Gujarat High Court
Mukesh @ Munno Mansukhbhai Handa vs State Of ... on 18 November, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/1245/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1245 of 2016
With
CRIMINAL APPEAL NO. 1343 of 2016
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MUKESH @ MUNNO MANSUKHBHAI HANDA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
Criminal Appeal No. 1245 of 2016
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR JEET J BHATT, ADVOCATE for the Appellant(s) No. 1
MS. HANSA PUNANI, APP for the Opponent(s)/Respondent(s) No. 1
Criminal Appeal No. 1343 of 2016
MS. HANSA PUNANI, APP for the Respondent
MR. JEET J. BHATT, ADVOCATE for Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 18/11/2017
COMMON ORAL ORDER
1. Criminal Appeal No. 1245 of 2016 has been filed by the Appellant / Original Accused under Section 374 of the Code of Criminal Procedure being aggrieved with the impugned judgment and order rendered in Special POCSO Case No. 25 of 2015 by the learned Special Judge, Surendranagar dated 2.8.2016 recording conviction of the Appellant / Original Accused for the offence under Section 354 of the Indian Penal Code and imposing sentence Page 1 of 9 HC-NIC Page 1 of 9 Created On Fri Jan 19 23:06:39 IST 2018 R/CR.A/1245/2016 ORDER of rigorous imprisonment for one year and fine of Rs.5000/- and in default, simple imprisonment for three months. However, the Appellant / Original Accused has been acquitted for the offence under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act") giving benefit of doubt on the ground stated in the memo of appeal.
2. Criminal Appeal No. 1343 of 2016 has been preferred by the Appellant - State of Gujarat under Section 378 of the Code of Criminal Procedure challenging acquittal of the Respondent / Original Accused from the charges for the offence under the POCSO Act in Special POCSO Case No. 25 of 2015 on the grounds stated in the memo of Appeal.
3. Heard learned Advocate Shri Jeet J. Bhatt for the Appellant / Original Accused and learned APP Ms. Hansa Punani for the Respondent State in Criminal Appeal No. 1245 of 2016 and learned APP Ms. Hansa Punani for the Appellant State and learned Advocate Shri Jeet J. Bhatt for the Respondent / Original Accused in Criminal Appeal No. 1343 of 2016.
4. The facts of the case briefly summarized as per the prosecution case and revealed from the charge of POCSO Case No.25 of 2015 framed by the learned Special Judge, Surendranagar are that on 19.2.2015 when the minor daughter of the complainant, aged about Page 2 of 9 HC-NIC Page 2 of 9 Created On Fri Jan 19 23:06:39 IST 2018 R/CR.A/1245/2016 ORDER 14 years was returning after natural call through the field, the Appellant / Original Accused in Criminal Appeal No. 1245 of 2016 is said to have followed her and tried to touch her and abuse her and thereby committed offence under Section 354(d) (Stalking) read with Section 504 of the Indian Penal Code. The charge is also framed for the offence under Sections 8 and 12 of the POCSO Act 2012.
5. On the basis of the complaint given by the complainant father, a case was registered being Special POCSO Case No.25 of 2015 by the learned Special Judge, Surendranagar. The plea of the Appellant / Original Accused was recorded and when the Appellant / Original Accused denied to have committed any such offence the learned Special Judge proceeded with the trial.
6. After the recording of the evidence of the prosecution witnesses was over, the learned Special Judge recorded the further statement of the Appellant / Original Accused under Section 313 of Cr.PC.
7. After hearing the learned APP and learned Advocate for the Appellant Accused, the learned Special Judge recorded conviction of the Appellant - Original Accused in Criminal Appeal No.1245 of 2016 for the offence under Section 354 of IPC and acquitted the Appellant / Original Accused for the offence under the POCSO Act.
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R/CR.A/1245/2016 ORDER
8. It is this judgment and order, which has been assailed by the Appellant / Original Accused in Criminal Appeal No. 1245 of 2016 challenging conviction for the offence under Section 354 of IPC whereas the State has assailed the same judgment recording acquittal of the Appellant / Original Accused for the offence under the POCSO Act by filing Criminal Appeal No. 1343 pf 2016.
9. During the course of hearing and having perused the testimony of the victim PW-7 at Exh.18, it is evident that according to the victim the Appellant - Original Accused is said to have embraced her and when she raised the shout had left her and ran away. Even in the statement of the victim recorded under Section 164 of Cr.PC, it is on the same line. Therefore, it is in this background the learned Special Judge has recorded conviction of the Appellant - Original Accused for the offence under Section 354 IPC and acquitted the Appellant - Original Accused for the offence under the POCSO Act on appreciation of material and evidence that the necessary ingredients are not fulfilled for the offence under Sections 8 and 12 of the POCSO Act. However, the learned Special Judge has recorded the conviction for the offence under Section 354 IPC as stated above.
