Punjab-Haryana High Court
Satbir @ Sattan vs State Of Haryana on 6 August, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.345-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.345-SB of 2003
Date of Decision:-6.8.2013
Satbir @ Sattan .....Appellant
Versus
State of Haryana .....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Deepak Chaudhary, Advocate (amicus curiae)
for the appellant.
Mr.Gourav Verma, AAG Haryana for the State.
MEHINDER SINGH SULLAR , J. (Oral)
The compendium of the facts and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of the instant criminal appeal & emanating from the record, as claimed by the prosecution, is that on 16.4.2000, the parents of prosecutrix (name withheld) had gone for harvesting the crop in their fields. She was alone present in her house. At about 7 P.M., as soon as, she was cooking the meals, in the meantime, appellant-convict Satbir @ Sattan son of Ami Chand (for brevity "the appellant") forcibly entered in her house and pressed her breasts with both the hands with an ulterior motive. When he tried to kiss, then he was pushed aside by her. The appellant was stated to have broken the string of Salwar and torn her Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 2 jumper. He gave a bite on her right cheek as well.
2. The case of the prosecution further proceeds that thereafter, the appellant snatched the golden chain from the neck of prosecutrix and threatened her to kill in case the matter was reported to any body. On hearing the alarm, her parents came from the fields, apprehended and went to the house of appellant to lodge the protest. Meanwhile, accused Lakho @ Lakhan, brother of appellant, along with 3/4 other persons came there with a gun. He fired a shot aiming at her mother Sukma Devi (PW9), who had a narrow escape. In this manner, she claimed that the appellant has committed house trespass, outraged her modesty and attempted to commit sexual intercourse with her. In the background of these allegations and in the wake of her complaint (Ex.PA), the present criminal case was registered against the appellant and acquitted accused, by virtue of FIR No.144 Dated 17.4.2000, on accusation of having committed the offences punishable under sections 354, 452, 323, 307 and 506 read with section 34 IPC (the offence punishable u/s 376 read with section 511 IPC was later on added) by the police of Police Station Sadar Palwal, previously District Faridabad, in the manner depicted here-in- above.
3. During the course of investigation, accused Lakho alias Lakhan was found innocent and was exonerated. However, after completion of the investigation, the final police report (challan) was submitted by the police only against the appellant to face the trial for the pointed offences.
4. Having completed all the codal formalities, the appellant Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 3 was charge-sheeted for the commission of offences punishable u/ss 452, 376 read with section 511, 307 and 506 IPC, by way of charge sheet dated 31.1.2001 by the trial Court. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.
5. Subsequently, in pursuance of the application u/s 319 Cr.PC filed on behalf of prosecution, accused Lakho alias Lakhan was summoned as an additional accused to face the trial along with the appellant. Consequently, they were separately charge sheeted for having committed an offence punishable u/s 307 IPC, by means of charge sheet dated 4.3.2002.
6. The prosecution, in order to substantiate the charges framed against the appellant and acquitted accused, examined PW1 Dr.J.M.Mittal, who on 17.4.2000, has medico legally examined the prosecutrix, aged 25 years, vide MLR, wrongly marked as (Ex.PA) and found the following injuries on her person:-
1. There was an abrasion elliptical shaped 4 cm x 3½ cm in size resembling with teeth bite mark on left side of face.
2. Patient was complaining pain in chest on left side endoccipital region.
Tenderness plus plus.
7. He declared both the injuries as simple caused by blunt weapon within a duration of 12 hours. PW2 Dr. (Mrs.) Rameshwari, Dental Surgeon, has examined the prosecutrix, by virtue of her report (Ex.PB) and found scar mark over the left cheek resembling bite mark.
8. Sequelly, PW4 HC Satish Kumar has deposed that PW Raju presented to SHO Virender Singh the torn suit Salwar of the prosecutrix, which were taken into possession, vide recovery memo (Ex.PC) attested Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 4 by him. He has also stated that a .12 bore gun along with 10 empties and 15 live cartridges of the same bore were also taken into possession, by way of recovery memo (Ex.PC/1).
