IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.Revision No. 72 of 2011 Date of Decision 14 th July ,2011 ________________________________________________________ Pritam Singh ….Petitioner. Versus State of H.P ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ________________________________________________________ For the Petitioner: Mr. N.K. Bhardwaj, Advocate. For the Respondent: Mr. P.K. Sharma, Addl. A.G. with Ms. Shubh Mahajan, Deputy A.G. ___________________________________________________________ ___ Dev Darshan Sud, J (oral) The petitioner challenges his conviction for offence under Section 354 IPC for assaulting, molesting and outraging the modesty of the prosecutrix, who at the relevant time was a student of 10th class. 2. The prosecution case was that on 15.1.2004 she was going to school. At around 8 AM in the morning when she reached the jungle near Kaligarh, she noticed that the accused was stalking her. He overtook her and stopped her after some distance. Thereafter he caught hold of the prosecutrix from both arms and pushed her to the ground. She tried to 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. save herself and in the struggle her clothes especially her sweater was torn. She shouted for help but the petitioner gagged her mouth. She extricated his hand from her mouth after a brief struggle and shouted for help. Upon this, Lali Devi, who was cutting fuel wood at some distance, came and rescued her from the clutches of the petitioner. 3. The learned trial Court on the evidence on record convicted the petitioner for offence under Section 354 IPC and sentenced him to undergo simple imprisonment for six month and to pay a fine of ` 2,000/- and in default, to further undergo simple imprisonment for a period of one month. These findings/conviction were challenged by the petitioner in appeal. The learned Appellate Court on reappraisal of the entire record, affirmed the conviction and sentence of the petitioner. 4. At this juncture I need to notice that the accused has examined his father Daulat Ram as DW1 who stated that Begam Dass the father of the complainant is from his village and he is not on visiting terms with him because 4/5 years back he has asked Begam Dass to solemnise his daughter’s marriage with his son. It seems that negotiations were broken down on which Begam Dass told him that he would take revenge. 5. These findings have now been assailed by the petitioner in this revision petition. I have heard learned counsel appearing for the petitioner as also the learned Additional Advocate General. 6. The points, in defence, as urged for consideration before the learned trial Court were reiterated before the learned Appellate Court and are now being submitted before this Court. 7. On the evidence on record as considered by the two Courts below I have no doubt in my mind that the version of prosecutrix cannot but be accpeted. The defence set up is far fetched that the father of the prosecutrix wanted to wreak personal vengeance, cannot be accepted. 2 Assuming that the father of prosecutrix was motived by personal vendetta and wanted to settle personal scores, I fail to comprehend as to how he can use his young daughter as a tool. We live in the Indian Society where no woman will be used by a person for the purpose of wreaking personal vengeance. 8. On the aspect of sentencing learned counsel appearing for the petitioner submits that the petitioner is aged about 28 years and is settled in his village. He is an agriculturist. He will be stigmatized and in case he is sentenced his life will be ruined. Report of the Probation Officer was called for. On consideration of the report, I am satisfied that the petitioner belongs to a respectable and peace loving family. He is sociable and mixes up with the village community and others. 9. Learned Additional Advocate General refers to the judgment of the Andhra Pradesh High Court in Ippili Trinadha Rao vs. State of Andhra Pradesh, 1984 Cri. L.J. 1254 to urge that the Court should not release the petitioner by giving the benefit under the Probation of Offenders Act. In particular, he relies upon the decision: 7. No doubt the intendment and the object of the Probation of Offenders Act is in tune with reformative trend of modern criminal justice to rehabilitate the young offenders as useful citizens. It therefore animates that instead of sending the hardened criminals and to relieve of deleterious effect of jail life, it would be expedient to reform him by extending kindly probation during a specified period so that it could enable him to reform himself and be of a good and self reliant citizen so that the meance of perpetrating the crime in the society would be avoided. It is therefore a social persuasive defence to extend whenever possible the key note of modern penology viz., reformation of the delinquent. But the extension of that principle should be subject to the over riding imperative of the interest of the society as a whole. It is common knowledge that of late the acts of committing crime on weaker section viz., women is rampant and the prevention 3 of committing such crimes is becoming a problem. It is