Ramesh vs State (2024:Rj-Jp:11886) on 7 March, 2024

[Cites 31, Cited by 0]

Rajasthan High Court - Jaipur

Ramesh vs State (2024:Rj-Jp:11886) on 7 March, 2024

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 178/1994
Ramesh s/o Kanha, aged 25 years, r/o Sangaheda, Police
Station Khanpur, District Jhalawar
----Appellant/accused
Versus
State of Rajasthan
----Respondent

For Appellant(s) : Mr. H.C. Ganesiya with
Mr. M.L. Sharma
For Respondent(s) : Mr. Sanjeev Mahla, learned PP
Addl. Govt. Advocate

HON'BLE MR. JUSTICE GANESH RAM MEENA

Judgment

07/03/2024

1. Heard learned counsel for the accused appellant,

learned Addl. Govt. Advocate for the State and perused the

record.

2. The present criminal appeal has been preferred

against the judgment dated 28.02.1994 passed by the Court

of learned Sessions Judge, Jhalwar (Rajasthan) [for short 'the

learned trial court'] in Sessions Case No.340/1992, whereby

the learned trial court convicted the accused appellant for the

offence under section 376/511 IPC and sentenced to undergo

four years rigorous imprisonment and a fine of Rs.500/-. In

default of payment of fine, the accused appellant is to further

undergo additional two months simple imprisonment.

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3. As per the prosecution case, FIR No. 137/1992

(Ex.P2) was got registered at Police Station Khanpur, District

Jhalawar for the offences under sections 376 and 511 IPC. In

the FIR it was alleged that on 01.07.1992 the complainant

and her daughter aged about 7 years were taking bath at

Nagli river. After taking bath the father of the victim sent the

victim along-with accused Ramesh for village and the father

of the victim went to in his relation. It is alleged that accused

Ramesh on the way to the house sexually assaulted the

victim i.e. daughter of the complainant and during that

incident, the victim started weeping and then Kanhaiyalal

came to the spot and the accused ran away.

4. After completion of the investigation, the police

submitted the charge-sheet against the accused appellant for

the offence under section 376/511 IPC.

5. The case was committed to the Court of Session for

trial. The learned trial court framed the charges for the

offence under section 376 read with section 511 IPC, to which

the accused appellant denied and opted for trial.

6. From the prosecution side, the statements of PW1

Victim (X), PW2 Shivlal, PW3 Sushila, PW4 Radhey Shyam,

PW5 Kanhaiya Lal and PW 6 Radhey Shyam were recorded.

7. The statement of the accused appellant was

recorded under section 313 CrPC. The accused appellant in

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his statement has stated that the complete evidence is not

trust-worthy.

8. After hearing the parties, the learned trial court

vide its judgment dated 28.02.1994 convicted and sentenced

the accused appellant for the offences mentioned above.

9. Counsel for the accused appellant submits that the

prosecution story is false and fabricated one and there is no

trust worthy evidence on record against the accused

appellant and further he submitted that the offence has not

been proved against the accused appellant beyond

reasonable doubt. Counsel also submitted that there are

contradictory evidence in regard to making the victim naked.

Counsel also submitted that even if the prosecution story is

believed then the accused appellant at the most could be

convicted for the offence under section 354 IPC.

10. Learned Addl. Govt. Advocate has opposed the

appeal and has submitted that there is no material

irregularity or illegality committed by the learned trial court

and keeping in view the evidence on record, the accused

appellant has been rightly convicted.

11. The learned trial court has convicted the accused

appellant for the offence under section 376/511 IPC, though

PW1-Victim (X) in her statement recorded by the learned trial

court has stated that the accused got the victim (X) sit in his

lap when he was naked. On hearing the weeping of the victim

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(X), Kanhaiya Dada came and rescued her. In cross-

examination the victim (X) has further stated that the

accused has committed rape with her. The only alleged eye-

witness of the incident Kanhaiya Lal has stated that he saw

the accused committing sexual assault with the victim and

when the accused appellant saw him, he ran away.

12. Section 375 IPC defines the rape, which is as

under:-

"375. Rape.--A man is said to commit "rape" if he
--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--

First.--Against her will.

Secondly.--Without her consent.

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[2024:RJ-JP:11886] (5 of 19) [CRLA-178/1994] Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.--With or without her consent, when she is under eighteen years of age.

Seventhly.--When she is unable to communicate consent.

