Himachal Pradesh High Court
Bidhi Chand vs State Of Himachal Pradesh on 23 March, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Revision No. 11 of 2010.
Judgment reserved on: 19.03.2018.
Date of decision: 23rd March, 2018.
Bidhi Chand .......Petitioner.
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1No For the Petitioner : Mr. Lakshay Thakur, Advocate.
For the Respondent : Mr.Vinod Thakur and Mr.Sudhir
Bhatnagar, Additional Advocate
Gener als with Mr.Bhupinder Thakur,
Deputy Advocate General.
Tarlok Singh Chauhan, Judge .
This criminal revision petition has been filed against the judgment passed by learned Additional Sessions Judge, Fast Track Court, Hamirpur, H.P., on 11.12.2009, in Criminal Appeal No.49 of 2007, whereby he affirmed the judgment of conviction and sentence passed by learned Judicial Magistrate Ist Class, Court No.2, Hamirpur, on 23.11.2007/26.11.2007, in Police Challan No.9-I-2006.
2. Brief facts of the case are that the complainant lodged a complaint against the petitioner pursuant to which FIR No. 141/2005 came to be registered against him under Sections 354, 323 and 506 IPC. It was alleged that on 27.07.2005 at about 7.20 p.m. at place Dakehra, the complainant had gone to fetch water from the water source and when she reached there, the petitioner called her and Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 2 thereafter groped her with an intention to outrage her modesty and in this incident she sustained injuries. The complainant raised hue and cry .
that attracted the attention of Raksha Devi, Babli Devi and Biasan Devi, who rushed to the spot and this led to the petitioner to flee from the spot. However, before doing so, he extended threats to the complainant to do away with her life. The petitioner had used criminal force against the complainant with intent to outrage her modesty. The complainant was examined vide MLC Ex.PW4/A which established that she had sustained injuries even though the same were simple in nature and the probable duration of injuries was less than six hours. Even the petitioner was medically examined vide MLC Ex.PW8/A and was found to have sustained simple injuries. The matter was investigated and thereafter challan against the petitioner was prepared under the aforesaid sections to which he pleaded not guilty and claimed trial.
3. After completion of the prosecution evidence, the petitioner was examined under Section 313 Cr.P.C. wherein he denied the circumstances appearing in the prosecution case.
4. The learned trial Court af ter recording and evaluating the evidence convicted and sentenced the petitioner to undergo simple imprisonment for three months and also to pay fine of Rs.1,000/- under Section 354 IPC and in default of payment of fine, the petitioner was directed to undergo simple imprisonment for 15 days, under Section 323 IPC the petitioner was directed to undergo simple imprisonment for three months and to pay fine of Rs.1,000/- and in default of payment of fine, he was directed to undergo simple imprisonment for 15 days and under Section 506 IPC the petitioner was directed to undergo simple imprisonment for three months and fine of Rs.1,000/- was imposed on ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 3 him. In default of payment of fine, the petitioner was directed to undergo simple imprisonment for 15 days. All the sentences were directed to .
run concurrently.
5. In appeal, the learned Additional Sessions Judge affirmed the conviction and sentence so passed by the learned trial Magistrate.
6. Aggrieved by the judgments rendered by the learned Courts below, the petitioner has filed the instant revision petition.
7. It is vehemently argued by Mr. Lakshay Thakur, learned counsel for the petitioner that the findings recorded by the learned Courts below are perverse and, therefore, deserve to be set-aside and in any case the sentence, as imposed, is harsh and, therefore, a lenient view deserves to be taken in this case. Whereas, the learned Additional Advocate General, would support the impugned judgments by contending that since the petitioner is an accused of a crime against the woman and the same has been duly dealt with by utmost sensitivity, therefore, call for no interference.
I have heard the learned counsel for the parties and gone through the records of the case.
8. However, before I deal with the contentions put-forth by the learned counsel for the petitioner, it would be necessary to delineate the scope and power of this Court while dealing with revision petition of the instant kind.
9. At the outset, it may be observed that the revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioner has been convicted and sentenced by examining the material placed on record with a view to ascertain that the judgments so rendered by the learned ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 4 Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere .
in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on 13.9.2017, wherein the scope of criminal revision has been delineated in the following manner:-
"In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon'ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon'ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system".
In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon'ble Apex Court observed that High Court "committed an error in making a re-assessment of the evidence"
as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 5
In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721, the legal position regarding scope of revisional jurisdiction .
was summed up by the Hon'ble Supreme Court in the following terms:
"It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High r Court is much more restricted in its scope."
In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon'ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.
In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon'ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.
In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon'ble Supreme Court held as under:
"It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint."
In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon'ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when "there exists a manifest illegality in the order or there is a grave miscarriage of justice".
