Himachal Pradesh High Court
Rajesh Kumar @ Raju vs State Of H.P on 31 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Criminal Revision No.110 of 2008
Date of Decision : 31.5.2016
.
Rajesh Kumar @ Raju ....Petitioner.
Versus
State of H.P. ...Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Bhuvnesh Sharma & Mr.
Ramakant Sharma, Advocates.
rt
For the Respondent : Mr. Rupinder Singh Thakur, Additional
Advocate General for respondent/-
State.
Sandeep Sharma, Judge (Oral)
Present Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment dated 2.6.2008, passed by learned Sessions Judge, Hamirpur, HP, in Criminal Appeal No. 15 of 2007, affirming the judgment dated 6.3.2007, passed by learned Judicial Magistrate 1st Class, Barsar in criminal Complaint No. 59-I-2006/ RBT No.46-II-2006, whereby the present petitioner is convicted under Section 354 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 1000/-, which was lateron modified to three months by the Court of learned Sessions Judge, in appeal.
Whether reporters of the local papers may be allowed to see the judgment ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...2...
2. On 4.7.2008, this Court while admitting the instant Criminal Revision petition for hearing, suspended the sentence .
imposed by the Courts below against the petitioner subject to his furnishing bail bonds in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of learned trial Court. However on 6.5.2016, when the matter came up for final hearing before this Court, petitioner-accused moved an of application under Section 321 read with Section 482 Cr.P.C placing therewith a compromise entered between the rt petitioner-accused as well as complainant.
3. After careful reading of the averments contained in the application, time was granted to the respondent-State to file reply, if any, to the application and parties were directed to remain present in the Court on 31.5.2016. Respondent-State filed reply to the application, wherein most of the averments have been denied for want of knowledge. In para-6 of the reply, it is submitted that the allegations leveled against the petitioner-accused stands proved before the court of learned Judicial Magistrate Ist Class, Barsar and his conviction has been further upheld by the learned Sessions Judge, Hamirpur and, as such, no public interest would be served, if the parties are allowed to compromise the matter at hand. Both the parties are present in person in the Court.
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4. Careful reading of the application filed under Section 482 Cr.P.C, suggest that on the complaint of the .
complainant, an FIR No. 6 of 2006, dated 24.3.2006 was registered against the petitioner-accused at the Police Station, Barsar, District Hamirpur, HP and thereafter subsequent of filing of the aforesaid FIR, challan was presented before the Judicial Magistrate Ist Class Barsar, wherein learned trial Court of after satisfying itself that a prima-facie case exist against the accused, framed charge under Section 354 IPC, to which rt accused pleaded not guilty and claimed trial. Learned trial Court below after appreciating evidence on record convicted the accused for having committed the offence punishable under Section 354 IPC and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/-.
Aforesaid conviction and sentence imposed by the learned trial Court was further upheld by the learned Lower Appellate Court vide impugned judgment dated 2.6.2008. Hence, the present revision petition.
5. Para-4 of the application, which is duly supported by an affidavit of the complainant as well as by the petitioner-
accused suggest that during the pendency of the present revision petition on the intervention of the respectable persons of the society, complainant and the petitioner-accused have compromised the matter in order to maintain cordial relations ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...4...
in future, copy of compromise dated 25.4.2016 is also placed on record. It has been stated in para-5 of the application that .
compromise has been entered at their own sweet will and without any pressure from anybody in order to maintain good relations.
6. Since joint application on behalf of the petitioner-
accused as well as complainant has been filed in the present of case enclosing therein that compromise entered between the parties, this Court with a view to ascertain correctness and rt genuineness of the averments contained in the application as well as compromise, asked the complainant in the open Court whether she has entered into the compromise with her own free will or there was any external pressure upon her to compromise the matter. Smt. Roshani Devi (complainant), who was present in the Court, stated on oath that she has entered into the compromise of her own free will and there is no external pressure on her to enter into the compromise. She stated that she has no objection, whatsoever; in case the accused is acquitted of the charge framed against him.
Aforesaid statement of the complainant is placed on record.
7. Since the application has been filed under Section 321 read with section 482 Cr.P.C, this Court deems it fit case to consider the present application in the light of the judgment passed by Hon'ble Apex Court in Narinder Singh and others ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...5...
versus State of Punjab and another (2014)6 Supreme Court Cases 466, whereby Hon'ble Apex Court has formulated .
guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred above clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings that power conferred under of Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under section rt 320 of the Code. No doubt, under section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves.
