Rajinder Singh vs State Of Himachal Pradesh on 13 September, 2017

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.

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record, 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

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charged with the aforesaid offences to which he pleaded not guilty

and claimed trial.

.

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

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father and sister came to the spot. The accused also kicked her and

her bangles were broken. The matter was reported to the police.

.

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.

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12. 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:

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“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.”

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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.”

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21. 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 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

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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.”

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24. In Vidyadharan v. 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 :

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)

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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

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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”.

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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 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

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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

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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

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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.

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32. 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

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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

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any offences 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.”

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

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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

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21

for the last more than 13 years; (iii) he was a young man of 24 years

at the time of occurrence.

.

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

14/09/2017 12:36:18 :::HCHP

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