Jharkhand High Court
Rajesh Kumar Sharma vs The State Of Jharkhand ..... Opposite ... on 25 November, 2022
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 294 of 2015
Rajesh Kumar Sharma, s/o Sri Ramjee Kumar Sharma, r/o Adarsh Nagar,
Near Old Check Post, Dimna Road, PO & PS-Mango, District-East
Singhbhum ...... . Petitioner
Versus
The State of Jharkhand ..... Opposite Party
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Raja Ravi Shekhar Singh, Amicus
For the State : Mr. Anup Pawan Topno, APP
For the Complainant : Ms. Anjali Sinha, Amicus
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th Order No.10 /Dated: 25 November 2022 This criminal revision petition has been filed by Rajesh Kumar Sharma who was convicted and sentenced to SI for two years with fine of Rs.10000/- both under sections 354 and 506 of the Indian Penal Code (in short, IPC). He has been further convicted and sentenced to SI for one year and a fine of Rs.10000/- under section 509 IPC.
2. The aforesaid sentences have been ordered to run concurrently and the period of custody to be set-off against the sentence awarded to him.
3. The judgment dated 22nd March 2010 passed in G.R Case No.2863 of 2006 was challenged by the petitioner in Criminal Appeal No.111 of 2010 which has been dismissed by the learned District and Additional Sessions Judge-IV, Jamshedpur, by an order dated 28 th January 2015.
4. On 24th April 2015, sentence awarded to the petitioner was suspended and he was granted bail by a co-ordinate Bench of this Court.
5. Thereafter, the petitioner did not take any step in the matter for prosecuting the present criminal revision petition and it could come up for hearing on board only on 10th June 2022.
6. The order dated 21st June 2022 indicates that the learned counsel for the petitioner did not appear in the Court when this criminal revision petition was listed for hearing.
7. Mr. Mritunjay Choudhary, the learned counsel who was associated with Mr. Laljee Sahay, the learned counsel for the petitioner 2 Criminal Revision No. 294 of 2015 informed the Court that Mr. Laljee Sahay, the learned counsel, had shifted to Gujarat.
8. The order dated 21st June 2022 reads as under:
"This criminal revision petition was listed for hearing on 17 th April 2015, 24th April 2015 and 10th June 2015. Lastly, it was listed on 17th June 2022 on which day on account of paucity of time this criminal revision petition could not be taken up for hearing. Mr. Mritunjay Choudhary, the learned counsel appears and apprises the Court that Mr. Laljee Sahay, the learned counsel for the petitioner has wound up his office at Ranchi and shifted to Gujarat and he has no instructions to prosecute this matter. The petitioner was enlarged on bail by an order dated 24 th April 2015 and thereafter he did not take any step in the matter for hearing of this criminal revision petition.
Mr. Anup Pawan Topno, the learned APP appears for the State of Jharkhand.
In the aforesaid facts, reserving a right with the petitioner to engage a counsel of his own choice, Mr. Raja Ravi Shekhar Singh, the learned counsel is appointed as Amicus to argue this criminal revision petition on behalf of the petitioner. Registry shall provide a complete set of paper book along with all the necessary documents to the learned Amicus. Let name of Mr. Raja Ravi Shekhar Singh, the learned Amicus appear in the cause list.
The learned Amicus shall be paid Rs.5,500/- for each date of hearing. The fee for the learned Amicus shall be paid by the Department of Home, Government of Jharkhand.
Post the matter on 15th July 2022 under the heading for "Orders".
Let a copy of this order be communicated to the petitioner at the address disclosed by him in the present proceeding so that he has information about the next date of hearing of this criminal revision petition.
Let a copy of the order be given to Mr. Raja Ravi Shekhar Singh, the learned Amicus."
9. Thereafter, the officer-in-charge of Mango PS served a copy of the order dated 21st June 2022 upon the petitioner but he did not take any step for prosecuting the matter.
10. In the aforesaid background, Mr. Raja Ravi Shekhar Singh, the learned Amicus has argued this criminal revision petition on behalf of the petitioner.