However, this power is to be exercised sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under:-
"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:::: Downloaded on - 15/04/2017 20:29:48 :::HCHP
...6...
29.1Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the .
offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this of power is to be exercised sparingly and with caution.
rt 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...7...
committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim .
and the offender.
29.4. On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among rt themselves.
29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...8...
collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to .
the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima of facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are rt remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...9...
on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the .
evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the of conclusion of the evidence the matter is at the stage of argument, normally the High Court rt should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime".
8. Para 29.2 of the judgment of the Hon'ble Apex Court suggest that guiding factor for quashing the criminal proceedings ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...10...
in terms of settlement arrived between the parties would be to secure:
.
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
of
9. Careful perusal of para 29.3 of the judgment suggest that such a power is not be exercised in the cases which involve heinous and serious offences of mental depravity or rt offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society.
Apart from this, offences committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly arising out of commercial transactions or arising out of matrimonial relationship or family disputes may be quashed when the parties have resolved their entire disputes among themselves.
10. Admittedly, in the present case accused has been convicted under Section 354 of Indian Penal Code, which is ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...11...
non-compoundable offence and could not be ordered to be compounded in terms of Section 320 IPC. Since, in the instant .
case application has been moved under Section 321 read with Section 482 Cr.P.C, this Court is empowered to quash the criminal proceedings in the case which are not compoundable. But perusal of para 29.7 of judgment passed by Hon'ble Apex Court provides that while deciding whether of to exercise jurisdiction under Section 482 Cr.P.C or not, timings of settlement play crucial role. The Hon'ble Apex rt Court has specifically observed that when conviction is already recorded by the learned trial Court and matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same.
11. Admittedly in the present case, application for compounding the offence in question on the basis of compromise has been filed at the appellate stage, when accused has been already convicted by the learned trial Court. Hence, this Court is of the view that it is not a fit case, and a stage, where inherent power under Section 482 Cr.P.C can be invoked to order for compounding the offence.
Accordingly, application moved by the petitioner for compounding the offence on the basis of compromise having been entered into the parties is rejected at this stage.
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12. Since for the reasons stated hereinabove, application bearing No. Cr.M.P. No. 373 of 2016 filed on .
behalf of the accused for compounding the offence stands rejected, this Court proceeds to decide case at hand on merits.
13. Mr. Bhuvnesh Sharma, learned counsel representing the petitioner vehemently argued that the of judgments passed by both the Courts below are not sustainable as the same are not based upon correct appreciation rt of the evidence available on record. He contended that both the Courts below while recording the conviction against the petitioner-accused have failed to notice major and substantive contradictions in the statements of the prosecution witnesses and, as such, great injustice has been caused to the petitioner-accused. Mr. Bhuvenesh Sharma, learned counsel forcibly contended that both the Courts below have fallen in great error inasmuch as not acknowledging the arguments having been made by the petitioner with regard to delay in lodging the FIR. During his arguments, he invited the attention of the Court to the statements made by the various prosecution witnesses to demonstrate the major contradictions in the statements of the prosecution witnesses and wherein no explanation worth the name was rendered for delay in lodging the FIR. He ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...13...
contended that the petitioner-accused has been falsely implicated in the present case due to personal enmity and .
litigation between the family of the petitioner- accused and the complainant and, as such, Courts have committed material irregularity and illegality while convicting the petitioner-accused for having committed an offence punishable and under Section 354 of the Indian Penal Code.
of He prayed that the judgments passed by both the Courts below deserve to be quashed and set-aside. He also rt contended that the prosecution has miserably failed to prove its case within the parameters of basic ingredients of Section 354 of the Indian Penal Code and sentence of three months, as has been recorded by the first Appellate Court is harsh and cannot be allowed to be sustained. It is also contended on behalf of the petitioner that in case the Court comes to conclusion that the judgments passed by both the courts below are based on correct appreciation of the evidence available on record, then petitioner-accused being first offender, deserves to be given benefit of Section 4 of the Probation of Offenders Act. Mr. Sharma, learned counsel submitted that more than 10 years have passed after recording the conviction against the petitioner-accused by the learned trial Court and petitioner suffered great mental agony during the pendency of the case. Mr. Bhuvnesh ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...14...
Sharma, learned counsel also stated that the petitioner-
accused is respectable person of the society and there is no .
other case pending against him in any court of law in the country.
14. Mr. Rupinder Singh Thakur, learned Additional Advocate General, representing the respondent-State, supported the judgments passed by both the Courts below and of stated that no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case rt as judgments passed by both the Courts below are based on correct appreciation of the evidence available on record.
