Crl.Revision No.2036 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No.2036 of 2004 Date of Decision:01.02.2010 Bhanna .....Petitioner Versus State of U.T., Chandigarh .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Argued by: Mr.Suresh Pal, Advocate, for the petitioner. Mr.Ram Pal Verma, Advocate, for Mr.Rajiv Sharma, Advocate, for the respondent. **** MEHINDER SINGH SULLAR, J.(Oral) Assailing the impugned judgments of conviction and orders of sentence, Bhanna-convict-petitioner (hereinafter to be referred as “the petitioner”) has directed the present revision petition, invoking the provisions of Section 401 Cr.P.C. 2. The brief facts, relevant for disposal of the present revision petition unfolded during the trial and emanating from the record are that, on 08.08.2001, a police party headed by PW4-ASI Harminderjit Singh was present near kerosene pump, Bapu Dham Colony, Sector 26, Chandigarh (spot), in connection with the patrol duty. PW3-Ghaseeta Ram complainant submitted an application (Ex.PB) stating therein that on 08.08.2001 at about 6.00 P.M., as soon as, he was going to fetch water from a public tap at some distance from his hut (jhuggi) along with his daughter-in-law, PW2-Rekha Devi, in the meantime, the petitioner came there and gave a slap on the right thigh of PW2 with bad intention. He also uttered obscene words that she should have a look on him with love. When PW2 lodged a protest in this respect, then the petitioner started hurling abuses to her. Thereafter, on Crl.Revision No.2036 of 2004 2 seeing the gathering of people, the petitioner decamped from the place of occurrence. PW4 made his endorsement (Ex.PB/1) on the complaint (Ex.PB) and sent the same to the police station for registration of the case which formed the basis of FIR (Ex.PB/2). 3. Levelling a variety of allegations in all, according to the prosecution that on 08.08.2001, the petitioner used criminal force intending to outrage the modesty of PW2. On the strength of aforesaid allegations, the present case was registered against the petitioner vide FIR No.141 dated 08.08.2001 on accusation of having committed the offence punishable under Section 354 IPC by the police of Police Station, East Chandigarh, in the manner indicated herein above. 4. Having completed all the codal formalities, the petitioner was charge-sheeted for the commission of aforesaid offence by the trial Magistrate vide order dated 23.11.2001. 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-Constable Sube Singh, who had taken ruqa to the police station for registration of the case. 6. PW2 and PW3, inter alia, maintained on oath that on 08.08.2001 at about 6.00 P.M., they were going to fetch water, the petitioner came there. He slapped on her (PW2) right thigh and stated that some time she should see him with love. PW2 raised a protest and then the petitioner started abusing her. She also maintained that prior to the present incident, the petitioner also molested her. Her statement was recorded by the police. PW3-complainant also corroborated the contents of his complaint (Ex.PB). PW2 and PW3 have reiterated the prosecution version on all vital counts. PW4-ASI-Harminderjit Singh has testified the investigation carried out by him in this case. 7. After the close of the evidence, the statement of the petitioner was recorded as contemplated under Section 313 Cr.P.C. The petitioner denied the prosecution evidence in its entirety and pleaded false implication. However, he did not prefer to lead any evidence in defence despite adequate opportunities. 8. The trial Court after taking into consideration the evidence on Crl.Revision No.2036 of 2004 3 record, convicted and sentenced the petitioner to undergo rigorous imprisonment for a period of three months, to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of fifteen days, for the commission of offence punishable under Section 354 IPC vide impugned judgment of conviction and order of sentence dated 09.05.2002. 9. Aggrieved by the impugned judgment of conviction and order of sentence, the petitioner preferred the appeal which was also dismissed by the appellate court vide impugned judgment dated 23.09.2004. 10. 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. 11. Learned counsel for the petitioner has argued that the story of the prosecution is highly improbable, its evidence is discrepant, not reliable and the petitioner has been falsely implicated. In all, according to the learned counsel for the petitioner, the evidence brought on record by the prosecution is discrepant and is not sufficient to base the conviction of the petitioner. 12. Hailing the impugned judgments of conviction, the learned State Counsel has argued that the version of the prosecution is fully corroborated by PW2-prosecutrix and complainant-PW3 and no interference is warranted in this respect. 