Punjab-Haryana High Court
Subhash Sharma & Anr vs Rekha Rani Alias Nibha Rani & Anr on 7 February, 2014
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Civil Revision No.193 of 2014(O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.193 of 2014(O&M)
DATE OF DECISION: 22.01.2014
Subhash Sharma & Anr.
..Petitioners
Versus
Rekha Rani alias Nibha Rani & Anr.
...Respondents
CORAM: HON'BLE MR.JUSTICE NARESH KUMAR SANGHI
Present: Mr.Sartej Singh Narula, Advocate,
for the petitioners.
Naresh Kumar Sanghi, J.
1. Challenge in the present criminal revision petition filed by the petitioners, Subash Sharma and Mukesh Kumar, is to the judgment dated 13.01.2014 passed by the learned Additional Sessions Judge, Kurushetra, whereby the appeal filed by the petitioners and their co- accused challenging their conviction and sentence for the offences punishable under Sections 323 and 354 read with Section 34, IPC, recorded by the learned Chief Judicial Magistrate, Kurushetra, in a Complaint Case No.328 of 2008, was dismissed.
Brief facts
2. Brief facts of the case are that respondent No.1-complainant (name concealed) filed a complaint before the learned Area Judicial Magistrate alleging that she was running a vegetable shop in front of New Anaj Mandi, Ismailabad, on Ambala-Hisar road. On 07.05.2002, at about 10.00/10.30 P.M, when she was cooking meal then the Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (2) petitioners along with their co-accused Rajesh Sharma and Raja alias Chochu, came in a Tata Sumo of white colour and entered into her shop. Petitioner Subash Sharma caught hold her hand and offered her ` 5,000/- for spending a night with them and the said offer was also repeated by the other accused present there. The complainant refused to accept the offer and asked them not to behave in such a fashion but the petitioners and their co-accused threatened to kill the husband and the son of the complainant and tried to forcibly take her from there. Dheeraj, aged about 14 years, son of the complainant, who was also present in the shop, rushed to call his father from the nearby place where he was working. Raja, the co-accused of the petitioners, put his hand on the mouth whereas, another accused Rajesh gave a slap to the complainant. Petitioner Mukesh Kumar caught hold of her by hair while petitioner Subash tore her blouse and as such, the petitioner and their co-accused outraged the modesty of the complainant. While she was trying to save herself from the clutches of the petitioners and their co-accused, her bangles were broken. In the meantime, the son and the husband of the complainant reached there and on seeing them, the petitioners and their co-accused ran away from the spot with their vehicle. The complainant became unconscious and after regaining consciousness, she narrated the entire episode to her husband. Since it was too late in the night and the complainant and her family members were frightened, therefore, the matter was reported to the police on the next day i.e. 08.05.2002 but when no action was initiated against the petitioners and their co-accused, the complainant was constrained to move an application before the Senior Superintendent of Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (3) Police, Kurushetra, and other higher authorities but of no consequence, rather the local police started pressurizing the complainant for effecting a compromise with the accused. Disappointed with the non- action of the police, the complainant knocked at the door of the court by way of filing the complaint.
3. In preliminary evidence, the complainant examined herself as PW-1 and produced her husband as PW-2. After recording of the preliminary evidence, the petitioners and their co-accused were summoned to face trial for the commission of offences punishable under Sections 323 and 354 read with Section 34, IPC, vide order dated 29.05.2002 by the then the learned Judicial Magistrate Ist Class, Kurushetra.
4. Pre-charge evidence was led and finding a prima facie case, the petitioners and their co-accused were charge-sheeted for having committed the offences punishable under Sections 323 and 354 read with Section 34, IPC, to which the petitioners and their co-accused pleaded not guilty and claimed trial.
5. In post-charge evidence, the complainant and her husband, Lallan, were cross-examined by the defence and thereafter, the evidence of the complainant was closed vide Court order dated 25.11.2010.
6. Statements of the accused, in terms of Section 313, Cr.P.C., were recorded to which they denied the allegations levelled against them and pleaded innocence.
7. In defence, a copy of FIR, Mark D, and copy of the report of police, Mark E, were produced.
Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh
Civil Revision No.193 of 2014(O&M) (4)
8. After hearing the arguments from both the sides, the learned trial court held the petitioners and their co-accused guilty for the offences punishable under Sections 323 and 354 read with Section 34, IPC and passed the following sentences:-
Offence Sentence Fine In default (S.I.)
323/34, IPC Six months ` 500/- Fifteen days
354/34, IPC Six months ` 500/- Fifteen days
Both the substantive sentences were ordered to run concurrently.
9. Dissatisfied with the verdict of conviction and sentence by the learned trial court, the petitioners and their co-accused filed the appeal which was dismissed by the learned Additional Sessions Judge, Kurushetra, vide his judgment dated 13.01.2014 which is under challenge before this Court.
