Crl.Revision No.1221 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No.1221 of 2004 Date of Decision:09.02.2010 Mahipal .....Petitioner Versus State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Argued by: Ms.Geeta Sharma, Amicus-Curiae, for the petitioner. Mr.G.S.Chahal, Additional Advocate General, Haryana, for the respondent-State. **** MEHINDER SINGH SULLAR, J.(Oral) Impugning the judgment of conviction dated 08.03.2001 and order of sentence dated 12.03.2001, petitioner-Mahipal son of Sheo Narain- convict(hereinafter to be referred as “the petitioner”) has directed the present revision petition, whereby he was convicted and sentenced by the trial Magistrate on two counts (i) to undergo rigorous imprisonment for a period of one year, to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month, for the commission of offence punishable under Section 452 IPC and (ii) to undergo rigorous imprisonment for a period of one year, to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month, for the commission of offence punishable under Section 324 IPC. However, both the substantive sentences were ordered to run concurrently. The petitioner has also challenged the impugned judgment dated 12.05.2004 vide which his appeal was also dismissed by the lower appellate court. 2. The barely needed facts, relevant for disposal of the present Crl.Revision No.1221 of 2004 2 revision petition, unfolded during the trial and emanating from the record, are that in the intervening night of 04/05.02.1996 at about 10/10.30 P.M., PW3-Geeta Devi was sleeping alone in her house. The petitioner entered her house and started outraging her modesty. She raised noise and petitioner started assaulting her. PW3 caught hold of him but he inflicted knife blow on her forehead and tried to escape. As soon as, the petitioner was in a process of decamping from the place of occurrence, in the meantime, in the wake of noise, PW4-Hari Ram, brother-in-law (Jeth) of PW3 reached at the spot, who apprehended the petitioner. Thereafter, many persons including the Sarpanch of the village reached at the spot. According to the prosecution, the petitioner has left his shoes(chappals) and blanket at the place of occurrence. 3. Levelling a variety of allegations in all, according to the prosecution, that on the fateful day, the petitioner committed the offence of house tress-pass, having made preparation for assaulting PW3-Geeta Devi and used criminal force intending to outrage her modesty and inflicted a knife blow on her forehead. She reported the matter to the police on the same day. On the basis of aforesaid allegations and in the wake of statement (Mark A) of PW3-Geeta Devi, the present case was registered against the petitioner vide FIR No.22 dated 10.02.1996, on accusation of having committed the offence punishable under Sections 452 and 324 IPC by the police of Police Station Khol, District Rewari, 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 18.10.1996. 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-Dr.Mahesh Kumar Narang, who medico legally examined PW3-Geeta Devi vide MLR (Ex.PW1/A) and found one incised wound of 6cm x 0.5cm skin deep on the middle of her forehead. The lower end of the wound was extending towards medial margins of right eye, which was caused by a sharp edged weapon within 24 hours. Crl.Revision No.1221 of 2004 3 6. PW3-Geeta Devi, prosecutrix has, inter alia, maintained on oath that on the fateful day, at about 10/10.30 P.M., she was sleeping alone in her house in village Nangal, Jamalpur. The petitioner forcibly entered her house, started outraging her modesty and assaulted her and while she caught hold of him, the petitioner inflicted a knife blow on her forehead. She raised noise, which attracted PW4-Hari Ram, brother-in-law(Jeth) and PW5-Rajo Devi, sister-in-law(Jethani) of PW3. She maintained that while the petitioner was in the process of decamping, in the meantime, PW4 caught hold of him. The petitioner left his shoes (chappals) and blanket at the place of occurrence. Five-ten persons including the Sarpanch also reached at the spot. She was medico legally examined in the Primary Health Centre, Khol and the police recorded her statement. She thumb-marked the same in token of its correctness. Report Mark A was recorded in the police post. She duly recognised the petitioner in the court. 7. Sequelly, PW4-Hari Ram and PW5-Rajo Devi have maintained that PW3 was sleeping in her house alone. In the wake of noise of PW3, they went to her house. According to PW4, when he reached the place of occurrence, he noticed that the petitioner had hugged PW3. On seeing them, the petitioner inflicted injury on her(PW3) forehead and tried to fled away but he(PW4) followed and apprehended him. The shoes(chappals) and blanket of the petitioner were taken into possession from the place of occurrence. 