13. After hearing the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after considering the matter deeply, to me, 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 here-in-below. 14. As is evident from the record, the prosecution version is very natural that PW2 and her father-in-law(PW3) had gone to fetch water from the tap, when the petitioner slapped on her(PW2) right thigh and outraged her modesty in open public view. Narrating the sequence of events, PW2 and PW3 have categorically maintained on oath that the petitioner outraged the modesty of PW2. They corroborated the prosecution version on all vital counts. They gave consistent version of the incident. They were cross- Crl.Revision No.2036 of 2004 4 examined at length but no substantial material could be elicited in cross- examination to dislodge their testimonies. The complaint (Ex.PB) which formed the basis of FIR was fully proved by PW3. No material much less cogent is forthcoming on record as to why they would falsely implicate the petitioner in such cases where the honour of, family in general and PW2 in particular, was involved. 15. The other feeble argument of the learned counsel for the petitioner that no independent witness was joined by the Investigating Agency, which casts shadow of doubt on prosecution version, is not only devoid of merit but misplaced as well. Because, it is nobody's case that any other public witness was present at the time of actual commission of crime. No doubt, PW4 admitted that some persons have gathered when PW3 submitted the complaint. The subsequent presence of such persons at the time of recording the complaint has got no relevancy and has got no adverse effect on the prosecution case in any manner. Because, no other person had witnessed the actual commission of offence. Rather the prosecution case is that the petitioner outraged the modesty of PW2 in the presence of PW3, who have duly supported the prosecution version in its entirety. Therefore, if the entire evidence as discussed herein above is put together, then conclusion is inescapable that the crime was committed by the petitioner in the manner projected by the prosecution, which is duly proved by the reliable, cogent and trustworthy evidence as depicted here-in-above. 16. Faced with the situation, learned counsel appearing on behalf of the petitioner has fairly acknowledged that he 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 this Court cannot re-appreciate and re-evaluate the evidence brought on record in exercise of its revisional jurisdiction. 17. However, learned counsel for the petitioner contended with some amount of vehemence that the petitioner has already suffered a protracted long trial, is a first offender and is ready to compensate the victim in this context. The argument is that there are sufficient grounds and the lower Appellate Court ought to have granted the benefit of probation to the petitioner but it neither granted the same benefit nor assigned any cogent reasons in this respect, as envisaged under Sections 360/361 Cr.P.C. Crl.Revision No.2036 of 2004 5 18. In order to substantiate his arguments, learned counsel for the petitioner has placed reliance on the judgments of the Hon'ble Apex Court in cases reported as Isher Das Versus The State of Punjab, AIR 1972 SC 1295, Sitaram Paswan and another Versus State of Bihar, AIR 2005 SC 3534 and of this Court in Parkash Versus State of Haryana 1986 (1) Recent Criminal Reports 94, Bijender Versus State of Haryana, 1996(1) Recent Criminal Reports 192, Pakhar Singh Versus State of Punjab 2007 (1) Recent Criminal Reports (Criminal) 396 and Hamir Singh Versus State of Punjab 2009(3) Recent Criminal Reports (Criminal) 64. 19. Although, learned State Counsel has neither disputed the factual matrix nor the law laid down in the aforesaid judgments, but he urged that the petitioner is not entitled to the benefit of probation. 20. Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, while Section 361 Cr.P.C. posits that where in any case, the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, but has not done so, it shall record in its judgment the special reasons for not having done so. Meaning thereby, the Court while not granting the benefit of probation of Offenders Act, has to record special reasons. But, in the instant case, the courts below did not assign any cogent reasons and just bye-passed the mandatory provisions on unsustainable grounds in this respect. 