Criminal Revision No.2713 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2713 of 2008 Date of decision : 10.11.2009 Saroj Bala ....Petitioner Versus State of Haryana and others ....Respondents **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Anuj Sharma, Advocate for the petitioner. Mr. S.S.Patter, Sr. Deputy Advocate General, Haryana Mr. Rakesh Dhiman, Advocate for respondent no.2. S. D. ANAND, J. Respondent no.2, hereinafter referred to as the accused, was convicted by the learned Trial Magistrate under Section 452 and 354IPC on a charge that he went over to the cot of the petitioner- prosecutrix on the night intervening 28-29.5.1999and tried to outrage her modesty by reaching for her breast. The prosecutrix , whose husband is posted out in the Army, was asleep in the courtyard of her house, alongwith her mother-in-law and minor daughter aged about 9 years. On getting up, she raised a raula which woke up her mother-in-law and her daughter. On seeing them wake up, the accused fled the spot by scaling the wall. The prosecutrix and her mother-in-law tried to prevent escape by catching hold of feet of the accused but he escaped after giving them Criminal Revision No.2713 of 2008 -2- **** a kick blow. The accused was sentenced to undergo RI for a period of one year and to pay a fine of Rs.500/- for the offence under Section 452 IPC. Qua the offence under Section 354IPC, he was directed to undergo RI for a period of six months. Both the sentences were directed to run concurrently. In appeal, the learned Additional Sessions Judge upheld the finding of conviction but allowed the prayer of the accused for his release on probation of good conduct. The prosecutrix-petitioner is in revision against the order granted by the learned Additional Sessions Judge. The learned counsel for the petitioner-complainant argues that the accused obtained dilution on point of sentence by making a false presentation that he had not committed “any such crime” during the period of nine years for which duration he faced trial. Besides that averment, what weighed with the learned Trial Court was the long pendency of the trial for a period of about 9 years. Since those facts were not refuted by the Public Prosecutor, the learned Additional Sessions Judge formed an opinion that accused deserved being released on probation of good conduct. The order granting the release of accused on probation of good conduct deserves to be set at naught for the reasons indicated hereunder:- It may be noted, at the very outset, that the accused did not challenge the finding of conviction on merits in the course of appeal before the learned Additional Sessions Judge, Jhajjar. In that Criminal Revision No.2713 of 2008 -3- **** view of things, the learned counsel appearing on behalf of the accused is not on a firmer footing when he tries to argue that there was not enough evidence on the file to prove the charge. Even otherwise, it is apparent from the record that the statement made by the prosecutrix was fully supported by her mother-in-law Murti Devi. Insofar as the minor daughter of the prosecutrix-complainant is concerned, she was given up as unnecessary. There is plethora of law to the effect that it is the quality of evidence which is material for a judicial adjudication and the number of witnesses is irrelevant for the purpose aforementioned. The accused had raised a plea of alibi at the trial. The plea raised by him that he was, infact, with his in-laws at the relevant point of time. In view of the nature of plea, the accused and members of in-laws family were the best circumstanced to own it. It is interesting to find that neither accused entered the witness box, as his own witness, to buttress the plea of alibi nor did he examine any member of his in-laws family to corroborate it. Three DWs examined only gave a general statement to the effect that accused was not available in the village on that date. Their statements cannot be said to be credible as their testimony is verbal in character, particularly when the accused did not enter the witness box and also did not examine any member of his in-laws family to corroborate the plea of alibi. Even otherwise, there is force in the plea of the learned counsel for the petitioner-complainant that even during the time the Criminal Revision No.2713 of 2008 -4- **** trial was in progress, the accused assaulted the petitioner- complainant on 3.10.2000 with an intention to outrage her modesty. In support of the averment, learned counsel has today placed on record certified copy of the charge sheet vide which the learned Chief Judicial Magistrate, Jhajjar, charge sheeted the accused in case FIR No.458 dated 7.10.2000 under Section 354 IPC, Police Station, Jhajjar. Faced with the predicament of having to explain the fact aforementioned, learned counsel appearing on behalf of the accused argues that no finding of indictment has been recorded in that case and the mere pendency thereof cannot run to the detriment to the accused as there is presumption of innocence in his favour till he is convicted by the Court. As already noticed, the learned Additional Sessions Judge (in granting the release of accused on probation) was persuaded by the fact that “accused had not committed any such crime” during the last nine years the case had been pending trial. In this case, the date of occurrence was 25.8.1999. In case FIR No.458 dated 7.10.2000, the occurrence pertains to 3.10.2000. Even if the State did not controvert it, it was to the notice of the accused himself that he was facing a prosecution on a similar charge pertaining to an occurrence dated 3.10.2000 and the allegation was that he had assaulted this very prosecutrix on 3.10.2000 intending to outrage her modesty. It was not appropriate for the accused to have made that averment which was factually incorrect to his notice. The Criminal Revision No.2713 of 2008 -5- **** plea raised by the learned counsel about an inference of innocence is neither here nor there. In the circumstances of the case, I have no hesitation in holding that the learned Additional Sessions Judge, Jhajjar did not act in accordance with law by ordering the release of accused on probation of good conduct. There are certain apparent facts which must go into making of an order on point of sentence. By the very nature of things, sentencing assumes paramount importance in the given circumstances of the case. The sentence awarded must proceed on correct factual averments. The Court must also ensure that the sentence imposed corresponds to the gravity of charge for which the accused has been indicted. If the charge, for which an accused is convicted, is grave but the sentence awarded is farcical, it would defeat the very purpose of adjudicatory judicial exercise. In this case, the accused had been indicted on a charge of having entered the house of the prosecutrix during unearthing hours and tried to outrage her modesty by reaching for her breasts. The husband of the prosecutrix was an Army man and on an out-station posting. It was a house occupied by only females at that point of time inasmuch as female occupants thereof were the prosecutrix and her mother-in- law, besides former's nine years female child. All these factors added to the gravity of the charge for which the accused was indicted. At the same time, it cannot be wished away that the accused faced the ordeal of trial for a period of 9 years. He is a Criminal Revision No.2713 of 2008 -6- **** married man with two married daughters and a grown up son. In the circumstances of the case, I am of the opinion that interests of justice would be served if the accused is directed to undergo RI for a period of three months each for the offences under Section 452 and 354 IPC. The amount of fine imposed by the learned Trial Court for the offence under Section 452 IPC shall stay intact. The sentences shall run concurrently. The period of sentence already undergone by the accused shall be set off against the sentence awarded to him. Disposed of accordingly. November 10, 2009 (S. D. ANAND) Pka JUDGE