Himachal Pradesh High Court
Manoj Kumar vs State Of Himachal Pradesh on 22 April, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.210 of 2011 with .
Cr. Revision No.213 of 2011.
Judgment reserved on: 16.04.2019.
Date of decision: 22nd April, 2019.
1. Cr. Revision No. 210 of 2011.
Manoj Kumar .......Petitioner.
Versus
State of Himachal Pradesh ......Respondent.
2. Cr. Revision No. 213 of 2011.
Manoj Kumar .......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(s) : Mr. Naveen K. Bhardwaj, Advocate.
For the Respondent : Mr.Vinod Thakur, Additional
Advocate General with
Mr.Bhupinder Thakur, Deputy
Advocate General and Mr. Ram Lal
Thakur, Assistant Advocate
General.
1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 2 Tarlok Singh Chauhan, Judge.
Since both these petitions emanate from the same .
incident, therefore, they were taken up together for hearing and are being disposed of by a common judgment.
2. These revision petitions under Sections 397 and 401 of the Code of Criminal Procedure is directed against the judgment passed by the learned Additional Sessions Judge, Mandi, on 16.06.2011, whereby he affirmed the judgment of conviction and sentence as passed by the learned Sub Divisional Judicial Magistrate, Chachiot at Gohar, District Mandi, on 27.05.2008 whereby the petitioners were convicted under Sections 341, 354 and 506 of IPC.
3. Briefly stated the case of the prosecution is that the prosecutrix along with her friend (names of both with-held) on 27.02.2006 like always left home to attend stitching classes and at about 4.00 p.m. while they were returning to their home through the 'jungle', the petitioners, who were known to both the prosecutrix, came there. They initially stopped their path and thereafter embraced the prosecutrix in their arms and started asking them to open their 'salwars' and when both the prosecutix started shouting, the petitioners left them and showed them a knife and threatened to kill the prosecutrix in case the incident was revealed to any person.
::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 3The matter was thereafter reported to the police and an FIR Ex.
PW2/A was registered. Investigation of the case was conducted by .
PW-5 ASI Mohan Lal. Medical examination of the prosecutrix was conducted vide MLC Ex. PW1/C pursuant to the application moved to this effect in which it was revealed that in the case of one of the prosecutrix, she suffered simple injuries and other prosecutrix was found to have suffered abrasion on the dorsum of the right hand brownish and discoloration. The nature of the injuries was stated to be simple vide MLC Ex. PW1/B. The Investigating Officer visited the spot and prepared site plan Ex. PW5/A. Statements of the witnesses were recorded as per their version and after completion of the investigation, challan was prepared and presented in the Court.
4. The learned trial Court found sufficient reasons for summoning the petitioners for the commission of offence punishable under Sections 341, 354 and 506 of IPC and accordingly put them notice of accusation to which they pleaded not guilty and claimed trial.
5. The prosecution examined as many as six witnesses in all. The petitioners in their statements under Section 313 Cr.P.C.
denied the prosecution story in its entirety. Statement of Sohan Lal was recorded in defence.
::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 46. The learned trial Court after evaluating and appreciating the evidence, convicted the petitioners and directed them to undergo .
simple imprisonment for a period of six months each under Section 354 IPC and to pay a fine of Rs.300/- each and in default of payment of fine, they were directed to undergo simple imprisonment for 10 days. The petitioners were further directed to undergo simple imprisonment for a period of three months each under Section 506 IPC and to pay fine of Rs. 200/- each and in default of payment of fine, they were further directed to undergo simple imprisonment for 5 days. Under Section 341 IPC, the petitioners were directed to undergo simple imprisonment for a period of 15 days. All the sentences were directed to run concurrently.
7. Aggrieved by the judgment of conviction and sentence passed by the learned trial Magistrate, the petitioners preferred an appeal before the learned Additional Sessions Judge, Mandi, who dismissed the same, constraining them to file the instant revision petitions.
8. It is vehemently argued by Shri Naveen K. Bhardwaj, learned counsel for the petitioners that the judgments passed by the learned Courts below are perverse and, therefore, deserve to be set aside.