11. Keeping in mind the nature of offence, the complainant has been served a notice to prosecute the present criminal revision petition. However, the complainant has also expressed her disinclination to contest this criminal revision petition against the petitioner.
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12. On 14th November 2022, Mr. Anup Pawan Topno, the learned APP made a statement in this regard which has been recorded in the said order, as under:
"Heard Mr. Raja Ravi Shekhar Singh, the learned Amicus. Mr. Anup Pawan Topno, the learned APP states that the complainant is presently residing in the State of Orissa. By an order dated 20th July 2022, the learned APP was directed to transmit a copy of the order dated 21st June 2022 to the officer-in- charge of Mango PS for service upon the petitioner so as to give notice of hearing of the present criminal revision petition to the petitioner.
An affidavit dated 30th August 2022 has been filed by Mr. Shamim Khan, Sub-Inspector, Olidih OP, East Singhbhum to the effect that a copy of the order dated 21st June 2022 was duly served upon the petitioner.
Inspite of service of notice upon the petitioner through the officer- in-charge, Mango PS, he has not turned up to prosecute the present criminal revision petition.
Mr. Anup Pawan Topno, the learned APP further states that a notice regarding hearing of the present criminal revision petition was sent to the complainant who is presently residing in the State of Orissa, however, she has not shown any inclination to prosecute this criminal revision petition.
In the aforesaid circumstances, keeping in mind that the offence under section 354 of the Indian Penal Code is a kind of personal injury to the complainant, Ms. Anjali Sinha, the learned counsel who is present in the Court, is requested to assist the Court as Amicus on behalf of the complainant in the present criminal revision petition.
Registry shall provide a complete set of paper book along with all the necessary documents to the learned Amicus. Let name of Ms. Anjali Sinha, the learned Amicus appear in the cause list. The learned Amicus shall be paid Rs.5,500/- for each date of hearing. The fee for the learned Amicus shall be paid by the Department of Home, Government of Jharkhand.
Let a copy of the order be given to Ms. Anjali Sinha, the learned Amicus. Mr. Raja Ravi Shekhar Singh, the learned Amicus has referred to the judgment in "Raju Pandurang Mahale v. State of Maharashtra & Anr." (2004) 4 SCC 371. On the other hand, Mr. Anup Pawan Topno, the learned APP has referred to the judgment in "Rupan Deol Bajaj (Mrs) & Anr. v. Kanwar Pal Singh Gill & Anr." (1995) 6 SCC 194.
The short synopsis and written notes of arguments prepared by the learned Amicus and the learned APP are taken on record. For reply by the learned APP, post this matter on 25 th November 2022.
Part heard."
13. The first ground of challenge made by Mr. Raja Ravi Shekhar Singh, the learned Amicus against the judgment in G.R Case No.2863 of 4 Criminal Revision No. 294 of 2015 2006 which stands affirmed on dismissal of Criminal Appeal No.111 of 2010 is that the necessary ingredients for constituting the offence under section 354 IPC are not made out, even on a plain reading of the evidence laid by the prosecution.
14. The case of the prosecution is that on 11th December 2006 the petitioner started making unsolicited calls on mobile phone of the complainant who was employed under ICICI Bank in the Personal Loan Section, situated in Tiwary Beachar Building, Bistupur. At about 3:30 PM, on the same day, the petitioner came to her office with other miscreants and started threatening her and made indecent gestures in presence of several people, due to which she became frightened. Thereafter the police arrived and the petitioner was taken to the police station where after taking his personal bond he was released. She made a complaint with Bistupur PS on 12th December 2006 alleging that the petitioner was indecent while talking to her over telephone and he was troubling her.
15. On the basis of the complaint made by the complainant, Bistupur PS Case No.374 of 2006 was lodged on 12 th December 2006 for the offence under sections 354, 509 and 506 IPC.