::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 6In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon'ble Supreme Court .
held as under:
"In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction.
Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of r the High Court which would otherwise tantamount to gross miscarriage of justice."
In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon'ble Supreme Court held as under:
"The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment."
10. Here, it would be necessary to understand the meaning of 'modesty' as also the essential ingredients of Section 354 of the IPC, which have been considered in detail in Rupan Deol Bajaj (Mrs) and Another v. Kanwar Pal Singh Gill and Another, (1995) 6 SCC 194, and it has held as under:-
"14. Since the word "modesty" has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word "modest" in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast", Webster's Third New International Dictionary of the English language defines modesty as "freedom from ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 7 coarsensess, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary .
(1933 Ed) the meaning of the word 'modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive a version to impure or coarse suggestions".
15. In State of Punjab v. Major Singh, AIR 1967 SC 63, a question arose whether a female child of seven and a half months could be said to be possessed of 'modesty" which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354, IPC. Needless to say, the 'common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat, J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of 'modesty' and the interpretation given to that word by this Court in Major Singh's case, (AIR 1967 SC 63) (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to 'outraging of her modesty' for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady - "sexual overtones"
or not, notwithstanding."
11. In Vidyadharan v. State of Kerala, (2004) 1 SCC 215, the Hon'ble Supreme Court, observed as under:-
"9. In order to constitute the offence under S. 354 mere knowledge that the modesty of a woman is likely to be outraged ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 8 is sufficient without any deliberate intention having such outraged alone for its object. There is no abstract conception of .
modesty that can apply to all cases. (See State of Punjab v.
Major Singh (AIR 1967 SC 63). A careful approach has to be adopted by the Court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under S. 354, I.P.C. are as under :
(i) that the person assaulted must be a woman;
(ii) that the accused must have used criminal force on her, and .
(iii) that the criminal force must have been used on the r woman intending thereby to outrage her modesty.
10. Intention is not the sole criteria of the offence punishable under S. 354, I.P.C. and it can be committed by a person assaulting or using criminal force to any wo man, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her witness should receive same weight. In the instant case after careful consideration of the evidence, the trial Court and the High Court have found the accused guilty. As rightly observed by the Courts below S. 3(1)(xi) of the Act which deals with assaults or use of force on any woman belonging to Scheduled Caste or Scheduled Tribe with intent to or dishonour or outrage her modesty is an aggravated form of the offence under S. 354, I.P.C. The only difference between S. 3(1)(xi) and S. 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to Scheduled Caste or Scheduled Tribe, S. 3(1)(xi) applies. The other difference is that in S. 3(1)(xi) dishonour of such victim is also made an offence. Section 448 provides for punishment relating to house trespass. In order to sustain the conviction under S. 448, I.P.C. It must be found that the intention of the accused was to commit an offence or to intimidate, insult or annoy the complainant. There must be ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 9 unlawful entry and there must be proof of one or other of the intentions mentioned in S. 441, I.P.C. In the case at hand .
evidence clearly establishes the commission of offence punishable under S. 448."
12. In Raju Pandurang Mahale v. State of Maharashtra and another, (2004) 4 SCC 371, the Hon'ble Supreme ruled as under:-
"11. Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354, IPC are "
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force on her.
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
12. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:
"Decorous in manner and conduct; not forward or lewd; Shame-fast; Scrupulously chaste."
13. Modesty is defined as the quality of being modest; and in relation to woman. "Womanly propriety of behaviour; scrupulous ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 10 chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure .
or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C and P 817.
In order to find the accused guilty of an assault with intent to commit a rape, Court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part.
The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.
14. Webster's Third New International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.), the meaning of the word 'modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".
15. In State of Punjab v. Major Singh, (AIR 1967 SC 63) a question arose whether a female child of seven and a half months could be said to be possessed of 'modesty' which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354, IPC. Needless to say, the "common notions of mankind" referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of 'modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) the ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 11 ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could .
be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and another, (1995 (6) SCC 194). When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role he consistently played from the beginning proved combination of persons and minds as well and as such amounted to "outraging of her modesty" for it was an affront to the normal sense of feminine decency. It is further to be noted that Section 34 has been rightly pressed into service in the case to fasten guilt on the accused-appellant, for the active assistance he rendered and the role played by him, at all times sharing the common intention with A-4 and A-2 as well, till they completed effectively the crime of which the others were also found guilty."
