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Judgments of Supreme Court of India and High Courts

Manoj Kumar vs State Of Himachal Pradesh on 22 April, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.210 of 2011 with

.

Cr. Revision No.213 of 2011.

Judgment reserved on: 16.04.2019.

Date of decision: 22nd April, 2019.

1. Cr. Revision No. 210 of 2011.

Manoj Kumar …….Petitioner.

Versus
State of Himachal Pradesh ……Respondent.

2. Cr. Revision No. 213 of 2011.

Manoj Kumar …….Petitioner.

Versus

State of Himachal Pradesh ……Respondent.

Coram

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

Whether approved for reporting?1 No

For the Petitioner(s) : Mr. Naveen K. Bhardwaj, Advocate.

For the Respondent : Mr.Vinod Thakur, Additional
Advocate General with
Mr.Bhupinder Thakur, Deputy
Advocate General and Mr. Ram Lal
Thakur, Assistant Advocate
General.

1

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

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2

Tarlok Singh Chauhan, Judge.

Since both these petitions emanate from the same

.

incident, therefore, they were taken up together for hearing and are

being disposed of by a common judgment.

2. These revision petitions under Sections 397 and 401 of

the Code of Criminal Procedure is directed against the judgment

passed by the learned Additional Sessions Judge, Mandi, on

16.06.2011, whereby he affirmed the judgment of conviction and

sentence as passed by the learned Sub Divisional Judicial

Magistrate, Chachiot at Gohar, District Mandi, on 27.05.2008

whereby the petitioners were convicted under Sections 341, 354 and

506 of IPC.

3. Briefly stated the case of the prosecution is that the

prosecutrix along with her friend (names of both with-held) on

27.02.2006 like always left home to attend stitching classes and at

about 4.00 p.m. while they were returning to their home through the

‘jungle’, the petitioners, who were known to both the prosecutrix,

came there. They initially stopped their path and thereafter

embraced the prosecutrix in their arms and started asking them to

open their ‘salwars’ and when both the prosecutix started shouting,

the petitioners left them and showed them a knife and threatened to

kill the prosecutrix in case the incident was revealed to any person.

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The matter was thereafter reported to the police and an FIR Ex.

PW2/A was registered. Investigation of the case was conducted by

.

PW-5 ASI Mohan Lal. Medical examination of the prosecutrix was

conducted vide MLC Ex. PW1/C pursuant to the application moved

to this effect in which it was revealed that in the case of one of the

prosecutrix, she suffered simple injuries and other prosecutrix was

found to have suffered abrasion on the dorsum of the right hand

brownish and discoloration. The nature of the injuries was stated to

be simple vide MLC Ex. PW1/B. The Investigating Officer visited the

spot and prepared site plan Ex. PW5/A. Statements of the witnesses

were recorded as per their version and after completion of the

investigation, challan was prepared and presented in the Court.

4. The learned trial Court found sufficient reasons for

summoning the petitioners for the commission of offence punishable

under Sections 341, 354 and 506 of IPC and accordingly put them

notice of accusation to which they pleaded not guilty and claimed

trial.

5. The prosecution examined as many as six witnesses in

all. The petitioners in their statements under Section 313 Cr.P.C.

denied the prosecution story in its entirety. Statement of Sohan Lal

was recorded in defence.

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6. The learned trial Court after evaluating and appreciating

the evidence, convicted the petitioners and directed them to undergo

.

simple imprisonment for a period of six months each under Section

354 IPC and to pay a fine of Rs.300/- each and in default of payment

of fine, they were directed to undergo simple imprisonment for 10

days. The petitioners were further directed to undergo simple

imprisonment for a period of three months each under Section 506

IPC and to pay fine of Rs. 200/- each and in default of payment of

fine, they were further directed to undergo simple imprisonment for 5

days. Under Section 341 IPC, the petitioners were directed to

undergo simple imprisonment for a period of 15 days. All the

sentences were directed to run concurrently.

7. Aggrieved by the judgment of conviction and sentence

passed by the learned trial Magistrate, the petitioners preferred an

appeal before the learned Additional Sessions Judge, Mandi, who

dismissed the same, constraining them to file the instant revision

petitions.

8. It is vehemently argued by Shri Naveen K. Bhardwaj,

learned counsel for the petitioners that the judgments passed by the

learned Courts below are perverse and, therefore, deserve to be set

aside.

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9. On the other hand, Shri Vinod Thakur, learned

Additional Advocate General would submit that it is settled law that

.

the revisional Court does not function as a Court of appeal and

cannot re-appreciate the evidence and, therefore, the judgments of

conviction and sentence as passed by the learned Courts below

warrant no interference.

10. I have heard the learned counsel for the parties and

have also gone through the records of the case.

11. However, before I deal with the contentions put-forth by

the learned counsel for the petitioners, it would be necessary to

delineate the scope and power of this Court while dealing with

revision petitions of the instant kind.