9. Likewise, PW3 prosecutrix has, inter-alia, maintained that on 16.4.2000, her parents & uncle were working in the fields and harvesting the crop. At about 7 P.M., as soon as, she was cooking the meals, in the meantime, the appellant came there and entered her house. On seeing her alone, he entered in the room and pressed her breasts with both the hands with an ulterior motive. When he tried to kiss, then he was pushed aside by her. He snatched the gold chain from her neck and threatened her to kill in case she disclosed to any body. On hearing her alarm, her parents came from the fields and caught hold of the appellant. They went to his house to lodge protest. In the meantime, accused Lakho along with 3-4 persons came there armed with a gun and fired shot towards her mother, who some how narrowly escaped. The matter was reported to the police, vide application (Ex.PA). She also stated that appellant had broken the string of Salwar, torn her jumper and given a tooth bite on her right cheek.
10. Similarly, PW5 Mahavir and PW9 Sukma Devi (parents of prosecutrix) have deposed that after hearing the noise of their daughter, they rushed back to their house and noticed that the appellant was dragging her. Her clothes were torn and there was a sign of bite on her right cheek. Meanwhile, Arjun and Bhisham also reached the spot. The appellant was apprehended by them. They convened a biradari panchayat and went to his house to lodge the protest. Accused Lakho alias Lakhan Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 5 had fired a shot from .12 bore gun aiming at her (PW9), who had a narrow escape. Instead of reproducing their entire statements and in order to avoid repetition, suffice it to say that PW3, PW5 and PW9 have corroborated the initial prosecution version on all vital counts.
11. However, PW6 Bhagat Singh has denied that he has ever handed over .12 bore gun, empty and live cartridges to PW4 HC Satish Kumar. No recovery was effected by the police in his presence. He did not support the prosecution version.
12. The next to note is the testimony of PW7 ASI Om Dutt, who has stated that the prosecutrix presented an application (Ex.PA). He made endorsement (Ex.PA/2) and sent it to the police station for registration of the case. He has testified his entire investigation. PW8 SI Bhagat Singh had prepared the report u/s 173 Cr.PC. PW10 Bijender Singh, Incharge of Palwal Gun House, has brought the sale register. He deposed that 25 cartridges were sold to appellant on 13.9.1996. On 18.12.1997, 22 cartridges were also sold to him. He has stated that on 11.4.2000, 25 cartridges were sold to the appellant as well. He has proved the cash memos (Ex.PF, Ex.PF/1 & Ex.PF/2) respectively. PW12 Manoj Kumar Draftsman prepared the scaled plan (Ex.PH) of place of occurrence with its correct marginal notes.
13. The last to mention is the testimony of PW11 SI Virender Singh, who has deposed that on receipt of information, he went to General Hospital, Palwal to record the statement of the appellant. On that day, he was unfit to make statement. On the next day, he inspected, prepared the rough site plan (Ex.PG) of the spot. He has also recorded Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 6 the statements of prosecutrix, her mother Sukma Devi, Arjan and Beermati u/s 161 Cr.PC. He took into possession double barrel gun of the appellant, by means of recovery memo (Ex.PC/1).
14. After the close of the prosecution evidence, the statements of the appellant and acquitted accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, they have denied the prosecution evidence in its entirety and pleaded false implication.
15. The appellant and acquitted accused, in order to prove their defence, have examined DW1 Siya Ram son of Shera, who has stated that on 16.4.2000, he was going from his house to the fields. On hearing the alarm, he went to the spot and noticed that the dispute was going on between the parties over the water channel. PW5 and 3-4 other persons caused injuries to the appellant. He further stated that subsequently, the appellant was falsely implicated by the police in the present case.
16. Sequelly, DW2 Dr.B.S.Sharma has medico legally examined the appellant, vide MLR (Ex.DD) and found the following injuries on his person:-
1. Lacerated wound 3" x 1" over the left parietal region of skull, muscle deep, fresh bleeding was present. Advised x-ray of the skull.
2. Lacerated wound 1" x ½" over the middle of the left jaw, muscle deep, fresh bleeding was present. Advised x-ray.
3. Lacerated wound ¼ x 1/8" over the middle of right leg, muscle deep, fresh bleeding was present. Advised x-ray.
4. Reddish diffused swelling 4" x 2" over the middle of back of the chest, at lumber region. Advised x-ray.
5. Two parallel reddish contusion mark 5" x 1" over the middle of back of the Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 7 chest, auxiliary region antero lateral aspect of back of the chest. Advised x- ray.