15. I have heard the learned counsel representing the parties and have carefully gone through the record made available.
16. True, it is that this Court has very limited powers under Section 397 of Criminal Procedure Code while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the evidence available on record that too solely with a view to ascertain that judgments passed by learned Courts below are not perverse and same are based on correct appreciation of evidence on record.
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17. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is .
concerned, the Hon' ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High of Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by rt inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...16...
the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in .
its judicial process or illegality of sentence or order."
18. Perusal of the material available on record suggest that on 23rd March, 2006, at about 1:00 PM, complainant was returning to her house after delivering meals at the shop of of her husband, the petitioner-accused came on a scooter and gave lift to the complainant. Since complainant had prior acquaintance with the accused, she took a lift on the scooter of rt the petitioner- accused but when she alighted from the scooter near her house, petitioner-accused caught hold of her arm and asked her as to when he should visit her house. On being asked by the complainant, accused told her that his wife generally remains ill and, as such, she should oblige him. Complainant further alleged in the complaint that the petitioner-accused in order to outrage her modesty caught hold of the string of her salwar. However, she escaped with great difficulty and thereafter she started walking towards her house. It is averred in the complainant that at some distance, petitioner-accused started calling out to her that she should give him time as when he should come to her house. It is also averred that above talk was heard by Veena Devi, who was collecting grass from nearby field. As per story of the prosecution, complainant narrated the story to her husband, who on the next day ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...17...
accompanied the complainant to the police station, Barsar for lodging the FIR Ex.PW1/A. On the basis of complaint lodged by .
the complainant, matter was investigated by PW-5, ASI Parkash Chand, who during the investigation prepared the site plan Ex.PW5/A and took into possession Scooter bearing registration No. HP-21-0352 of the accused along with its documents vide memo Ex.PW3/A. Statement of the witnesses were recorded of under Section 161 Cr.P.C and after collecting the material evidence on record, police prepared the challan and presented rt the same in the Competent Court of law against the petitioner-
accused for having committed the offence punishable under Section 354 of the Indian Penal Code.
19. Since accused was convicted by the learned trial Court for having committing the offence punishable under Section 354 IPC, he filed an appeal under Section 374 of the Code of Criminal Procedure in the Court of learned Sessions Judge, Hamirpur, who while dismissing the appeal modified the sentence to three months from one year, as was awarded by the learned trial court below.
20. In the present case, prosecution with a view to prove its case examined as many as five witnesses. PW-1, Smt. Roshani Devi(complainant), PW-2, Dharam Chand, PW-3, Sandeep Kumar, PW-4, SI Sohan Lal and PW-5, ASI Parkash Chand. Statement of accused under Section 313 Cr.P.C was ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...18...
also recorded, wherein he denied the incident and stated that parents of the complainant Roshani Devi(PW-1) and his in-laws .
are of same village and since cases between them are pending in the Court, he has been falsely implicated in the present case.
Accused also examined DW-1, Jitender Kumar in his defence.
21. PW-1, Smt. Roshani Devi stated that accused offered lift to her on his scooter and since she had prior of acquaintance, she took the lift. However, at some distance, when she asked the accused to drop her, the accused stopped rt the scooter and caught hold of her arm. The complainant objected to the same but accused told her that his wife generally has stomach-ache and she should oblige him with sexual favour. Complainant also stated that accused asked her as to when he should visit her house and later he put his hands on the string of her salwar but she escaped from the clutches of the accused with great difficulty. She also stated that when she was going back to her house, accused asked her from behind as to when he should visit her house. She went to her house and in the evening informed her husband about the incident. It has also come in her statement that Veena Devi was collecting grass nearby and she also asked her as to why the later was running. On the next day, she lodged the FIR Ex.PW1/A at the police station. It has come in her cross-
examination that Veena Devi was cutting grass at a distance of ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...19...
20-25 metres. She categorically denied that she never took a lift on the scooter of the accused-petitioner. She also denied .
that she had not gone with meals to the shop of her husband.
She also stated in her cross-examination that police Station is about 2 KMs from her house and she did not narrate the incident to anyone except her husband, Dharam Chand.
22. Careful perusal of the statement given by of PW-1 in his examination-in-chief and cross-examination suggest that complainant has been very specific and consistent rt while stating that accused caught hold of her arm and asked to oblige him with sexual favour. She has been very very candid in stating that accused put his hands on the string of her salwar. Even in the cross-examination conducted on behalf of the petitioner-accused, complainant stuck to stands which she took in the examination-in-chief and defence was unable to extract anything contrary from her in the cross-examination.