16. During the trial, the prosecution has examined seven witnesses and the complainant has tendered evidence as PW1.
17. In her examination-in-chief, PW1 has reiterated the allegations made by her against the petitioner. However, in paragraph no.7 of her cross- examination, she admitted that she entered into a compromise with the petitioner in respect of which a compromise petition dated 15th December 2007 was filed in the Court.
18. But the parents of the complainant who were examined as PW2 and PW3 deposed in the Court that their daughter under force and coercion had signed the compromise petition. They narrated several incidents in the Court in support of their stand that there was no compromise with the petitioner with free will and consent of their daughter.
19. On the basis of the evidence tendered through the prosecution witnesses, the learned Magistrate refused to take the compromise as a ground to acquit the petitioner from the charges framed against him under sections 354, 509 and 506 IPC.
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20. The learned Magistrate has held as under:
"Thus, on the combined reading of the testimonies of all the witnesses and my findings and reasons recorded above, I am of opinion that the prosecution has been able to establish that accused eve-teased, misbehaved and assaulted and spoke indecent things to the informant. The I.O has added to this that accused pulled the informant towards him and forcibly embraced her in his arms. Thus, from all above, it is established that accused assaulted and used criminal force on the informant who is a woman intending to outrage and knowing it to be likely that he will thereby outrage her modesty thus, bring round the accusation u/s 354 IPC which thus sets established. Further, it is established that accused used to stop the informant on the street when she was on her way to office and used to misbehave and through phone calls threatened her of injury in case she did not meet him or give way to his wishes and thereby threatened the reputation of a girl with intent to cause alarm to her. Accordingly, accusation for the offence u/s 506 IPC with regard to the criminal intimidation also gets established beyond all reasonable doubts. It is established that the misdeeds and indecent acts and unwarranted behaviour of the accused he intentionally insulted the modesty of a woman by his utterances and gesture of stopping her on streets and by embracing her in her office and intruded into her physical and personal privacy and as such, the accusation u/s 509 IPC also stands established beyond all reasonable doubts.
I must mention that I have already recorded above my findings with regard to compromise which I have held not voluntary. At the cost of repetition, I must say that the entire facts and circumstances and evidence adduced shows that the compromise was not voluntary. In the facts and circumstances, permission to compound the case u/s 354 and 509 cannot be accorded and is declined accordingly.
Accordingly, I find that from the evidence and material brought on record the prosecution has been able to prove its case to bring round the accusation u/s 354, 506 and 509 IPC against the accused beyond the shadow of all reasonable doubts. Accordingly, the accused is held guilty u/s 354, 506 and 509 IPC and is convicted thereunder. His bail bond is cancelled and he is taken into custody."
21. As noticed above, the criminal appeal preferred by the petitioner has been dismissed by an order dated 28 th January 2015 against which the present criminal revision petition has been filed under section 397 read with section 401 of the Code of Criminal Procedure, 1973.
22. The offence under section 354 IPC involves assault or use of criminal force on a woman to outrage her modesty. The modesty of a woman which is reflected in her conduct and behaviour is a kind of virtue of a woman. It is recognised in all religions and the law also protects modesty of a woman.
23. Assault has been defined under section 351 IPC to mean any 6 Criminal Revision No. 294 of 2015 gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person. The offence of "criminal force" means intentional use of force to any person without that person's consent in order to committing of any offence or intending by the use of such force to cause or knowing it to be likely that by use of such force it will cause injury, fear or annoyance to the person to whom the force is used.
24. The acts of the petitioner in making unsolicited calls to the complainant, making indecent gestures to her and causing fear in her mind constitute the offence under section 354 IPC.
25. In "Aman Kumar v. State of Haryana" (2004) 4 SCC 379 the Hon'ble Supreme Court has observed as under:
"13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Sections 376/511 IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. 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 dress 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 (3rd Edn.) defines the word "modesty" in relation to a woman as follows:
"Decorous in manner and conduct; not forward or lewd; Shamefast; Scrupulously chaste."
26. In the context of the compromise petition, the learned Amicus for the petitioner has made submissions to the effect that at the time when the alleged offence was committed the offence under section 354 IPC was compoundable with the consent of the victim.