12. This Court has very limited revisionary jurisdiction as

held by this Court in Criminal Revision No. 50 of 2011, titled as

Rajinder Singh vs. State of Himachal Pradesh, decided on

13.9.2017, wherein the scope of criminal revision has been

delineated in the following manner:-

“In Amur Chand Agrawal vs. Shanti Bose and another,
AIR 1973 SC 799, the Hon’ble Supreme Court has held that
the revisional jurisdiction should normally be exercised in
exceptional cases when there is a glaring defect in the
proceedings or there is a manifest error of point of law and
consequently there has been a flagrant miscarriage of
justice.

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In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the
Hon’ble Supreme Court after placing reliance upon a large

.

number of its earlier judgments including Akalu Aheer vs.
Ramdeo Ram, AIR 1973, SC 2145, held that the power,
being discretionary, has to be exercised judiciously and not

arbitrarily or lightly. The Court held that “judicial discretion, as
has often been said, means a discretion which is informed
by tradition methodolised by analogy and discipline by

system”.

In Pathumma and another vs. Muhammad, AIR 1986, SC
1436, the Hon’ble Apex Court observed that High Court

“committed an error in making a re-assessment of the

evidence” as in its revisional jurisdiction it was “not justified
in substituting its own view for that of the learned Magistrate
on a question of fact”.

In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC
1721, the legal position regarding scope of revisional

jurisdiction was summed up by the Hon’ble Supreme Court

in the following terms:

“It is only in glaring cases of injustice resulting from some
violation of fundamental principles of law by the trial court,

that the High Court is empowered to set aside the order of
the acquittal and direct a re-trial of the acquitted
accused. From the very nature of this power it should be
exercised sparingly and with great care and caution. The
mere circumstance that a finding of fact recorded by the
trial court may in the opinion of the High Court be wrong,
will not justify the setting aside of the order of acquittal and
directing a re-trial of the accused. Even in an appeal, the
Appellate Court would not be justified in interfering with an
acquittal merely because it was inclined to differ from the
findings of fact reached by the trial Court on the
appreciation of the evidence. The revisional power of the
High Court is much more restricted in its scope.”

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In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26,
Hon’ble Supreme court cautioned the revisional Courts not

.

to lightly exercise the revisional jurisdiction at the behest of a

private complainant.

In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126

II (1992) CCR 458 (SC), the Hon’ble Supreme Court held
that in exercise of the revisional powers, it is not permissible
for the Court to re-appreciate the evidence.

In Ramu alias Ram Kumar and others vs. Jagannath AIR
1994 SC 26 the Hon’ble Supreme Court held as under:

r “It is well settled that the revisional jurisdiction conferred on

the High Court should not be lightly exercised particularly
when it was invoked by a private complaint.”

In Kaptan Singh and others vs. State of M.P. and another,
AIR 1997 SC 2485 II (1997) CCR 109 (SC), the Hon’ble

Supreme Court considered a large number of its earlier
judgments, particularly Chinnaswami vs. State of Andhra

Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju
Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu,

AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh,
AIR 1981 SC 1415 and held that revisional power can be

exercised only when “there exists a manifest illegality in the
order or there is a grave miscarriage of justice”.

In State of Kerala vs. Puttumana Illath Jathavedan
Namboodiri (1999) 2 SCC 452, the Hon’ble Supreme Court
held as under:

“In Its revisional jurisdiction, the High Court can call for and
examine the record of any proceedings for the purpose of
satisfying itself as to the correctness, legality or propriety of
any finding, sentence or order. In other words, the

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jurisdiction is one of Supervisory Jurisdiction exercised by
the High Court for correcting miscarriage of justice. But the
said revisional power cannot be equated with the power of

.

an Appellate Court nor can it be treated even as a second

Appellate Jurisdiction. Ordinarily, therefore, it would not be
appropriate for the High Court to re-appreciate the
evidence and come to its own conclusion on the same
when the evidence has already been appreciated by the

Magistrate as well as the Sessions Judge in appeal, unless
any glaring feature is brought to the notice of the High
Court which would otherwise tantamount to gross
miscarriage of justice.”

In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338,

the Hon’ble Supreme Court held as under:

“The High Court in exercise of its revisional power has
upset the concurrent findings of the Courts below without
r in any way considering the evidence on the record and
without indicating as to in what manner the courts below

had erred in coming to the conclusion which they had
arrived at. The judgment of the High Court contains no
reasons whatsoever which would indicate as to why the
revision filed by the respondent was allowed. In a sense, it
is a non-speaking judgment.”

13. Here, it would be necessary to understand the meaning

of ‘modesty’ as also the essential ingredients of Section 354 of the

IPC, which have been considered in detail in Rupan Deol Bajaj

(Mrs) and Another versus Kanwar Pal Singh Gill and Another,

(1995) 6 SCC 194, and it has held as under:-

“14. Since the word “modesty” has not been defined in the
Indian Penal Code we may profitably look into its dictionary
meaning. According to Shorter Oxford English Dictionary
(Third Edition) modesty is the quality of being modest and in
relation to woman means “womanly propriety of behaviour;
scrupulous chastity of thought, speech and conduct”. The
word “modest” in relation to woman is defined in the above

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dictionary as “decorous in manner and conduct; not forward
or lewd; shamefast”, Webster’s Third New International

.