8. Likewise, PW2-ASI Hari Kishan has also testified the investigation carried out by him and admitted that he recorded the statement of PW3 and entered the same in rapat roznamcha No.4 at 12.40 P.M. on 05.02.1996 (Mark A). On 10.02.1996, he made his endorsement (Ex.PW2/A) on the statement and sent the same to the police station for registration of the case, on the basis of which, formal FIR(Ex.PW2/B) was recorded by ASI Om Parkash. He prepared the rough site plan(Ex.PW2/C) of the place of occurrence and arrested the accused. He also took into possession shoes(chappals) and blanket of the petitioner from the place of occurrence vide recovery memo (Ex.PW2/D), which was attested by the witnesses. He recorded the statements of the witnesses and after completion of the investigation, challan was presented against the petitioner. 9. After the close of the prosecution evidence, statement of the Crl.Revision No.1221 of 2004 4 petitioner was recorded as contemplated under Section 313 Cr.P.C. He denied the prosecution evidence in its entirety and pleaded false implication. However, the petitioner did not prefer to lead any evidence in defence despite adequate opportunities. 10. The trial Magistrate, after taking into consideration the evidence on record, convicted and sentenced the petitioner, in the manner depicted herein above. 11. Sequelly, the appeal filed by the petitioner was also dismissed by the learned Additional Sessions Judge, vide impugned judgment dated 12.05.2004. 12. 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. 13. 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 FIR, which is fatal to the prosecution case 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, therefore, the crime of the petitioner is not proved. 14. Hailing the impugned judgments, on the other hand, it has been urged on behalf of the State that the alleged delay has been duly explained and the prosecution has produced sufficient reliable and trustworthy evidence on record to connect the petitioner with the offence in question and no interference is called for in this respect. 15. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, 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. 16. At the very outset, the argument of the learned counsel for the petitioner that there is a delay of five days in recording the FIR, which is Crl.Revision No.1221 of 2004 5 fatal to the prosecution case, is not only devoid of merit but misplaced as well. The bare perusal of the record would reveal that the petitioner has committed the indicated crime with the victim in the night intervening 04/05.02.1996 at about 10/10.30 P.M. She(PW3) went to the police post Kundal and reported the matter to the police vide her statement entered in rapat roznamcha No.4 dated 05.02.1996 (Mark A) at 12.40 P.M. The police arranged for her medical examination and she (PW3) was medico legally examined by PW1 on 05.02.1996 vide MLR (Ex.PW1/A). Moreover, since the honour of the family in general and PW3 in particular was involved, so, in these circumstances, a person would think hundred times to report the matter to the police to save the honour of the family. Still, there is no delay on the part of the victim/complainant to report the matter to the police. 17. It is not a matter of dispute that PW2 did not send the statement of the victim to the police station to lodge the report on the same day and he did not try to arrest the culprit immediately after the occurrence. Though, PW3 has promptly reported the matter to the police, even PW2 did not try to visit the village of injured for further investigation of the matter. Meaning thereby, all these facts proved that PW2 was somewhat negligent and did not show the required interest in the investigation of the case. Although, the matter was promptly reported by PW3 to the police, but the police remained lethargic in this respect and it was only on 10.02.1996, PW2 sent her statement to the police station for recording the FIR. Be that as it may, but inaction or inefficiency on the part of the Investigating Officer in this regard is not a ground to throw the complainant's case which is otherwise proved on record. The prompt medical examination of PW3 further lends considerable credence to the prosecution version and any such lapse on the part of Investigating Officer and the argument of learned counsel for the petitioner that there is a delay in lodging the report pales into insignificance under the present set of circumstances. The guilty person cannot possibly be allowed to escape punishment simply on account of such lapse by the Investigating Officer, specially when the case of the prosecution is otherwise proved from ocular as well as the medical evidence, as discussed herein above. 18. The next feeble argument of learned counsel that the evidence brought on record by the prosecution falls short as is required to prove a Crl.Revision No.1221 of 2004 6 criminal charge against the petitioner, again is not tenable. PW3 is none else but a victim of the circumstances. PW4 is her brother-in-law (Jeth) and PW5 is her sister-in-law(Jethani). The prosecution claimed that while PW3 was sleeping, the petitioner entered in her house and outraged the modesty of PW3. She lodged a protest and resisted in this context and apprehended him, then the petitioner inflicted a knife blow on her forehead. In the wake of her noise, PW4 and PW5 reached at the spot and witnessed the occurrence. All PW3 to PW5 gave vivid and consistent version of the occurrence. 