Explanation 1.--For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.--A medical procedure or intervention shall not constitute rape. Exception (Downloaded on 12/03/2024 at 08:42:35 PM) [2024:RJ-JP:11886] (6 of 19) [CRLA-178/1994]

2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

13. Section 376 IPC provides for punishment for committing the rape i.e. rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.

14. Section 511 IPC provides for punishment for attempting to commit offences punishable with imprisonment for life and other imprisonment.

15. The victim (X) was not got medically examined.

There is no report of the medical examination of the victim on record and also there is no any evidence that the victim was ever got medically examined.

16. The alleged incident is of 01.07.1992, whereas the FIR was lodged on 05.07.1992 and there is no satisfactory explanation on record about the delay. One of the witness namely; PW6 Radhey Shyam Meena has stated that the Kanhaiya Lal (PW5) told him that the accused appellant has caught hold of victim. One of the witness namely; Sushila (PW3), who is mother of the victim has stated that victim told her that the accused appellant asked her to sit in his lap when he was naked.

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17. Section 354 IPC provides for punishment for assault or criminal force to woman with intent to outrage her modesty.

18. Section 349 IPC defines the 'force' and section 350 IPC defines the 'criminal force'.

19. Taking into consideration the evidence available on record, this Court finds that there is no single evidence on record so as to convict the accused appellant for the offence under section 376/511 IPC more particularly in view of the fact that there is no medical examination report of the victim to support the prosecution story as also the witnesses have made contradictions in regard to such allegations. However, there is evidence of sexual assault against the accused appellant.

20. Taking into consideration the evidence, this Court would like to alter the conviction of the accused appellant from offence under section 376/511 IPC to 354 IPC and therefore, the accused appellant is acquitted from the charge under section 376/511 IPC and is hereby convicted for the offence under section 354 IPC.

21. After altering the conviction, the Court is now considering the case of the accused appellant for awarding appropriate sentence.

22. In the case of Rakesh vs. State of U.P. (Criminal Appeal No.2314 of 2004) decided on (Downloaded on 12/03/2024 at 08:42:35 PM) [2024:RJ-JP:11886] (8 of 19) [CRLA-178/1994] 17.11.2022, the Allahabad High Court Bench at Lucknow, partly allowed the criminal appeal and extended the benefit of probation to the accused appellant therein whose conviction for the offence under section 354 IPC was upheld.

23. Section 360 and 361 of the Code of Criminal Procedure are relevant for the purpose of probation to first offenders. Both these sections are reproduced as under :-

"360. Order to release on probation of good conduct or after admonition.--(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 behaviour:

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[2024:RJ-JP:11886] (9 of 19) [CRLA-178/1994] Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section(2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-

section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him (Downloaded on 12/03/2024 at 08:42:35 PM) [2024:RJ-JP:11886] (10 of 19) [CRLA-178/1994] to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

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[2024:RJ-JP:11886] (11 of 19) [CRLA-178/1994] (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

361. Special reasons to be recorded in certain cases.--Where in any case the Court could have dealt with,-- (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958); or (b) a youthful offender under the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, 135 but has not done so, it shall record in its judgment the special reasons for not having done so."

24. There is one central Legislation on the subject in the name of ''Probation of Offenders Act Act 1958', relevant Section 3 and 4 of are extracted hereunder:-

"3. Power of court to release certain offenders after admonition.--

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[2024:RJ-JP:11886] (12 of 19) [CRLA-178/1994] When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

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 (Downloaded on 12/03/2024 at 08:42:35 PM) [2024:RJ-JP:11886] (13 of 19) [CRLA-178/1994] 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 behaviour: 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. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions (Downloaded on 12/03/2024 at 08:42:35 PM) [2024:RJ-JP:11886] (14 of 19) [CRLA-178/1994] specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

25. A Division Bench of the Allahabad High Court in State of Uttar Pradesh v. Misri Lal and others reported in 1982 CRI. L. J. 1420 has observed as under:-

