Himachal Pradesh High Court
Rajinder Singh vs State Of Himachal Pradesh on 13 September, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.50 of 2011 .
Reserved on: 4.9. 2017.
Date of decision: 13.09.2017
Rajinder Singh ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Jai Dev Thakur, Advocate.
For the Respondent : Mr. Neeraj K. Sharma, Dy. A.G. for the respondent - State.
Tarlok Singh Chauhan, Judge This criminal revision petition has been filed against the judgment passed by the learned Additional Sessions Judge, Mandi, on 15.01.2011 whereby he affirmed the judgment passed by the learned Judicial Magistrate 1st Class, Jogindernagar, District Mandi, on 19.09.2007/28.09.2007.
2. The petitioner was charged for the offences punishable under Sections 354, 323 and 506 of the Indian Penal Code (for short 'IPC'). The learned trial Court on considering the evidence on Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 2record, convicted the petitioner under Sections 354 and 323 of the I.P.C., however, acquitted him for the offence punishable under .
Section 506 of the IPC.
3. In the appeal, learned Additional Sessions Judge affirmed the sentence so passed by the learned trial court.
4. Aggrieved by the judgments rendered by the learned Courts below, the petitioner has filed the instant revision petition.
I have heard the learned counsel for the parties and gone through the records of the case.
5. The story put-forth by the prosecution is that on 7.5.2004, the prosecutrix was present in her house alongwith her 10 years old son, when the petitioner-accused allegedly knocked at a door. The petitioner requested the prosecutrix to give him food. The prosecutrix went to the courtyard to fetch fire wood. The petitioner came and caught hold her breast. The prosecutrix protested and tried to free herself from the clutches of the petitioner but he pushed her on the ground and then dragged her from her hair. The prosecutrix raised hue and cry. On hearing the screams, the father and sister of the prosecutrix came on the spot. On seeing them, the petitioner fled away from the scene. The matter was reported to the police and FIR was registered thereupon. The petitioner was ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 3 charged with the aforesaid offences to which he pleaded not guilty and claimed trial.
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6. The prosecution examined as many as eight (8) witnesses.
7. After recording the aforesaid statements, the statement of petitioner under Section 313 Cr.P.C. was recorded wherein he denied the prosecution story in entirety and stated that the present case had been fastened upon him due to old rivalry.
8. The version of the prosecution was duly corroborated by the eye witnesses and by recovery of broken pieces of bangles from the spot. The prosecutrix in her evidence corroborated the statement made by her before the police and testified that on 7.5.2004 at 11:00 p.m. when she was with her minor son at home, while her husband was not at home, someone knocked at the door. She made enquiry on which accused replied that he was Raju. She opened the door and made the accused to sit. The accused asked her to serve food and on this request she went to fetch fuel wood from the courtyard. The accused followed her to the courtyard and then started kissing and fondling her. She rescued herself from the accused and ran but the accused followed her and caught hold her from hair and dragged her. She fell down and shouted for help. Upon hearing of cry her ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 4 father and sister came to the spot. The accused also kicked her and her bangles were broken. The matter was reported to the police.
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9. In cross-examination prosecutrix stated that the house of her father was located next to her house. She further stated that she had remained Pradhan of the Panchayat for one term and was defeated by Shri Duni Chand during the next election. She admitted that the accused belongs to different panchayat and her brother-in-law also belongs to different Panchayat. She denied that she asked the accused to settle the marriage of her sister with the cousin of the accused. She also denied that a false case had been set up due to enmity.
10. Mr. Jai Dev Thakur, learned counsel for the petitioner has vehemently argued that the entire story of the prosecution is false and is a result of vindictiveness and further cannot be relied upon as there are material contradictions, inconsistencies, embellishments and improvements in the prosecution case. And lastly that the prosecution story otherwise cannot be believed as no independent witness in support thereof has been examined.
11. 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.
::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 512. 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.
13. 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".
14. 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".
15. 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:
::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 6"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 Court is much more restricted in its scope."
16. 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.
17. 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 reappreciate the evidence.
18. 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."::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 7
19. 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".
20. In 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 the High Court which would otherwise tantamount to gross miscarriage of justice."::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 8
21. In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon'ble Supreme Court held as under:
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"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."
22. Adverting to the plea of enmity as raised by the learned counsel for the petitioner, the same is not tenable and is totally ill-founded on the ground that no woman would like to put her own honour and modesty on stake merely on the basis of so-
called enmity.
23. Here it would be necessary to understand 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 ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 9 New International Dictionary of the English language defines modesty as "freedom from 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."::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 10
24. In Vidyadharan v. State of Kerala, (2004) 1 SCC 215, the Hon'ble Supreme Court, observed as under:-
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"9. In order to constitute the offence under S. 354 mere knowledge that the modesty of a woman is likely to be outraged 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 :
r (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 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 woman, 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) ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 11 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 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."
25. 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 ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 12 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 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".
::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 1315. 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 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."