6. Reddish contusion marks 3" x 2" over the left shoulder joint. Advised x-ray.
7. Reddish abrasion marks 2" x 1" over the left knee joint. Advised x-ray.
8. Abrasion mark 2" x ½" over the antero lateral aspect of lower 1/3 of left leg.
17. He opined that all the injuries were caused by blunt weapon within a probable duration of six hours. This is all the oral as well as documentary evidence brought on record by the parties.
18. Taking into consideration the entire evidence on record, the appellant and his other co-accused Lakho @ Lakhan were acquitted of the charge framed against them for the commission of the offences punishable u/ss 307 and 376 read with section 511 IPC. At the same time, only the appellant was convicted and sentenced to undergo imprisonment for a period of one year for having committed an offence punishable u/s 354 IPC, to undergo imprisonment for a period of three years, to pay a fine of ` 1000/- and in default thereof, to further undergo imprisonment for a period of three months u/s 452 IPC and to undergo imprisonment for a period of three years u/s 506 (II) IPC. However, all the sentences were ordered to run concurrently, by virtue of impugned judgment of conviction & order of sentence dated 31.1.2003 by the trial Judge.
19. Aggrieved thereby, the appellant has preferred the instant appeal. That is how I am seized of the matter.
20. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the present appeal, as regards the conviction of appellant is concerned. Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 8
21. Ex facie, the arguments of learned counsel for appellant that the evidence brought on record by the prosecution falls short as is required to prove a criminal charge and since there are contradictions in the statements of prosecution witnesses, so, such type of evidence cannot be believed, are not only devoid of merit but misplaced as well.
22. As is evident from the record that the case of the prosecution from the very beginning is that on 16.4.2000, as soon as, the prosecutrix was alone in her house and was cooking meals, in the meantime, the appellant forcibly entered in her house and outraged her modesty. The prosecutrix, while appearing as PW3 in Court, has, inter-alia, maintained that when she was cooking meals in her house, then, the appellant came and forcibly entered her house. On seeing her alone, he entered the room and pressed her breasts with both the hands with an ulterior motive. He tried to kiss. He was pushed aside by her. When she was recalled for examination, she further disclosed that the appellant gave a tooth bite on her right cheek, broken the string of Salwar and torn her Jamper. The contention of learned counsel that she has not so stated in her initial statement in the Court that the appellant also gave bite on her cheek, broken the string and torn the jumper, but she has improved her version while she was called for re-examination in this regard, sans merit as well. The statement of prosecutrix is consistent that the appellant pressed her breasts with both the hands with an ulterior motive and tried to kiss her. The mere fact that she had forgotten to mention all the details in the initial statement in the Court, which she has cured the defect in re- examination, ipso facto, is not a ground, muchless cogent to throw her Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 9 entire statement, which otherwise inspires confidence as regards outraging her modesty by the appellant is concerned.
23. Not only that, the oral version of prosecutrix further finds corroboration from the statement of PW1 Dr.J.M.Mittal, who has medico legally examined her and noticed that there was an abrasion elliptical shaped 4 cm x 3½ cm in size resembling with teeth bite mark on left side of face. She was complaining of pain in the chest on left side endoccipital region plus tenderness. The prosecution version finds further corroboration from the statements of PW5 Mahavir and PW9 Sukma Devi (parents of the prosecutrix). Instead of reproducing the statements of PW3, PW5 and PW9 in toto and in order to avoid repetition, suffice it to say that they have fully supported the prosecution story on all participatory aspects and proved the complicity of the appellant as regards outraging her (PW3) modesty by him is concerned. They were cross-examined at length, but no substantial material could be elicited in their cross examination to dislodge their testimony and impeach their credibility. No motive could possibly be attributed to the PW3, PW5 and PW9 as to why they would falsely implicate the appellant in this case. They gave a vivid, consistent and cogent version of the occurrence and supported the prosecution version on all vital counts. The ocular version is duly supported by medical evidence. The investigating officer has duly testified his investigation. That means, the prosecution has produced sufficient evidence on record to prove the guilt of the appellant.
24. The next submission of learned counsel that the appellant has been falsely implicated by the prosecutrix in this case on account of Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 10 previous enmity, lacks merit and deserves to be ignored for more than one reasons. At the first instance, the previous enmity between the parties is not cogently proved on record. Moreover, it does not appeal to reason that the prosecutrix and her parents would falsely implicate the appellant in the present case on account of alleged dispute of water channel, particularly when the honour of her family in general and honour of prosecutrix in particular were involved.