::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 59. On the other hand, Shri Vinod Thakur, learned Additional Advocate General would submit that it is settled law that .
the revisional Court does not function as a Court of appeal and cannot re-appreciate the evidence and, therefore, the judgments of conviction and sentence as passed by the learned Courts below warrant no interference.
10. I have heard the learned counsel for the parties and have also gone through the records of the case.
11. However, before I deal with the contentions put-forth by the learned counsel for the petitioners, it would be necessary to delineate the scope and power of this Court while dealing with revision petitions of the instant kind.
12. 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.::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 6
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".
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 Court is much more restricted in its scope."::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 7
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:
r "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".
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 ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 8 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."
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 r 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."
13. 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 versus 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 ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 9 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 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 ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 10 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."
14. In Vidyadharan versus 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 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 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 ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 11 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 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."
15. In Raju Pandurang Mahale versus State of Maharashtra and another, (2004) 4 SCC 371, the Hon'ble Supreme ruled as under:-
::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 12"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."::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 13
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 r 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 ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 14 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 ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 15 completed effectively the crime of which the others were also found guilty."
.
16. Bearing in mind the aforesaid exposition of law, it would be noticed that the entire prosecution case rests upon the shoulder of the prosecutrix, who in their respective statements have categorically stated that when they were returning home from Gohar and reached at 'Chola Nala', the petitioners caught hold of them upon which they shouted for help which made the petitioners to run away from the spot. The petitioners threatened them with a knife before leaving the spot in case the prosecutrix narrated this incident to anyone and thereafter fled away from the spot.
17. The prosecutirx narrated the incident to their parents. In the cross examination, the prosecutrix did admit that the place where they were caught hold of was a common passage and the petitioners had enquired about their names and only thereafter caught hold of them. They further stated that the petitioner had dragged them for a distance, but significantly, the prosecutrix admitted that the matter was compromised and she had agreed not to initiate any proceedings against them. However, the prosecutrix admitted that the petitioners did not have any knife. This is the entire evidence apart from the hearsay evidence including those of father and relative of the prosecutrix. One thing is clear that as ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 16 regards the evidence, there is inconsistency in the testimonies of both the prosecutrix regarding the incident. At the same time, it .
cannot be ignored that thereafter the parties had compromised the matter, meaning thereby that the incident as alleged had in fact taken place and, therefore, no fault can be found with the judgments of conviction and sentence passed by the learned Courts below.
18. However, Shri Naveen K. Bhardwaj, Advocate, would submit that even the Courts below have concurrently found the petitioners guilty for the commission of the offence, but the fact still remains that the petitioners were 18 and 23 years of age at the relevant time and moreover the parties have compromised the matter. He would further argue that the incident had taken place more than 13 years back and, therefore, the petitioners should be extended benefit of Probation of Offenders Act.
19. There can be no dispute that the modesty of a woman has to be strongly guarded and any attempt to misbehave and sexually assault any woman is one of the most depraved acts. But then, it also cannot be ignored that the offence took place more than nearly 13 years back and the petitioners have already faced the pangs and suffered agony of protracted trial and now the petitioners are settled in life and in case they are sentenced, they shall be ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 17 stigmatized and their lives will be ruined. Therefore, a lenient view may be taken or else they shall be stigmatized in case they are sentenced.
.
20. 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 offence 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 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."::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 18
21. 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.
22. Having regard to the rival contentions of the learned counsel for the parties and having gone through the circumstances ::: Downloaded on - 22/04/2019 21:58:27 :::HCHP 19 emanating from the record and after in depth consideration of the entire matter, I find no legal impediment for considering the case of .
the petitioners for grant of probation, particularly, in light of the fact that the incident in this case (i) pertains to the year 2006; (ii) the petitioners have already faced the pangs and suffered agony of protracted trial and appeal/revision for the last more than 13 years.
23. 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 petitioners to jail.
24. Accordingly, let the Probation Officer of the area concerned where the petitioners permanently reside place before this Court his report(s) qua the antecedents of the petitioners on or before next date of hearing.
List on 28.05.2019.
22nd April, 2019. (Tarlok Singh Chauhan), (krt) Judge.
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