10. Sh.Sartej Singh Narula, learned counsel for the petitioners submited two-fold arguments- (i) on merits, no case was made out to hold the petitioners guilty and; (ii) the incident was of the year 2002, therefore, the petitioners were entitled to the benefit enshrined in the Probation of Offenders Act, 1958.
11. In support of his first contention, learned counsel for the petitioners submitted that there was a money dispute between the husband of the complainant as well as father of Rajesh Sharma, a co- accused of the petitioners, since the husband of the complainant had purchased an Ice Factory from the father of Rajesh Sharma and an amount of ` 16,000/- was outstanding against Lallan(husband of the complainant). He further submitted that it was not believable that the Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (5) petitioners and their co-accused would outrage modesty of the complainant and cause injuries to her in the presence of her son, aged about 14 years. Even the complainant has failed to examine her son. He further submitted that the complainant had levelled the false allegations, therefore, on the basis of her deposition, the conviction and sentence recorded by both the courts below was liable to be set aside. In support of his second submission, the learned counsel for the petitioners submitted that the petitioners were respectable persons and they had already suffered the agony of trial and the appeal for approximately 12 years, therefore, the benefit of probation should be extended to them.
12. In support of his above contentions, he placed reliance on Pandurang Sitaram Bhagwat vs. State of Maharashtra, 2005(1)RCR (Criminal) 858; Rai Sandeep @ Deepu vs. State of NCT of Delhi, 2012(4) RCR(Crimiinal) 11, Mayawati vs. Hukam Chand Attreja, 2002(2)RCR (Criminal) 142, Surjan and others vs. State of M.P., (2002)10 Supreme Court Cases 214, Ved Parkash vs. State of Haryana, AIR 1981 Supreme Court 643, Arvind Mohan Sinha vs. Amulya Kumar Biswas and Others, (1974) 4 Supreme Court Cases 222; Kawar Pal Singh Gill vs. State, 2005 (3) RCR(Criminal) 772; and Prabhu Dayal vs. State of Haryana, 1999(1) RCR(Criminal) 428.
13. I have heard the learned counsel for the petitioners and with his able assistance gone through the material available on record.
14. Though the learned trial court as well as the learned Appellate Court had held the petitioners guilty for the offences punishable under Sections 323 and 354 read with Section 34, IPC, and Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (6) concurrent findings on facts have not to be reappraised while hearing the criminal revision petition but to satisfy the conscience of this Court, the findings recorded by the courts below and the material available on record have been re-scanned.
15. It is the consistent case of the complainant that the petitioners and their co-accused went to her vegetable shop at 10.00/10.30 p.m on 07.05.2002 and offered her a sum of ` 5,000/- and insisted her to accompany them in a vehicle to some other place. On her refusal, they not only manhandled her but also torn her blouse. The petitioner and his co-accused even did not bother in their ill-design that adolescent son of the complainant was present there. Immediately on the next day, the matter was reported to the police. The police did not take action on the said complaint and hence the complainant who had no option but to approach the learned Area Judicial Magistrate by way of a complaint. Finding a prima facie case, the learned Judicial Magistrate summoned the petitioners and their co- accused for having committed the offences punishable under Sections 323 and 354 read with Section 34, IPC. After taking into consideration pre-charge and post-charge evidence, the learned trial court found the material sufficient to hold the petitioners and their co-accused guilty for the said offences. In para No.17 of its judgment, the learned trial court held as under:-
"Thus, from the above discussed facts and circumstances and the evidence led by the complainant, it has been proved on record beyond reasonable doubt that on 7.5.2002 at Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (7) about 10/10:30 p.m., all the accused insurance of their common intention caused simple hurt to complainant (name concealed) and outraged her modesty. Accordingly, all the accused are held guilty and convicted for the commission of offence punishable under Sections 323 and 354 read with Section 34, IPC."
16. While affirming the findings of learned trial court, the learned Appellate Court held as under:-
"12. As stated earlier, the accused have also taken the plea that they have been falsely implicated in the present case due to enmity between them and the husband of the complainant. However, this plea of the accused has no force as in the present case, the complainant also approached the police and this fact has been proved by copies of the complaint Mark-A and Mark-B and the postal receipts Mark C and Mark-D. The police had not taken any action on the complaint moved by the complainant. In Jaswant Singh's case (supra) the accused have taken the defence that they were implicated due to enmity and their plea was rejected by the Hon'ble Supreme Court. In the said case also, report was lodged with the police but no action was taken.
13. The accused have pleaded that there was some dealing regarding the Ice Factory with the husband of the complainant and the present complaint was result of the said dealing. In Bishan Singh's case (supra), the accused Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (8) raised the plea that he was involved due to party faction in the village. The same was held to be not tenable on the ground that no woman would like to put her honour and modesty at stake merely on the basis of faction. In the present case also, it cannot be said that on the basis of some dispute between her husband and the accused, she would raise such allegations against the accused keeping her honour and modesty at stake. Similar view has been taken in Kanwar Pal Singh Gill's case(supra)."