25. Therefore, if the entire ocular, medical and documentary evidence brought on record by the prosecution is put together, then, to my mind, the conclusion is inescapable and irresistible that it has been able to prove the guilt of the appellant and contrary arguments of his counsel "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
26. Faced with the situation, then the learned counsel has fairly acknowledged that in view of cogent, oral as well as documentary & medical evidence, he will not be in a position to contest the conviction of the appellant any more. He has no argument/material/ground, much less cogent, to assail the prosecution version. In this manner, as no other legal infirmity has been pointed out by the learned counsel for appellant, therefore, the impugned judgment of conviction and order of sentence of fine are hereby maintained as such.
27. However, the contentions of learned counsel that the appellant is a first offender, there are sufficient grounds to and the trial Judge did not assign any valid reasons, to negate the plea of concession of Probation of Offenders Act (hereinafter to be referred to as "the Act") Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 11 or the benefit as envisaged under sections 360 & 361 Cr.PC to him and he is entitled to the grant of probation, have considerable force. In this respect, he 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, Hamir Singh Versus State of Punjab 2009(3) Recent Criminal Reports (Criminal) 64 and Megh Raj vs. State of Haryana, CRA No.664-SB of 2001 decided on 4.7.2013.
28. The learned State counsel acknowledged the factual matrix, legal position and did not raise any serious objection in this relevant connection.
29. 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.
30. Likewise, 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 Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 12 period of five and a half years and was not a previous convict.
31. Similarly, 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 the Act. The ratio of above-mentioned judgments "mutatis- mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
32. Having regard to the rival contentions of the learned counsel for the parties, having gone through the circumstances emitting from the record and after considering the entire matter deeply, to me, there is no legal impediment, if the appellant is granted the benefit of probation, inter alia, on the following grounds:-
i) The incident in this case is of 16.4.2000. Appellant has already faced the pangs and suffered the agony of protracted trial & appeal for the last more than 12 years.
ii) He was a young man of 31 years of age at the time of commission of the crime.
iii)He is a first offender and there is no history of his previous conviction.
iv)The appellant was beaten up by the parents of prosecutrix and he sustained eight injuries on his skull, left jaw, chest, left shoulder and on other parts of his body.Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 13
v) He has to support family comprising five children. There is no male member to support his family.
vi)The antecedent and credentials of the appellant are such that he has not been found involved in any other case.
vii)He has been leading a life of honest peaceful citizen in the village.
viii)The appellant and the victim are the residents of the same village and may live in peace in future.
ix)The appellant is ready to compensate the victim and her family.
x) There is no legal impediment to release him on probation.
xi)Even the modern trend of penology also leans towards the reformation of the offender, so as to make him a useful citizen of the society. No useful purpose was going to be achieved by again sending the appellant to jail.
33. Such, thus, being the legal position & material on record and taking into consideration the law laid down in the aforesaid judgments, the period of agony of protracted trial & appeal, age, antecedents of the appellant and totality of other facts & circumstances, emerging out of the record, as indicated here-in-above, to my mind, it would be expedient in the interest and justice would be squarely met & sub-served, if a lenient view in the matter of sentence is taken against the appellant, 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.
34. In this manner, the impugned judgment of conviction and order of sentence of fine are hereby maintained. However, the appellant 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 Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh CRA No.345-SB of 2003 14 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. At the same time, the appellant is also directed to pay a sum of ` 50,000/- as compensation to the victim and her family within a period of two months. Needless to mention that in case, he is found to be indulged in any illegal activities and did not pay the compensation, the sentence awarded to him by the trial Court would be deemed to have been automatically revived.
35. In the light of aforesaid reasons, the instant appeal is hereby dismissed on merits and the impugned judgment of conviction & order of sentence of fine are maintained. However, the order of sentence is accordingly modified to the extent and in the manner depicted herein above.
36. Needless to mention that natural consequences & compliance will follow accordingly.
Sd/-
(Mehinder Singh Sullar) Judge 6.8.2013 AS Whether to be referred to reporter? Yes/No Arvind Kumar Sharma 2013.10.03 15:22 I attest to the accuracy and integrity of this document Chandigarh