IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.802 of 2002 Date of decision: 22nd March, 2010 Tej Singh … Petitioner Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.S. Sihota, Senior Advocate with Mr. B.R. Rana, Advocate for the petitioner. Mr. Manish Deswal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner was named as an accused in case FIR No.271 dated 17.08.1995 registered at Police Station Old Faridabad under Sections 457/354 IPC. The Court of Judicial Magistrate (1st Class), Faridabad vide its judgment dated 14.10.1999 found the petitioner guilty and vide its separate order dated 15.10.1999 sentenced him to undergo rigorous imprisonment for a period of three years under Section 457 IPC. The petitioner was also sentenced under Section 354 IPC to undergo rigorous imprisonment for a period of two years. He was ordered to pay a fine of Rs.1000/- on both counts, and in default of payment of fine to further undergo rigorous imprisonment for six months. Both the sentences were ordered to run concurrently. Criminal Revision No.802 of 2002 Aggrieved against the same, petitioner had filed an appeal. The lower appellate Court while dismissing the appeal vide order dated 02.04.2002, maintained the conviction, but, reduced the substantive sentence to one year rigorous imprisonment on both the counts. Counsel for the petitioner at the outset has stated that he will not be able to assail the conviction of the petitioner in the present case. It is further brought to my notice that the petitioner has undergone 2 months and 11 days of actual sentence out of the sentence of one year awarded to him. Counsel has prayed that the sentence awarded upon the petitioner be reduced to already undergone. Due to the peculiar facts of the case, this Court is inclined to accept the prayer made by counsel for the petitioner. Therefore, facts of the case can be briefly noticed as under: Petitioner was charged by the Court of Judicial Magistrate (1st Class), Faridabad, which stated that on the night intervening 16th and 17th August, 1995 at midnight, the accused had entered into the house of the prosecutrix (whose name has been withheld to protect her identity) and made an attempt to outrage her modesty. The petitioner was charged for offence under Section 354 and 457 IPC. The prosecutrix PW-3 made statement Ex.PW3/A to ASI Deen Dayal (not examined by the prosecution). The prosecutrix stated that about eight years ago, she was married with Mool Chand. She was having three children. On the night intervening 16th and 17th August, 1995, after taking her meals, she had retired to her bed. Her husband was sleeping on the adjoining cot and her children were sleeping on the floor. As the electricity had gone, the door of the room was kept open. At about 12.30 a.m., the accused, who was a neighbour, came inside and laid along with the prosecutrix complainant. 2 Criminal Revision No.802 of 2002 He started fondling with her breast. She woke up and cried for help. Her husband also woke up and caught hold of the accused, but the accused escaped. The prosecution has only examined Mool Chand husband, Mawasi Ram father-in-law and the prosecutrix, as PW-1, PW-2 and PW-3 respectively. The accused had set up a plea that there was a dispute with regard to the partition, therefore, a case has been falsely registered against him. Counsel for the petitioner has submitted that even though the version of the prosecution that the accused in the night will enter the house of the prosecutrix, especially when her husband is sleeping on the adjoining cot and fondle with her breast, is improbable, yet he will not assail the conviction of the petitioner on the ground that both the courts below have not believed the defence version. Learned counsel has submitted that both the courts below have placed implicit reliance upon the testimony of the prosecutrix. Even though, no draftsman, Investigating Officer or any other witness was examined to corroborate the testimony of the prosecutrix. A perusal of the judgments of both the courts below reveals that the thrust argument of the defence counsel was that there were a number of discrepancies in the testimony of defence witnesses, therefore, in the peculiar circumstances of the case, this Court will also not be inclined to re-appreciate the entire evidence. However, keeping in view the fact that in the present case, occurrence had taken place in the month of August, 1995 and petitioner has undergone 2 months and 11 days of 3 Criminal Revision No.802 of 2002 actual sentence out of the sentence of one year awarded to him, this Court is of the view that no useful purpose will be served by sending the petitioner behind the bars at this stage. Therefore, the sentence awarded upon the petitioner is reduced to already undergone. With the aforesaid modification in sentence, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE March 22, 2010 rps 4