now a national debate as to the means to be adopted in arresting the commission of the crime on women. If the beneficial provision of the Probation of Offenders Act is extended to the offenders like one punishable under S. 354 I.P.C., for outraging the modesty of a teen-aged girl and of like offences on women, would not only encourage further escalation of the crime, but also would become difficult to check or arrest the perpetration of those crimes and imperil the modesty of several innocent girls. Under those circumstances, the court has to be circumspect in extending the beneficial provision to the offences committed on the weaker section, viz. Women. If the Commission of these crimes remain unchecked then it would threaten the social harmony and security of free movement of women-folk and thereby danger to the security of the society itself. Under those circumstances, I am of the view that the Court would be slow if not loathe to extend the benefit of the provisions of the Probation of Offenders Act to such type of offences. 8. Sri Satyanarayana learned counsel for the petitioner contends that even though from the statement made by the petitioner under S. 313 Cr.P.C. that he is above 21 years, he also filed a certificate in this court to show that the petitioner’s date of birth is 1-6-1961. But I am not inclined to take this certificate into consideration because it is not made part of the record nor proved as per law. Therefore I cannot take notice of the same. But none-the-less the court has to take into consideration the nature of the offence committed and the character of the offender and other relevant circumstances. Sri Satyanarayana lays main emphasis upon the character of the offender alone. Undoubtedly it is one of the circumstances to be taken into consideration. But the nature of the commission of the crime also is one of the important factors to be kept in view when the Probation of Offenders Act is intended to be applied. In view of the facts and the circumstances of the case, when the petitioner has outraged the modesty of 16 years old girl, but for the intervention of P.W. 3 and 4, perhaps more serious crime would have been committed upon P.W. 1. Under those circumstances, I am not inclined on these facts to extend the benefit of the provisions of the Probation of Offenders Act to 4 the petitioner. But at the same time I am also of the view that the deterrence of the commission of the crime would be met by evolving a suitable therapy of sentencing technic to the changing circumstances. To prevent the commission of the crime, in my view, one of the methods is, instead of making the petitioner to undergo imprisonment in the midst of hardened criminals, ends of justice would be met if I sentence him to undergo the sentence for seven continuous working days by sitting during the entire working hours in the court of the Judicial Magistrate of First Class, Srikakulam, so that he will be exposed to the public gaze and thereby it will not only be a deterrance to him from repeating the crime, but also acts as an antidote upon persons having similar propensity to crime to desist therefrom. Under those circumstances, the conviction is confirmed and the sentence of imprisonment is modified as indicated above. The sentence of fine is confirmed. The above sentence shall be gone within one month from the date of receipt of this order by the trial Court. The revision case is dismissed with the above modification in the sentence of imprisonment.” (at p. 1256-1257) 10. I have also considered the judgment of the Supreme Court in Kanwar Pal Singh Gill vs. State (2005) 6 SCC 161 on this point. 11. Taking into consideration the totality of the facts and circumstrances of the case, the young age of the petitioner and the fact that his social standing has taken a mauling, he has to marry and settle in life, I deem it proper in case benefit of Section 4 of the Probation of Offenders Act is granted to the petitioner. It is accordingly directed that (a) sentence of imprisonment imposed upon the petitioner is set aside; (b) the petitioner shall deposit an additional amount of ` 25,000/- before the learned trial Court within a period of three months from today and on such deposit being made, the same shall be paid to the victim; (c) the petitioner shall execute a personal bond in the sum of ` 50,000/- with one surety in the like amount to the satisfaction of the learned trial Magistrate 5 undertaking to keep peace and maintain good behaviour and not to indulge in any criminal activity. He shall undertake to appear before this Court to receive any sentence if so directed. The bond shall be valid for a period of two years. He shall be regularly supervised by the Tehsil Welfare Officer, Mandi. If he will be found involved in any anti-social activity the matter shall be reported to this Court forthwith. It is further directed that in case of violation of the terms and conditions of the bond or of non-deposit of the amount, the order of imprisonment shall revive and shall be duly and faithfully executed by the learned trial Court. Petition stands disposed of. July 14th, 2011 (Dev Darshan Sud ms Judge 6