HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 468 of 2003 Decided on: 7.10.2010 Chand @ Jagdish ……… Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes For the appellant: Mr.N.K. Thakur, Advocate. For the respondent: Mr.J.S.Guleria, Assistant Advocate General. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment dated 30.8.2003/1.9.2003 passed by the learned Sessions Judge, Chamba, vide which, the appellant was convicted and sentenced to undergo RI for a period of one year and to pay a fine of Rs.5,000/- under Section 354 of the Indian Penal Code. In default of payment of fine, the appellant was to further undergo SI for a period of three months. However, the appellant was acquitted of the charges under Sections 376 and 511 of the Indian Penal Code. 2. Briefly stated, the facts of the case are that on 4.3.2000, the complainant Miss Chino Devi, aged about 19 years, had gone to the Gharat to get her wheat grinded. The accused entered the Gharat with an intent to outrage her modesty. He embraced her and started pressing her breasts and other private parts. The complainant resisted the acts of the accused, but he did not leave her and broke the string of ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - her Salwar. With great difficulty, she managed to escape and her bangles were broken in this process and she sustained injuries on her arms. She narrated the incident to her brother and on the next morning, the report was lodged with the police. The case was registered and the accused was tried for the offences punishable under Sections 354, 376 & 511 of the IPC leading to his conviction under Section 354 of the IPC only, as detailed above. 3. Notice of the appeal was issued to the respondent/State. 4. I have heard Mr.N.K. Thakur, learned counsel for the appellant, and Mr.J.S. Guleria, learned Assistant Advocate General, for the respondent, and have gone through the record of the case. 5. The main submissions made by the learned counsel for the appellant were that the appellant had been wrongly held guilty by the learned trial Court, since there were various contradictions and infirmities in the prosecution case. It was also observed that the learned trial Court had not considered the question of releasing the appellant under the Probation of Offenders Act and no reasons have been given as to why this benefit cannot be accorded to the appellant and as such, the appeal is liable to be accepted. 6. On the other hand, the learned Assistant Advocate General for the State had supported the impugned judgment for the reasons given therein. 7. On appraisal of the record of the case, it is clear that the appellant was held guilty under Section 354 of - 3 - the Indian Penal Code, as mentioned above. The learned trial Court, after hearing arguments of both the parties, simply observed that keeping in view the facts and circumstances of the case, the convict deserves not to be treated leniently. The learned trial Court had not considered the question as to why the benefit of Probation of Offenders Act should not be given to the appellant. It is not mandatory to give the benefit under the Probation of Offenders Act, but the Court has to mention the reasons for declining this benefit. In case the Court decides to grant the benefit and releases the appellant under Section 4 of Probation of Offenders Act, it has to consider the report of Probation Officer, if any, which must be called as per decision of this Court in State of Himachal Pradesh versus Shakti Prashad, 1984 I.L.R. (Himachal) 168. 8. Coming to the non-recording of reasons, I may make a reference to a decision of the Apex Court in Chandershwar Sharma versus State of Bihar, 2001(3) Crimes 45 (Supreme Court), wherein it was held by their Lordships that a mandatory duty is cast upon a Magistrate to consider the question of applicability of Section 360 of the Code of Criminal Procedure. It was held that recording of reasons is mandatory in nature. 9. In view of the law laid down by the Apex Court, it is necessary for the learned trial Court to record the reasons as to why the benefit of Probation of Offenders Act is not being accorded in favour of the appellant and since that has not been done, the findings of the learned trial Court sentencing the appellant to undergo imprisonment, - 4 - as detailed above, is liable to be set aside. The learned trial Court shall consider this question of granting the benefit of Probation of Offenders Act or Section 360 of the Code of Criminal Procedure, as the case may be. However, it is not mandatory for the learned trial Court to grant the benefit under these provisions, but the Court has to give the reasons for not according the benefit in view of the above decisions. I may mention herewith that no opinion is being given in regard to the findings of the learned trial Court holding the appellant guilty and that question is kept open which shall be considered in case an appeal is preferred by the appellant. The appeal filed by the appellant is accepted to this extent only. 10. In view of the above discussion, the appeal is accepted partly and the judgment passed by the learned trial Court convicting the appellant is set aside. The learned trial Court shall hear the parties afresh on the point of sentence and then pass appropriate orders, as mentioned above. The fine, if deposited by the appellant, shall remain in deposit and shall be subject to the final order that may be passed by the learned trial Court. Parties are directed to put up appearance before the learned trial Court on 15.11.2010 and the learned trial Court shall try to dispose of the case within three months from the date fixed. The Registry is directed to send the records of the case alongwith a copy of this judgment to the learned trial Court so as to reach the said Court before the date fixed. 11. The appeal stands disposed of accordingly. Oct.7, 2010. (V.K. Ahuja), (TILAK) Judge