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Judgments of Supreme Court of India and High Courts

Bidhi Chand vs State Of Himachal Pradesh on 23 March, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr. Revision No. 11 of 2010.

Judgment reserved on: 19.03.2018.

Date of decision: 23rd March, 2018.

Bidhi Chand …….Petitioner.

Versus

State of Himachal Pradesh ……Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting? 1No
For the Petitioner : Mr. Lakshay Thakur, Advocate.

For the Respondent : Mr.Vinod Thakur and Mr.Sudhir

Bhatnagar, Additional Advocate
Gener als with Mr.Bhupinder Thakur,
Deputy Advocate General.

Tarlok Singh Chauhan, Judge .

This criminal revision petition has been filed against the

judgment passed by learned Additional Sessions Judge, Fast Track

Court, Hamirpur, H.P., on 11.12.2009, in Criminal Appeal No.49 of

2007, whereby he affirmed the judgment of conviction and sentence

passed by learned Judicial Magistrate Ist Class, Court No.2, Hamirpur,

on 23.11.2007/26.11.2007, in Police Challan No.9-I-2006.

2. Brief facts of the case are that the complainant lodged a

complaint against the petitioner pursuant to which FIR No. 141/2005

came to be registered against him under Sections 354, 323 and 506

IPC. It was alleged that on 27.07.2005 at about 7.20 p.m. at place

Dakehra, the complainant had gone to fetch water from the water

source and when she reached there, the petitioner called her and

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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2

thereafter groped her with an intention to outrage her modesty and in

this incident she sustained injuries. The complainant raised hue and cry

.

that attracted the attention of Raksha Devi, Babli Devi and Biasan Devi,

who rushed to the spot and this led to the petitioner to flee from the

spot. However, before doing so, he extended threats to the

complainant to do away with her life. The petitioner had used criminal

force against the complainant with intent to outrage her modesty. The

complainant was examined vide MLC Ex.PW4/A which established that

she had sustained injuries even though the same were simple in nature

and the probable duration of injuries was less than six hours. Even the

petitioner was medically examined vide MLC Ex.PW8/A and was found

to have sustained simple injuries. The matter was investigated and

thereafter challan against the petitioner was prepared under the

aforesaid sections to which he pleaded not guilty and claimed trial.

3. After completion of the prosecution evidence, the petitioner

was examined under Section 313 Cr.P.C. wherein he denied the

circumstances appearing in the prosecution case.

4. The learned trial Court af ter recording and evaluating the

evidence convicted and sentenced the petitioner to undergo simple

imprisonment for three months and also to pay fine of Rs.1,000/- under

Section 354 IPC and in default of payment of fine, the petitioner was

directed to undergo simple imprisonment for 15 days, under Section

323 IPC the petitioner was directed to undergo simple imprisonment for

three months and to pay fine of Rs.1,000/- and in default of payment of

fine, he was directed to undergo simple imprisonment for 15 days and

under Section 506 IPC the petitioner was directed to undergo simple

imprisonment for three months and fine of Rs.1,000/- was imposed on

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him. In default of payment of fine, the petitioner was directed to undergo

simple imprisonment for 15 days. All the sentences were directed to

.

run concurrently.

5. In appeal, the learned Additional Sessions Judge affirmed

the conviction and sentence so passed by the learned trial Magistrate.

6. Aggrieved by the judgments rendered by the learned

Courts below, the petitioner has filed the instant revision petition.

7. It is vehemently argued by Mr. Lakshay Thakur, learned

counsel for the petitioner that the findings recorded by the learned

Courts below are perverse and, therefore, deserve to be set-aside and

in any case the sentence, as imposed, is harsh and, therefore, a lenient

view deserves to be taken in this case. Whereas, the learned

Additional Advocate General, would support the impugned judgments

by contending that since the petitioner is an accused of a crime against

the woman and the same has been duly dealt with by utmost sensitivity,

therefore, call for no interference.

I have heard the learned counsel for the parties and gone

through the records of the case.

8. 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.