17. In Pandurang Sitaram Bhagwat's case (supra), Hon'ble the Supreme Court held that in spite of the fact that no cogent evidence was available against the accused but he was convicted on the ground that no woman would put her character at stake and as such, the conviction and sentence for the offence punishable under under Section 354, IPC, could be set aside.
18. In Rai Sandeep @ Deepu's case (supra), this Court held that three days delay in lodging the report with the police in a case of outraging modesty of a woman was fatal.
19. In Ved Parkash's case (supra), Hon'ble the Supreme Court held as under:-
"Sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The trial court should have collected materials necessary to help award a just punishment in the circumstances. Even it S.360, Cr.P.C is not attracted, it is the duty of the sentencing Court to be activist enough to Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (9) collect such facts as have a bearing on punishment with a rehabilitating slant".
20. In Arvind Mohan Sinha's case (supra) Hon'ble the Supreme Court held as under:-
"(i) Probation is a system which provides a means of re-
education without the necessity of breaking up the offender's normal life and removing him from the natural surroundings of his home. The Probation of Offenders Act is a reformative measures and its object is to reclaim amatcur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society. The Act recognizes the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offenders can be reformed and rehabilitated in society. A attitude of social defiance and recklessness which comes to a convict who, after a jail term, is apt to think that he has no more to lose or fear may breed a litter of crime. The object of the Probation of Offenders Act is to nip that attitude in the bud."
21. In Kanwar Pal Singh Gills's case (supra), Hon'ble the Supreme Court affirmed the release of the accused on probation where he was held guilty for the offences punishable under Sections 354 and 509, IPC.
22. There cannot be second opinion regarding the ratio of the judgments relied upon by the learned counsel for the petitioners, however, every criminal case has its own facts and the ratio of the Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (10) judgments to be relied upon are to be applied in the facts and circumstances and the background of the case in hand. In the given set of facts, a Director General of Police who done a lot for defusing the terrorism in the State of Punjab though was held guilty for the offences punishable under Sections 354 and 509, IPC, but was ordered to be released on probation. The ratio of the said judgment cannot be blindly applied in the facts and circumstances of the case in hand. Likewise, the submission of the learned counsel for the petitioners that the sole testimony of the prosecutrix in every case of sexual harassment was not sufficient to hold a person guilty unless her evidence is found to be startling quality.
23. Keeping in view the above principle, the facts and circumstances of the case in hand have been analyzed. Concededly, the complainant-prosecutrix is the mother of a 14 year old child. She was running a vegetable shop in a town known as Ismailabad. The petitioners and their co-accused while riding a Tata Sumo went to her shop at 10.30 p.m and offered her a sum of ` 5,000/- and asked her to accompany them in the vehicle would clearly show their intention. On her refusal, she was not only manhandled but her clothes were also torn. Immediately, on the next day, the matter was reported to the police. Though the police did not take action on the complaint of the complainant-prosecutrix but the judiciary came to her rescue. After filing of the complaint, the version put fourth by the complainant was accepted at different levels. The conduct of the complainant appears to be natural in reporting the matter to the police on the very next day of the occurrence and continue to stand by her version in the trial Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (11) court at three stages, i.e preliminary evidence, pre-charge evidence and post-charge evidence. The husband of the complainant also supported the version put forth by the complainant, therefore, this Court is of the firmed view that there was nothing wrong in believing her sole testimony for holding the petitioners guilty for outraging her modesty and causing her injuries.
24. In the matter of Ajahar Ali vs. State of West Bengal, (2013) 10 Supreme Court Cases 31, Hon'ble the Supreme Court held that the provisions of Section 354, IPC, were enacted to safeguard public morality and decent behaviour, therefore, if any person uses criminal force upon any woman with the intention or knowledge that the woman's modesty will be outraged, he is to be punished.
25. In State of Punjab vs. Major Singh, AIR 1967 SC 63, it was held that the modesty is the quality of being modest which means as regards women, decent in manner and conduct, scrupulously chaste, though the word "modesty" has not been defined in the Code. The ultimate test for determining whether modesty has been outraged is whether the action of the offender as such can be perceived as one which is capable of lowering the sense of decency of a woman.
26. In Ajahar Ali's case (supra), Hon'ble the Supreme Court has refused to extend the benefit of the Probation of Offenders Act to convict aged about 16 years, who was held guilty under Section 354, IPC, and sentenced to rigorous imprisonment for six months by the courts below.
27. As a sequel to the above discussion, this Court finds no merit in the present criminal revision petition filed by the petitioners and as Sharma Seema 2014.02.10 13:53 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.193 of 2014(O&M) (12) such, the same is dismissed and the criminal miscellaneous petitions enclosed with the main petition are also disposed of.
January 22, 2014 (Naresh Kumar Sanghi)
seema Judge
Sharma Seema
2014.02.10 13:53
I attest to the accuracy and
integrity of this document
Chandigarh
Civil Revision No.193 of 2014(O&M)
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Sharma Seema
2014.02.10 13:53
I attest to the accuracy and
integrity of this document
Chandigarh