13. Adverting to the facts, it would be noticed that the material witness in this case is the complainant herself, who appeared as PW-1 and fully supported the case set up by her in the FIR. During cross-
examination, the complainant stated that her house and the houses of Prithvi Chand and Pushpa Devi are situated in the same village. She has further stated that she was not in talking terms with the petitioner for 4-5 years and further stated that due to this kind of activities, she did not talk to the petitioner. She further stated that she had earlier reported the matter to the Deputy Commissioner, Hamirpur, when the petitioner had been raising a road. She admitted that she had earlier also given statements against the petitioner, but denied that a false case was fastened upon him due to enmity.
14. Other witnesses of the prosecution are Pushpa Devi (PW-2) and Biasan Devi (PW-3). Even though, PW-2 Pushpa Devi did not support the case of the prosecution, but nonetheless, in her cross ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 12 examination she admitted that complainant had disclosed to her that the petitioner had caught hold her from her breasts. Biasan Devi, who .
appeared as PW-3, also did not support the case of the prosecution and stated that PW-1 would make false allegations against the petitioner. Raksha Devi, who appeared as PW-5, has fully supported the case of the prosecution and during her cross examination, she denied having any inimical relations with the petitioner.
15. The injuries on the person of the complainant have been duly proved by Dr. P.C.Saini, who stepped into the witness box as PW-4 and stated that he had examined PW-1, who had suffered simple injuries as have been mentioned in MLC Ex.PW4/A and the duration of such injuries was less than six hours.
16. The statements of other witnesses had already been discussed by both the learned Courts below and, therefore, reference to their statements, is not necessary, more particularly, in view of statements of the complainant as also PW-5 Raksha Devi .
17. At this stage, it is vehemently argued by Shri Lakshay Thakur, learned counsel for the petitioner that the case set up by the complainant is absolutely false and it is only on account of ongoing enmity between the families of the victim and the petitioner that this case has been fastened upon his client and would further argue that this fact duly stands supported in the testimony of PW-5, who has stated that complainant is habitual of making false allegations against the petitioner. Not only, I find no merit in these contentions, but I find the same to be fallacious and reprehensible.
18. It is a matter of common experience that in traditional Indian society no person likes to report about rape, outraging of ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 13 modesty or any other similar allegations which affect the chastity of a woman as the chastity of a woman is a most valuable thing not only for .
the person, but for her entire family and, therefore, it is with greater reluctance that the matters of instant kind are reported.
19. The learned Courts below have correctly appreciated the oral and documentary evidence available on record and, therefore, the findings so rendered by them cannot in any manner be termed to be illegal much less perverse, so as to call for any interference.
20. However, learned counsel for the petitioner would submit that the petitioner is aged about 47 years and has settled in village and he is an agriculturist and would be stigmatized in case he is sentenced.
21. Section 4 of the Probation of Offenders Act empowers the Court to release the convict on entering into a bond, with or without sureties, on probation when he is found guilty of committing any offences not punishable with death or imprisonment for life. Relevant portion of Section 4 is reproduced as under:-
"4.Power of court to release certain offenders on probation of good conduct.-(1) 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 behavior;
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 14 any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the .
offender is likely to live during the period for which he enters into the bond."
22. For exercising the power which is discretionary, the Court has to consider various circumstances of the case, like the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take realistic view of the gravity of the offence, the impact which the offence had on the victim, the benefit available to the accused under this provision is subject to the limitation embodied in the provision as is evident from the use of the word "may"
which clearly indicates that the discretion vested with the Courts whether to release the offender in exercise of the power under Sections 3 or 4 of the Act having regard to the nature of the offence and character of the offender and over all circumstances of the case. The powers under Section 4 of the Act vest with the Court when any person is found guilty of the offence committed not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Courts come to a conclusion by considering the circumstances of the case including the nature of the offence and the character of the offender, benefit should be given to the accused. Obviously, this power is not available and can be exercised by the Court even at the appellate stage.
23. Having regard to the rival contentions of the learned counsel for the parties, and having gone through the circumstances emanating from the record and after in depth consider ation of the entire matter, I find no legal impediment for considering the case of the petitioner for grant of probation, particularly, in light of the fact that the ::: Downloaded on - 23/03/2018 23:05:46 :::HCHP 15 incident in this case (i) pertains to the year 2005; (ii) the petitioner has already faced the pangs and suffered agony of protracted trial and .
appeal/revision for the last nearly 13 years; (iii) he was a young man of 34 years at the time of occurrence.
24. Even the modern trend of penology also leads to the reformation of the offender so as to make him useful citizen of the society. No useful purpose is otherwise going to be achieved by again sending the petitioner to jail.
25. Accordingly, let the Probation Officer of the area concerned where the accused permanently resides place before this Court his report qua the antecedents of the petitioner on or before next date of hearing.
List on 27-04-18.
23rd March, 2018. (Tarlok Singh Chauhan),
(krt) Judge.
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