"26- ...................The application of Section 360 in Utter Pradesh was taken away by an Ordinance of the year 1975. The Ordinance was repealed and replaced by the Criminal P.C. (Uttar Pradesh Amendment) Act, No. 16 of 1976. This Act received the assent of the President on 30-4-1975 and published in the Utter Pradesh Extraordinary Gazette dated 1-5-1976. Section 12 of this Act repealed the Ordinance and laid down that notwithstanding such repeal, anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the provisions of this Act as if this Act had come into force on November, 28, 1975. The learned trial judge decided the case on 2-2-1976. Section 10 of the (Downloaded on 12/03/2024 at 08:42:35 PM) [2024:RJ-JP:11886] (15 of 19) [CRLA-178/1994] Amending Act No. 16 of 1976 amended S.484 of the Code and inserted the following clause (e) after clause (d):-

"(e) .... the United Provinces First Offenders' Probation Act 1938......shall continue in force in the State of Uttar Pradesh .... and accordingly the provisions of Section 360 of this Code shall not apply to that State and the provisions of Section 361 shall apply with the substitution or reference to the Central Acts named therein by references to the corresponding Act in force in that State".

Section 361 of the Cr.P.C. lays down that where in any case the Court could have dealt with an accused person under S.360 or under the provisions of the Probation of Offenders Act, 1958, or a youthful offender under the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgement the special reasons for not having done so.

It follows from this provision read with clause (e) of S.484 mentioned above, the Court is required to record special reasons for not extending the benefit of the provisions of the Utter Pradesh First Offenders' Probation Act, 1938."

26. Coming to the point of desirability of extending the benefit of Probation Act to the Accused/Revisionist in Sitaram Paswan and Anr v. State of Bihar, reported in AIR 2005 SC 3534 Supreme Court held as under:-

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[2024:RJ-JP:11886] (16 of 19) [CRLA-178/1994] "For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. Thebenefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders 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 Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."

27. The Hon'blee Supreme Court in the case Mohd.

Hashim v. State of U.P and Ors., reported in AIR 2017 SC page 660, has observed as under:-

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[2024:RJ-JP:11886] (17 of 19) [CRLA-178/1994] "20-.........In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba Rao, J., speaking for the majority, opined thus:-

"The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."

28. The incident took place way back in the year 1992 and more than three decades have been passed. The accused appellant has suffered in the matter for the last past 30 years and there is no any criminal antecedent of the accused appellant or any kind of dispute between the parties (Downloaded on 12/03/2024 at 08:42:35 PM) [2024:RJ-JP:11886] (18 of 19) [CRLA-178/1994] during these years. The conviction of the accused appellant has been altered from the offence under section 376/511 IPC to section 354 IPC. Therefore, this Court is taking a lenient view because the punishment for the offence under section 354 IPC is imprisonment of either description for a term which shall not be less than one year but it may extend to five years and shall also be liable to fine. There is no punishment of either imprisonment of life or death under the provision of section 354 IPC.

29. The Hon'ble Supreme Couort in the case of Tarak Nath Keshari vs. State of West Bengal (Criminal Appeal No.1444/2023), decided on 10.05.2023 has observed as under:-

"10. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicablity of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh vs. The State of Punjab & Ors."

30. In view of the above, the criminal appeal is partly allowed with the following modifications:-

(i) The conviction of the accused appellant is altered from offence under section 376/511 IPC to section 354 IPC.

Sentence of the accused appellant is modified to the tune that he is provided the benefit of Section 4 of the Probation of (Downloaded on 12/03/2024 at 08:42:35 PM) [2024:RJ-JP:11886] (19 of 19) [CRLA-178/1994] Offenders Act and he is released on probation on the condition that he will keep peace and good conduct for two years from today and shall file two sureties to the tune of Rs.25,000/- each along-with his personal bond before the learned trial court and also an undertaking to the effect that he shall maintain peace and good behaviour during the period of two years from today. The accused appellant will also deposit Rs.50,000/- before the learned trial court within two months from today and the learned trial court will release the amount in favour of PW1-Victim (X). In case, PW1-Victim (X) is not alive, the said amount shall be released in favour of her heirs. In case of breach of any of the conditions mentioned above, is proved, the accused appellant will be subjected to undergo the sentence of two years rigorous imprisonment.

The bonds aforesaid will be filed by the accused appellant within two months from today, before the learned trial court.

31. A certified copy of this judgment be sent to the learned trial court for compliance.

32. The Registry is directed to send back the record of the case to the learned trial court.

(GANESH RAM MEENA),J Sharma NK/Dy. Registrar/5 (Downloaded on 12/03/2024 at 08:42:35 PM) Powered by TCPDF (www.tcpdf.org)

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Rajasthan High Court - Jaipur