21. Moreover, Section 4 of the Probation of Offenders Act, 1958 (hereinafter to be referred as 'the Act”), postulates that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour. Crl.Revision No.2036 of 2004 6 22. Again, it is not a matter of dispute that the crux of the law laid down in the aforesaid judgments is that the non obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have overriding effect, shall prevail if the conditions depicted therein are fulfilled and the benefit of probation should be granted to the petitioner under such circumstances. 23. Sequelly, In Parkash's case(supra), the accused, who was a young man of 20 years of age at the time of commission of offence, had committed assault on the prosecutrix therein while she was cutting grass in her fields. The accused came from behind the prosecutrix, took her in his grip and outraged her modesty. She suffered bruises on her breasts, arms, hands and feet. 24. Similarly, in Bijender’ case (supra), the accused, who was below 21 years of age at the time of commission of offence, had been convicted for the offence under Section 354 IPC and sentenced to undergo rigorous imprisonment for two years. He was facing trial for a period of five and a half years and was not a previous convict. 25. Likewise, in Hamir's case(supra), the accused was 18 years of age, entered the house of the complainant and outraged her modesty. He was convicted under Sections 451 and 354 IPC. The complainant and the accused belong to the same village. It was ruled that the accused had committed the offence which was definitely against the accepted morals of our society. But, it cannot be said that it is a gone case never to be reclaimed back by the civilized society. Therefore, under the similar set of circumstances, as in the instant case, the accused were granted the benefit of probation of Offenders Act. The ratio of above-mentioned judgments mutatis-mutandis is applicable to the facts of the present case. 26. Having regard to the rival contentions of the learned counsel for the parties, having gone through the circumstances emanating from the record and after considering the matter deeply, to mind mind, it would be expedient in the interest of justice, if the benefit of probation is granted to the petitioner, inter alia, on the following grounds:- i) Petitioner was a young boy of 25 years of age at the time of alleged offence. ii) The case was registered against the petitioner on Crl.Revision No.2036 of 2004 7 08.08.2001. He has suffered the agony of protracted trial for the last more than eight years. iii) The petitioner and the PWs are the residents of the same colony and may live in peace. iv) Petitioner is a first offender and there is no history of his previous conviction. v) The antecedents and credentials of the petitioner are such that he has not been found involved in any other case. vi) He has been leading a life of honest peaceful citizen. vii) He has already undergone 1½ months, a considerable period of his sentence of three months. viii) He is ready to compensate the victim in this respect under section 5(a) of the Act. ix) The latest trend of penology is not punitive but reformatory. 27. Such, thus, being the state of law and facts on record and taking into consideration the law laid down in the aforesaid judgments, the period of agony of protracted trial, age and antecedents of the petitioner and totality of other facts and circumstances emerging out of the record, as discussed here-in-above, to me, it would be expedient and justice would be squarely met and sub-served if a lenient view in the matter of sentence is taken against the petitioner, inasmuch as, no useful purpose would be served in sending him again to jail to serve out the remaining period of sentence and instead of sending him to prison, he be released on probation in the obtaining circumstances of the case. 28. In the light of aforesaid reasons, the impugned judgments of conviction are hereby maintained. Be that as it may, however, the petitioner is directed to be released on probation on his furnishing personal bond (within two months) in the sum of Rs.20,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the condition that he would keep peace and be of good behaviour, for a period of two years from the date of passing of this order. He is further directed to pay a sum of Rs.10,000/- (within two months) as compensation, which shall be paid to Crl.Revision No.2036 of 2004 8 the victim as contemplated under Section 5(a) of the Act. In case, he is found to be indulged in such like illegal activities and failed to pay the aforesaid compensation, then the sentence awarded to him by the courts below shall stand revived. 29. No other point worth consideration has been urged or pressed by the learned counsel for the parties. 30. For the reasons recorded above, the revision petition stands disposed of accordingly. February 01, 2010 ( Mehinder Singh Sullar) seema Judge