23. Interestingly, no suggestion worth the name with regard to enmity and animosity was put to the complainant by the accused and, as such, stand taken by the accused that he has been falsely implicated due to pending litigation between his in-laws and parents of the complainant cannot be accepted on its face value. If the statement given by PW-1 is read in its entirety, it leaves no doubt in the mind of the Court that testimony of PW-1 is confidence inspiring and defence has ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...20...
miserably failed to prove that she had motive to falsely implicate the accused.
.
24. PW-2, Dharam Chand, husband of the complainant (PW-1) also stated that when he reached home on that day at about 9:00 PM from his shop, complainant narrated the entire incident to him. So, accordingly on the next day, he took his wife to the Police Station, Where FIR Ex.PW1/A was lodged. In of cross-examination, he admitted that he did not tell the incident to any villager. He also denied the suggestion that his wife had rt not gone to the shop on the relevant day with meals to him.
25. PW-3, Sandeep Kumar and PW-4, SI Sohan Lal are formal witnesses, who have only proved the documents on record.
26. PW-5, ASI Parkash Chand, Investigating officer stated that he visited the spot and prepared the site plan Ex.PW5/A and took into possession Scooter bearing registration No. HP-21-0352 of the accused. Thereafter, he recorded the statements of the witnesses. In cross-examination, he also stated that as per the police record, the incident had not been witnessed by Amar Nath and Lekh Ram. He also denied the suggestion that earlier a report was made about this very incident by the complainant to the police.
27. Careful analysis of the statement made by PW-2, husband of the complainant also suggest that the same is ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...21...
trustworthy as he in his statement has fully supported the version put forth by the complainant (PW-1). He also explained .
that why FIR could not be lodged at the same time, because he admitted that since he came at 9:00 PM in the evening on the date of occurrence, he along with his wife could only report the matter to the police on the next morning. Since it has specifically stated by PW-1 in her statement that Police Station of is 2 KM away from her house, explanation rendered by PW-1 and PW-2 for alleged delay in lodging FIR Ex.PW1/A seems to rt be plausible and deserves to be accepted in the facts and circumstances of the case. As far as not narrating the incident to other villager are concerned, such omission, if any, cannot be termed as detrimental to the case of the prosecution because admittedly in cases where personal pride of lady is involved, she cannot be expected to narrate the incident to each and everyone but fact remains that at first instance/ opportunity she narrated the incident to her husband and thereafter matter was reported to the police. Moreover, as has been discussed above, that no suggestion worth the name was put to PW-1 as well as PW-2 by the defence that they had some motive to falsely implicate the accused. Even no suggestion with regard to prior enmity and animosity between in-laws of the petitioner- accused and parents of the complainant was put to PW-1 as well as PW-2 and, as such, version put forth by the ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...22...
accused that he has been falsely implicated due to ongoing litigation between his in-laws and parents of the complainant .
cannot be accepted at all. Moreover, no evidence be it ocular or documentary was ever led by the accused to prove the aforesaid assertion made by the accused in his statement under Section 313 Cr.P.C. Hence, defence taken by the accused does not appear to be trustworthy.
of
28. DW-1, Jitender Kumar stated that on 23rd March, 2006, he met the complainant on the way while he was rt returning from the shop of chemist to his house and both of them came to their village together. He also stated that he noticed Veena Devi cutting grass in fields. In his cross-
examination, it has come that he did not note the date of occurrence. The houses of Lekh Ram and Dev Raj are adjacent to the shop of the chemist. He also admitted that he knows the petitioner-accused since he purchases tailoring material from the shop of his brother.
29. Close reading of the statement given by DW-1 in his examination-in-chief as well as cross-examination, nowhere supports the version put forth by the petitioner-accused in his statement under Section 313 Cr.P.C. This defence witness DW-
1 except deposing that he met the complainant on the way while he was returning from the shop of chemist and thereafter they both returned together to the village did not state ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...23...
anything which could be of any help to the defence taken by the accused. Rather, careful reading of the statement given by .
DW-1 suggest that on the date of occurrence complainant had gone to the shop of her husband and thereafter she returned to his house along with DW-1. But interestingly, no suggestion worth the name was put to the complainant in the cross-
examination to the effect that on the date of occurrence when of she was coming from the shop of her husband she was accompanied by DW-1, who also in his statement stated that rt he met the complainant on the way but he has not stated the place, where the complainant allegedly met him and, as such, in the absence of specific statement with regard to the place where DW-1 had allegedly met the complainant, statement given by DW-1 cannot be relied upon, especially in the teeth of the fact that accused was known to DW-1.