19. The contention of the learned counsel for the petitioner that in the absence of independent corroboration, no implicit reliance can be placed on the statements of PW3 to PW5, again has no force. As is evident from the record, the prosecution story is fully corroborated by PW3 to PW5. The mere fact that the Sarpanch and other persons were not examined, who subsequently, gathered at the spot after the occurrence, would have no direct adverse bearing on the prosecution case, which is otherwise proved by oral as well as the documentary evidence. Besides, it is nobody's case that either Sarpanch or any other person actually witnessed the occurrence but in fact they reached the spot subsequently after the incident was over. 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. Again, it is not a matter of dispute that the main eye witnesses PW3 to PW5 including the victim have corroborated the prosecution version on all vital counts. Narrating the sequence of events, PW3 maintained that the petitioner entered her house, assaulted and outraged her modesty. When she resisted, then the petitioner inflicted a knife blow on her forehead. She raised noise which attracted PW4 and PW5. PW4 apprehended the petitioner at the spot. All the witnesses were cross- examined at length but no substantial material could be elicited in searching cross-examination to dislodge their testimonies. Although, the statement of PW3 is to be believed as true in the same manner as the evidence of a stamped/injured witness, but, in the instant case, her statement finds further Crl.Revision No.1221 of 2004 7 full corroboration from the statements of PW4 and PW5 on all counts as well. 21. Not only that the incident of the prosecution is fully proved by ocular evidence, but medical evidence also corroborates it, where PW1 found one incised wound with a sharp edged weapon on the person of PW3. The recovery of shoes(chappals) and blanket of the petitioner from the spot also lends credence to the prosecution story and points an accusing finger towards the petitioner in this direction. The investigation was duly testified by PW2. Hence, the evidence of PW3 to PW5 is reliable and trustworthy. Therefore, there is ample evidence on record against the petitioner. 22. Learned counsel for the petitioner then sought to argue that the petitioner has been falsely implicated and the story of the prosecution is highly improbable. Meaning thereby, 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. The courts below recorded a finding of fact based on the evidence that the petitioner entered the house, outraged the modesty and inflicted knife injury on the forehead of PW3. Such finding of facts based on the evidence cannot possibly be interferred while exercising the limited revisional jurisdiction of this Court. 23. Faced with the situation, learned counsel appearing on behalf of the petitioner, has fairly acknowledged that she 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 the legal aspect that this Court cannot re-appreciate and re-evaluate the evidence brought on record in exercise of its revisional jurisdiction. 24. However, learned counsel for the petitioner submitted that the petitioner is not a previous convict and since, he has suffered the agony of long trial, so, the benefit of probation of Offenders Act be granted to him. 25. On the other hand, learned State Counsel has urged that keeping in view the manner of the occurrence and heinous crime committed by him, the petitioner is not entitled for the benefit of probation. 26. Having regard to the rival contentions of learned counsel for the parties, I am of the view that the petitioner is not entitled for the benefit of probation. The perusal of evidence brought on record would reveal, not only that the petitioner forcibly entered the house where PW3 alone was Crl.Revision No.1221 of 2004 8 sleeping on the fateful day at 10/10.30 P.M., he assaulted and outraged her modesty as well. This is not the end of the matter. When PW3 lodged a protest and resisted the advances of the petitioner, then he took out a knife and inflicted injury on her forehead, extending towards right eye, which is a vital part. Moreover, there was ample material/evidence on record, but fortunate for the petitioner and unfortunate for the complainant that the trial Magistrate did not frame the charge against the petitioner under Section 354 IPC, nor the prosecution pressed into service this charge against him for the reasons best known to it. The petitioner was charge-sheeted and convicted only under Sections 452 and 324 IPC (not under Section 354 IPC). The courts below have already taken a lenient view against the petitioner in this connection. Therefore, the contrary arguments of the learned counsel for the petitioner 'stricto sensu' deserve to be and are hereby repelled in the obtaining circumstances of the case. 27. No other point worth consideration has been urged or pressed by the learned counsel for the parties. 28. In the light of aforesaid reasons, the impugned judgments of conviction and order of sentence are maintained. As there is no merit, therefore, the revision petition is hereby dismissed. February 09, 2010 ( Mehinder Singh Sullar) seema Judge