9. At the outset, it may be observed that the revisionary

jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited

and this Court would only interfere in case the petitioner has been

convicted and sentenced by examining the material placed on record

with a view to ascertain that the judgments so rendered by the learned

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Courts below are not perverse and are based on the correct

appreciation of evidence on record. This Court would definitely interfere

.

in case it comes to the conclusion that there is a failure of justice and

misuse of judicial mechanism or procedure or where the sentence

awarded is not correct. After all, it is the salutary duty of this Court to

prevent the abuse of justice or miscarriage of justice or/and correct

irregularities, incorrectness committed by the inferior Criminal Court in

its judicial process or illegality of sentence or order. 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.

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”.

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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
r Court is much more restricted in its scope.”

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:

“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”.

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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
r 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 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.”

10. 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 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 New International Dictionary of the
English language defines modesty as “freedom from

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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.”

11. 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

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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
r 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 wo man, 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) 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

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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.”

12. 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 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

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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”.

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

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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.”

13. Adverting to the facts, it would be noticed that the material

witness in this case is the complainant herself, who appeared as PW-1

and fully supported the case set up by her in the FIR. During cross-

examination, the complainant stated that her house and the houses of

Prithvi Chand and Pushpa Devi are situated in the same village. She

has further stated that she was not in talking terms with the petitioner

for 4-5 years and further stated that due to this kind of activities, she did

not talk to the petitioner. She further stated that she had earlier reported

the matter to the Deputy Commissioner, Hamirpur, when the petitioner

had been raising a road. She admitted that she had earlier also given

statements against the petitioner, but denied that a false case was

fastened upon him due to enmity.

14. Other witnesses of the prosecution are Pushpa Devi

(PW-2) and Biasan Devi (PW-3). Even though, PW-2 Pushpa Devi did

not support the case of the prosecution, but nonetheless, in her cross

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examination she admitted that complainant had disclosed to her that

the petitioner had caught hold her from her breasts. Biasan Devi, who

.

appeared as PW-3, also did not support the case of the prosecution

and stated that PW-1 would make false allegations against the

petitioner. Raksha Devi, who appeared as PW-5, has fully supported

the case of the prosecution and during her cross examination, she

denied having any inimical relations with the petitioner.

15. The injuries on the person of the complainant have been

duly proved by Dr. P.C.Saini, who stepped into the witness box as

PW-4 and stated that he had examined PW-1, who had suffered simple

injuries as have been mentioned in MLC Ex.PW4/A and the duration of

such injuries was less than six hours.

16. The statements of other witnesses had already been

discussed by both the learned Courts below and, therefore, reference to

their statements, is not necessary, more particularly, in view of

statements of the complainant as also PW-5 Raksha Devi .

17. At this stage, it is vehemently argued by Shri Lakshay

Thakur, learned counsel for the petitioner that the case set up by the

complainant is absolutely false and it is only on account of ongoing

enmity between the families of the victim and the petitioner that this

case has been fastened upon his client and would further argue that

this fact duly stands supported in the testimony of PW-5, who has

stated that complainant is habitual of making false allegations against

the petitioner. Not only, I find no merit in these contentions, but I find

the same to be fallacious and reprehensible.

18. It is a matter of common experience that in traditional

Indian society no person likes to report about rape, outraging of

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modesty or any other similar allegations which affect the chastity of a

woman as the chastity of a woman is a most valuable thing not only for

.

the person, but for her entire family and, therefore, it is with greater

reluctance that the matters of instant kind are reported.

19. The learned Courts below have correctly appreciated the

oral and documentary evidence available on record and, therefore, the

findings so rendered by them cannot in any manner be termed to be

illegal much less perverse, so as to call for any interference.

20. However, learned counsel for the petitioner would submit

that the petitioner is aged about 47 years and has settled in village and

he is an agriculturist and would be stigmatized in case he is sentenced.

21. 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

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

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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.”

22. 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.

23. 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 consider ation 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

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incident in this case (i) pertains to the year 2005; (ii) the petitioner has

already faced the pangs and suffered agony of protracted trial and

.

appeal/revision for the last nearly 13 years; (iii) he was a young man of

34 years at the time of occurrence.

24. 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.

25. 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 27-04-18.

23rd March, 2018. (Tarlok Singh Chauhan),

(krt) Judge.

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