30. In totality of facts and circumstances of the case, as discussed hereinabove, defence put forth by the petitioner-
accused deserves out right rejection that he has been falsely implicated by the complainant because as per evidence available on record, there is nothing on record from where it can be inferred that the complainant was inimical to the accused and she had some motive to falsely depose against the accused, rather accused miserably failed to prove by leading cogent evidence on record that there is/was pending ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...24...
litigation between his in-laws as well as parents of the complainant. Had there been any litigation pending between .
in-laws of accused and parents of petitioner, accused would have definitely made available on record proceedings, if any, allegedly pending in the Court of law.
31. Another arguments having been advanced by the learned counsel representing the petitioner-accused that the of complainant herself took the lift from the accused suggest that she is consenting party, deserves to be rejected out rightly, rt rather needs to be condemned in the given facts and circumstances of the case. It stands specifically proved on record that the complainant and accused had prior acquaintance, which fact gets substantiated from the statement given by the accused under Section 313 Cr.P.C, where he himself stated that his in-laws and parents of the complainant had some litigation, meaning thereby statement given by PW-1 is correct that she knew the petitioner-accused since in-laws of accused and her parents are of same village.
Rather careful perusal of the evidence available on record compels this Court to presume that the complainant took lift on the scooter of the accused under bona-fide belief that no harm would be caused to her by the accused, since her parents and in laws of the accused are of same village.
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32. Another arguments put forth by the learned counsel for the petitioner-accused that both the Courts below .
have miserably failed to appreciate that there was no intention whatsoever on the part of the accused to outrage the modesty of the complainant appears to be far away from the factual aspect available on the record. PW-1 has candidly stated that petitioner-accused caught hold of her arm and asked to visit of her house and oblige him with sexual favour. Moreover, complainant specifically stated that the petitioner-accused in rt order to outrage her modesty put his hands on the string of her salwar, however she managed to escape. Aforesaid specific and candid statement, which the defence has not been able to shatter during cross-examination, is sufficient enough to conclude that the accused only with a view to outrage the modesty of the complainant gave her lift and later asked for sexual favour.
33. In totality of facts and circumstances as emerges from the record, this Court has no hesitation to conclude that the prosecution has been able to prove its case beyond reasonable doubt against the accused, who has been rightly held guilty for having committed the offence punishable under Section 354 of Indian Penal Code by the learned court below and, as such, this Court sees no reason to interfere with the judgments passed by both the courts below as the same are ::: Downloaded on - 15/04/2017 20:29:48 :::HCHP ...26...
based on correct appreciation of the evidence available on record.
.
34. Accordingly, the present criminal revision petition is dismissed being devoid of any merit.
35. Now, adverting to the prayer made by learned counsel for the petitioner-accused that the petitioner-accused being first offender is entitled to the benefit of Section 4 of the of Probation of Offenders Act. This Court considering all the aspects of the matter, especially pendency of the present rt petition, where admittedly petitioner suffered mental agony for almost 10 years, deems it to be fit case where prayer for granting benefit under Section 4 of the Probation of Offenders Act, can be considered. Moreover, while considering the application for compounding of offence moved jointly by both the parties, this Court had an occasion to peruse the averments contained in the application as well as compromise deed, wherein parties resorted to compromise the matter solely with a view to have cordial relation in future. Even complainant, who was present in the Court, stated on oath that she intends to compromise the matter and she does not have any objection in case the accused is acquitted of the charge having been framed against him under Section 354 IPC. However, aforesaid application could not be accepted at this stage, since conviction already was recorded by the trial Court but certainly ::: Downloaded on - 15/04/2017 20:29:49 :::HCHP ...27...
this Court while examining the case of accused for extending the benefit of Section 4 of the Act can take note of the .
averments contained in the application as well as compromise entered between the parties, wherein it has specifically come on record that the parties have amicably resolved the matter in order to maintain good relations in the locality.
36. Accordingly, in view of the aforesaid submission of made by learned counsel for the petitioner-accused and taking into consideration the peculiar facts and circumstances of the rt present case, wherein parties have compromised the matter at hand, I am of the considered opinion that the present petitioner-accused can be granted benefit of Section 4 of the Probation of Offender Act. Accordingly, Registry is directed to call for the report of the Probation Officer, Hamirpur, District Hamirpur, HP on or before 5.7.2016.
Registry to list this matter on 30th June, 2016.
(Sandeep Sharma )
May 31,2016 Judge.
(shankar)
.
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