26. Adverting to the plea of so-called contradictions, inconsistencies, embellishments and improvements in the ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 14 prosecution case, it is a settled position of law that in all criminal cases, normal discrepancies are bound to occur in the depositions .
of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and the other witnesses also make material improvements while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
27. Exaggerations per se do not render the evidence brittle. But, it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 15 contradictions in material particulars i.e. go to the root of the case materially affect the trial or core of the prosecution's case, render .
the testimony of the witness liable to be discredited (Refer: State, represented by Inspector of Police vs. Saravanan & another AIR 2009 SC 152; Arumugam vs. State AIR 2009 SC 331; Mahendra Pratap Singh vs. State of Uttar Pradesh (2009) 11 SCC 334 and Dr. Sunil Kumar Sambhudayal Gupta & Ors. vs. State of Maharashtra (2010) 13 SCC 657.
28. Judged in the light of aforesaid exposition of law, it would be noticed that the contradictions and inconsistencies that are sought to be pointed out in fact did not even constitute contradiction, which may create even the remotest doubt leave alone serious doubt in the prosecution case.
29. The learned counsel for the petitioner would refer to the time and incident as given by the various witnesses to claim there were discrepancies but I hardly find that a difference of time in the statements of all the witnesses does not exceed 30 minutes.
Therefore, such trivial matters which do not go to the core of the prosecution cannot be made ground on which the evidence of the prosecution can be rejected in its entirety.
30. As regards non-examination of independent witnesses, it is more than settled that in such like cases the sole testimony of ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 16 prosecutrix is enough to convict the accused. It is settled position of law that if the evidence of the victim is relied upon, the same can .
be acted upon for conviction. The conviction can be recorded solely on the basis of such evidence and there is no requirement to corroborate the evidence of the victim from any independent source, if such evidence of the victim is beyond material defect and free of substantial contradictions and infirmities. It is equally settled that the evidence of the victim of such offences is akin to that of an injured witnesses should be relied upon unless there are grounds for rejection of evidence on the basis of major contradictions and discrepancies therein. (Refer: Jarnail Singh and others vs. State of Punjab (2009) 9 SCC 719; Balraje @ Trimbak vs. State of Maharashtra (2010) 6 SCC 673 and Abdul Sayeed vs. State of Madhya Pradesh (2010) 10 SCC 259).
31. That apart, it would be noticed that PW4 Dr. Dinesh Thakur, who conducted the medical examination of the prosecutrix has found abrasion over posterior aspect of right arm elbow joint of the prosecutrix. This injury according to him could have been caused in a scuffle and by way of fall. It is the case of the prosecution that the petitioner had pushed the prosecutrix on the ground and had dragged her. These injuries fully corroborated the version put-forth by the prosecutrix.
::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 1732. In addition to the above, it would be noticed that the testimony of the prosecutrix, which otherwise does not require any .
corroboration has been duly corroborated by the testimonies not only of her sister but even that of her father.
33. Kumari Bhawna appeared as PW2 and stated that on 7.5.2004 she was sleeping in her house and at about 10:30 p.m. when somebody knocked at the door, her father went out and saw the accused present outside. After about two minutes she heard some cry and went to the house of her sister alongwith her father and saw that accused was sitting on the back of her sister and trying to press her neck. The accused also threatened to kill the prosecutrix in case the incident was revealed to any person.
34. In her cross-examination she denied that she was present in the house of her sister at the time of incident. She further denied that the accused and her father went to the house of the prosecutrix on the date of incident at about 10:30 p.m. She also denied that prosecutrix had called the accused to talk about the marriage of the cousin of the accused and further denied that since the accused had refused to do so, therefore, he was beaten up by the complainant party.
35. The father of the prosecutrix who appeared as PW3 has stated that on 7.5.2004 he was sleeping in his house. At about 10:30 ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 18 p.m. someone knocked the door. He opened the door and saw the accused was standing outside. Accused demanded liquor from .
him which he declined and asked him to go to sleep and after sometime he heard some noise and then he alongwith his daughter went to the house of the prosecutirx. The prosecutrix was lying on the ground and was crying and the accused on seeing them ran away.
36. On being cross examined, he denied that a false case had been made against the accused, after he had declined to get the marriage of the sister of the prosecutrix to his cousin. He further denied that the accused had worked against the prosecutrix in the election in which she was defeated.
37. Having said so, I really do not find any merit so as to call for any interference in this revision petition.
38. However, learned counsel for the petitioner would submit that the petitioner is aged about 38 years and has settled in village and he is an agriculturist and would be stigmatized in case he is sentenced.
39. 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 ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 19 any offences not punishable with death or imprisonment for life.
Relevant portion of Section 4 is reproduced as under:-
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"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 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."
40. 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 ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 20 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 the circumstances of the case. The powers under Section 4 of the Act vests 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.
41. 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 consideration 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 incident in this case (i) pertains to the year 2004; (ii) the petitioner has already faced the pangs and suffered agony of protracted trial and appeal/revision ::: Downloaded on - 14/09/2017 12:36:18 :::HCHP 21 for the last more than 13 years; (iii) he was a young man of 24 years at the time of occurrence.
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42. 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.
43. 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 01.11.2017.
September 13, 2017 (Tarlok Singh Chauhan)
(Sanjeev) Judge
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