27. The submission raised at Bar by the learned Amicus for the petitioner is that rejection of the compromise between the parties by the learned Magistrate is illegal.
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28. No doubt at the time when the offence was committed the offence under section 354 IPC was compoundable with consent of the affected party. However, by the Criminal Procedure Amendment Act No. 5 of 2009 the position in law has changed and now the offence under section 354 IPC is compoundable with permission of the Court.
29. The compromise petition was filed on 15th December 2007 and PW1 was examined in the Court on 7th January 2008 when in course of her cross-examination she admitted that with her free will she had signed the compromise petition. However, on examination of the evidence of PW2 and PW3, this Court is satisfied that the compromise dated 15 th December 2007 has rightly not been taken into consideration by the Courts below. PW2 and PW3 have described the threats of the petitioner which were such that they refused to disclose name of their relatives. PW2 has stated that the petitioner had spread a reign of terror and threatened to beat her and her relatives. The learned Addl. Sessions Judge has observed that on 15 th December 2007 no order sheet was drawn by the Court concerned. There is no reference of the aforesaid compromise petition in the records and it appears that a compromise petition was filed but not pressed by the petitioner. Obviously, the statement of the parties regarding compromise has not been recorded by the Court and there is no order passed by the Court in this regard.
30. Mr. Raja Ravi Shekhar Singh, the learned Amicus for the petitioner would next submit that the offence was committed in a public place however no independent witness has supported the prosecution case in course of the trial and while so a serious doubt arises on veracity of her story.
31. In this context, the learned Amicus has drawn attention of this Court to the findings recorded by the learned Magistrate that PW4, PW5 and PW6 did not support the prosecution case.
32. Per contra, Ms. Anjali Sinha, the learned Amicus for the complainant has submitted that PW4, PW5 and PW6 are hearsay witness and their evidence is not in conflict with the prosecution case. The learned Amicus would refer to section 134 of the Evidence Act to submit that no particular number of witnesses is required in a trial or inquiry to prove a fact 8 Criminal Revision No. 294 of 2015 and while so the evidence of PW2 and PW3 which has been believed by the Courts below is sufficient to record conviction of the petitioner for the offence under sections 354, 506 and 509 IPC.
33. Ms. Anjali Sinha, the learned Amicus for the complainant would submit that the offence under section 354 IPC has been held to be an offence against the public. This Court is in complete agreement with the learned Amicus who has referred to "Bimal Chandra Ghosh v. State of Tripura"
2021 SCC OnLine Tri 580 which has been affirmed by the Hon'ble Supreme Court in "Sri Bimal Chandra Ghosh v. The State of Tripura" 2022 LiveLaw (SC) 157 to support the judgment of conviction under section 354 IPC.
34. It is a well-settled proposition in law that in exercise of revisional jurisdiction the High Court shall not undertake an exercise to minutely examine evidence of the witnesses produced by the parties. Two Courts have found the petitioner guilty for committing the offence under sections 354, 509 and 506 IPC. Now this Court having examined the materials on record is satisfied that no error has been committed by the Courts below in arriving at a conclusion that the prosecution has been able to establish the charges framed against the petitioner.
35. In this regard the judgment in "State of Kerala v. Puttumana Illath Jathavedan Namboodiri" (1999) 2 SCC 452 may usefully be noticed wherein the Hon'ble Supreme Court has observed as under :
"5. .... 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 reappreciate 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. ..."
36. In view of the aforesaid discussions, I do not find any merit in this criminal revision petition and, accordingly, Criminal Revision No.294 of 2015 is dismissed.
37. Vide order dated 24th April 2015 the petitioner was granted bail. Accordingly, the bail bonds furnished by the petitioner are cancelled. He 9 Criminal Revision No. 294 of 2015 shall surrender before the Court concerned within 4 weeks to serve the remaining sentence.
38. This Court appreciates the assistance rendered by the learned Amici and the learned APP.
39. Let the lower Court records be sent back to the Court concerned forthwith.
(Shree Chandrashekhar, J.) sudhir