10. Therefore, having perused the material and evidence and hearing learned Advocate Shri Jeet J. Bhatt for the Appellant - Original Page 4 of 9 HC-NIC Page 4 of 9 Created On Fri Jan 19 23:06:39 IST 2018 R/CR.A/1245/2016 ORDER Accused and learned APP Ms. Hansa Punani, it transpires that interest of justice would be served if the Appellant - Original Accused in Criminal Appeal No. 1245 of 2016 is granted the benefit under the Probation of Offenders Act looking to the young age of the Appellant - Original Accused also and the nature of offence. It is required to be stated that the Appellant - Original Accused had also prayed for grant of probation but it was declined by the learned Special Judge.
11.Therefore, having regard to the appreciation of material and evidence and totality of facts and circumstances, the impugned judgment and order recording acquittal of the Appellant - Original Accused for the offence under POCSO Act 2012 cannot be said to be erroneous as the court below has discussed with regard to necessary ingredients, and on appreciation of the evidence, particularly of the victim as stated above, the same cannot be said to be perverse or erroneous. At the same time, as the Appellant - Original Accused who was aged about 20 years at the relevant time, deserve grant of benefit under the Probation of Offenders Act particularly when it has come on record after the incident that the Appellant - Original Accused is residing in the same locality in the same village.
12. Therefore, while maintaining the conviction, interest of justice Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri Jan 19 23:06:39 IST 2018 R/CR.A/1245/2016 ORDER would be served if the benefit is granted to the Appellant - Original Accused under the Probation of Offenders Act looking to the young age of the Appellant - Original Accused at the relevant time coupled with the fact that the conviction may not be a bar in giving the benefit of probation when the Appellant - Original Accused is young and no fruitful purpose would be served by sending him to jail.
13.The Probation of Offenders Act in the Statement and Objects provide for empowering the court to release on probation, in all suitable cases, an offender / accused, who has not committed an offence punishable with death or imprisonment for life. In fact for the Appellant - Original Accused or the offenders under the age of 21 years, a special provision has been made and the Appellant - Original Accused was of the tender age of 20 years or 21 years at the relevant time. Therefore, having regard to the statement of objects and reasons under the Probation of Offenders Act read with Section 360 and 361 of Cr.PC, 1973 forming the part of the sentencing process, interest of justice would be served if the benefit is granted to the Appellant - Original Accused under the Probation of Offenders Act.
14. Moreover, it is required to be stated that the learned Special Judge on appreciation of material and evidence has recorded the acquittal Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Jan 19 23:06:39 IST 2018 R/CR.A/1245/2016 ORDER of the Appellant - Original Accused as stated herein above for the offence under the POCSO Act 2012 and has recorded the conviction under Section 354 IPC.
15.Therefore, it is in this background as stated above, the court is of the opinion that, on scrutiny of the material and evidence, the benefit under the Probation of Offenders Act should be given to the Appellant - Original Accused having regard to the facts and circumstances.
16. Therefore, as observed by the Hon'ble Apex Court in a judgment reported in AIR 2000 SC 1677 in case of Dalbir Singh v. State of Haryana and ors. the benefit could be given if it is considered expedient. It has been observed:
"In the matter of release of a person convicted of an offence on probation of good conduct the Parliament has made it clear that it has to be only if the Court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". Parliament has left it to the Court to decide when and how the Court should form such opinion. ........."
However, one of the circumstances which is required to be considered is the nature of offence. As stated above, the offence is under Section 354 and other offences have not been held to be established and having regard to the totality of the facts and Page 7 of 9 HC-NIC Page 7 of 9 Created On Fri Jan 19 23:06:39 IST 2018 R/CR.A/1245/2016 ORDER circumstances, the benefit deserves to be granted for which the report is required to be called for.
17.Therefore, this court is inclined to grant such benefit and it is desirable to have the report of the Probation Officer in the first instance which would reflect about the antecedents or the general behaviour of the Appellant - Original Accused and also his impression in the society. Therefore, it is directed that the report of the Probation Officer under Section 4 of the Probation of Offenders Act 1958 may be called for and may be placed before this court after a period of four weeks.
18. Therefore, Criminal Appeal No. 1245 of 2016 as well as Criminal Appeal No. 1343 of 2016 are kept for the report of the Probation Officer, which shall be placed on record of this case for further orders after the report is received.
19.A copy of this order may be made available to the learned APP Ms. Hansa Punani to expedite the report of the Probation Officer and shall communicate accordingly to the appropriate authority - Probation Officer concerned.
20.Both the Criminals being Criminal Appeal No. 1245 of 2016 and Criminal Appeal No. 1343 of 2016 are adjourned to 22.12.2017 at 4:30 PM.
Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri Jan 19 23:06:39 IST 2018 R/CR.A/1245/2016 ORDER (RAJESH H.SHUKLA, J.) JNW Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri Jan 19 23:06:39 IST 2018