted under Sections 354/292/34/120-B IPC and was sentenced to undergo rigorous imprisonment for one year. The appeal filed by the petitioner-accused was dismissed by the Additional Sessions Judge, Fast Track Court, Rohtak. The facts necessary for disposal of this petition are that on 31.07.1999 a complaint was filed by Mrs. Santra, mother of prosecutrix (Poonam), in the court of learned Additional Chief Judicial Magistrate, Rohtak, under Section 156(3) Cr.P.C. alleging that her daughter (Poonam) is of 14 years of age and about 7 months back her daughter (Poonam) was CRR No.2575 of 2011 (O&M) -2- alone in her house and at about 11 A.M. Ms. Sudesh-accused came to their house and took her daughter on the pretext of taking tea together. Ms. Sudesh-accused made her daughter (Poonam) sit in the room and she herself went out of the room on the pretext of attending the natural call and closed the door from the outside. Thereafter, Sanjay and Sukhbir who were hiding in the same room came out there and her daughter (Poonam) tried to run away from the room but she could not run away because of bolting of the room from outside. In the meanwhile, Sanjay took out a knife and directed her (Poonam) to remove her clothes. When she refused to do so, accused-Sanjay kept the knife on her chest and accused-Sukhbir took off her clothes forcibly; while Sanjay-accused took her photographs in naked condition and thereafter both the accused threatened her with dire consequences. After one month both the accused Sanjay and Sukhbir circulated the said photographs of Poonam in the village. On the basis of this complaint the present FIR was lodged against the accused persons. During investigation, the accused were arrested. Statements of the witnesses were recorded and after completion of the investigation challan was presented in the Court. The learned trial court charge sheeted the accused under Sections 342,292,506 read with Section 34 IPC to which they did not plead guilty and claimed trial. During the trial as accused Sukhbir died, thereafter proceedings against him were dropped vide order dated 21.07.2006. In order to prove its case, the prosecution examined as many as seven witnesses and thereafter closed the prosecution evidence. In their statements under Section 313 Cr.P.C. the accused denied all the prosecution allegation and claimed their false implication. They also examined two CRR No.2575 of 2011 (O&M) -3- witnesses in their defence. The learned trial court after hearing both the parties convicted and sentenced both the accused as noticed above. Learned counsel for the petitioner vehemently argued that accused has been falsely implicated in this case as the complaint was filed in the court after more than seven months of the alleged incident and that the complainant did not approach the police immediately after the alleged occurrence which cast a cloud of doubt around the version of the prosecution-complainant. He further argued that the learned trial court has erred in ignoring the statements of the defence witnesses who had categorically deposed that there was a dispute between the complainant and accused party. He further argued that the statements of the prosecutrix and the complainant are not corroborated by any independent evidence and as such the judgments passed by both the courts below are liable to be set aside and the accused deserves to be acquitted of the charge. I have carefully considered the argument of the learned counsel for the petitioner, but the same does not hold any water and is liable to be rejected. Prosecutrix (Poonam) while appearing in the witness box as PW4 has categorically deposed that she was taken by Ms. Sudesh-accused to her house on the pretext of taking tea together and there accused Sanjay and Sukhbir on the knife point forcibly got off her clothes from her body and thereafter she was photographed in the naked condition. She has categorically deposed that she tried to run away from the room but she could not go out as the door was bolted from the outside. She also deposed that her photographs were circulated by the accused in the village and the accused started blackmailing her family and also threatened them with dire consequences. Her statement is fully corroborated by her mother CRR No.2575 of 2011 (O&M) -4- Mrs. Santra PW1. In Indian society no girl/lady at the first instance would like to approach the police station to lodge a report regarding sexual harassment and she would disclose the matter to her family or to the police under compelling circumstances. The contention of the leaned counsel for the petitioner that independent witness has not been joined/examined by the prosecution is liable to be rejected as in sexual cases the prosecutrix herself is the best witness to narrate the incident and her sole statement if inspires confidence is sufficient to base the conviction and her sole statement does not require any corroboration from any independent witness. In the present case the accused took out a knife and thereafter made the prosecutrix naked and then took her photographed in naked condition. Moreover, the victim in this case is a minor girl and she was undressed under duress and there is no reason to disbelieve her sworn testimony. The best witness in a case to prove an offence under Sections 354/292 IPC is the woman herself against whom the offence is said to be committed. Both the courts below have rightly appreciated the evidence led by the prosecution and convicted the accused-petitioner under Sections 354/292/34 IPC and there is no reason to call interference in the findings arrived at by both the Courts below; and as such the same deserves to be upheld. Faced with this situation, learned counsel for the petitioner vehemently argued that the learned trial court ought to have given the benefit of probation to the petitioner under the Probation of Offenders Act as the petitioner is a first offender. He further argued that it is not a case of the prosecution that the petitioner tried to commit rape or has committed rape upon the prosecutrix and as such the petitioner is entitled for the benefit of probation. In support of his argument, learned counsel for the CRR No.2575 of 2011 (O&M) -5- petitioner placed reliance upon the judgments in the case titled as ‘State of Himachal Pradesh Vs. Dharam Pal’, reported in 2004 (9) SCC 681 and ‘Kanwar Pal Singh Gill Vs. State (Admn., U.T. Chandigarh) through Secy., and another’, reported in 2005 (6) JT 452. There is no dispute about the law laid down by the Hon’ble Supreme Court in the aforementioned authorities, but the facts in the present case are of altogether different. In the case of Kanwar Pal Singh Gill’s (supra) the accused, who was a high ranking IPS Officer, has outraged the modesty of an IAS woman officer at a dinner party by touching her. But, in the present case the accused has not only taken off the clothes of the prosecutrix but also got her photographs in naked condition and thereafter circulated the said photographs among the villagers. Therefore, the facts of the present case are altogether different from the facts of Kanwar Pal Singh Gill’s case (supra) and as such the said authority is of no help to the petitioner. In Dharam Pal’s case (supra), the accused was given the benefit of probation as the accused-petitioner was below 21 years of age at the time of commission of offence. Now, coming to the case in hand accused not only compelled the minor girl to take off her clothes and have photographed her in naked position and thereafter circulated the photographs in the village but also made specific suggestion to the prosecutrix during the trial with ulterior motive and to harass her that she put off her clothes herself and then got her photographs clicked after in a naked condition and for extracting money, accused have been falsely implicated due to personal enmity, which suggestion, of course, has been denied by the prosecutrix. In view of this unwanted, incorrect and malice suggestion, the accused-petitioner does not deserve for CRR No.2575 of 2011 (O&M) -6- any leniency. In the present case a minor girl of 14 years was forced to be naked and thereafter her photographs were taken in naked condition and then her photographs were got circulated in the villagers with intend to defame her character, reputation, dignity and honour in the society, therefore, I am not inclined to release the accused on probation. An accused of such an offence is not entitled for any leniency nor is entitled for the benefit of probation under the Probation of Offenders Act and as such the findings arrived at by both the courts below do not call for any interference by this Court. There is no merit in this revision petition and the same is hereby dismissed. ( Alok Singh ) October 19, 2011 Judge Anand