Dictionary of the English language defines modesty as

“freedom from coarsensess, indelicacy or indecency; a
regard for propriety in dress, speech or conduct”. In the

Oxford English Dictionary (1933 Ed) the meaning of the
word ‘modesty’ is given as “womanly propriety of behaviour;
scrupulous chastity of thought speech and conduct (in man
or woman); reserve or sense of shame proceeding from

instinctive a version to impure or coarse suggestions”.

15. In State of Punjab v. Major Singh, AIR 1967 SC 63, a

question arose whether a female child of seven and a half

months could be said to be possessed of ‘modesty” which
could be outraged. In answering the above question
Mudholkar J., who along with Bachawat J. spoke for the

majority, held that when any act done to or in the presence
of woman is clearly suggestive of sex according to the
common notions of mankind that must fall within the

mischief of Section 354, IPC. Needless to say, the ‘common

notions of mankind’ referred to by the learned Judge have to
be gauged by contemporary societal standards. The other
learned Judge (Bachawat, J.) observed that the essence of

a woman’s modesty is her sex and from her very birth she
possesses the modesty which is the attribute of her sex.
From the above dictionary meaning of ‘modesty’ and the
interpretation given to that word by this Court in Major
Singh’s case, (AIR 1967 SC 63) (supra) it appears to us
that the ultimate test for ascertaining whether modesty has
been outraged is, is the action of the offender such as could
be perceived one which is capable of shocking the sense of
decency of a woman. When the above test is applied in the

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present case, keeping in view the total fact situation, it
cannot but be held that the alleged act of Mr. Gill in slapping

.

Mrs. Bajaj on her posterior amounted to ‘outraging of her

modesty’ for it was not only an affront to the normal sense of
feminine decency but also an affront to the dignity of the

lady – “sexual overtones” or not, notwithstanding.”

14. In Vidyadharan versus State of Kerala, (2004) 1 SCC

215, the Hon’ble Supreme Court, observed as under:-

“9. In order to constitute the offence under S. 354 mere
knowledge that the modesty of a woman is likely to be

outraged is sufficient without any deliberate intention having

such outraged alone for its object. There is no abstract
conception of modesty that can apply to all cases. (See
State of Punjab v. Major Singh (AIR 1967 SC 63). A

careful approach has to be adopted by the Court while
dealing with a case alleging outrage of modesty. The

essential ingredients of the offence under S. 354, I.P.C. are
as under :

(i) that the person assaulted must be a woman;

(ii) that the accused must have used criminal force on
her, and .

(iii) that the criminal force must have been used on
the woman intending thereby to outrage her modesty.

10. Intention is not the sole criteria of the offence punishable
under S. 354, I.P.C. and it can be committed by a person
assaulting or using criminal force to any woman, if he knows
that by such act the modesty of the woman is likely to be
affected. Knowledge and intention are essentially things of

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the mind and cannot be demonstrated like physical objects.
The existence of intention or knowledge has to be culled out

.

from various circumstances in which and upon whom the

alleged offence is alleged to have been committed. A victim
of molestation and indignation is in the same position as an

injured witness and her witness should receive same weight.
In the instant case after careful consideration of the
evidence, the trial Court and the High Court have found the
accused guilty. As rightly observed by the Courts below S.

3(1)(xi) of the Act which deals with assaults or use of force
on any woman belonging to Scheduled Caste or Scheduled
Tribe with intent to or dishonour or outrage her modesty is

an aggravated form of the offence under S. 354, I.P.C. The

only difference between S. 3(1)(xi) and S. 354 is essentially
the caste or the tribe to which the victim belongs. If she
belongs to Scheduled Caste or Scheduled Tribe, S. 3(1)(xi)

applies. The other difference is that in S. 3(1)(xi) dishonour
of such victim is also made an offence. Section 448 provides
for punishment relating to house trespass. In order to

sustain the conviction under S. 448, I.P.C. It must be found

that the intention of the accused was to commit an offence
or to intimidate, insult or annoy the complainant. There must

be unlawful entry and there must be proof of one or other of
the intentions mentioned in S. 441, I.P.C. In the case at hand
evidence clearly establishes the commission of offence
punishable under S. 448.”

15. In Raju Pandurang Mahale versus State of

Maharashtra and another, (2004) 4 SCC 371, the Hon’ble

Supreme ruled as under:-

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“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.”

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13

13. Modesty is defined as the quality of being modest; and in
relation to woman. “Womanly propriety of behaviour;

.

scrupulous chastity of thought, speech and conduct.” It is

the reserve or sense of shame proceeding from instinctive
aversion to impure or coarse suggestions. As observed by

Justice Patterson in Rex v. James Llyod (1876) 7 C and P

817.

In order to find the accused guilty of an assault with

intent to commit a rape, Court must be satisfied that
the accused, when he laid hold of the prosecutrix, not
only desired to gratify his passions upon her person
r but that he intended to do so at all events, and

notwithstanding any resistance on her part.

The point of distinction between an offence of attempt to
commit rape and to commit indecent assault is that there

should be some action on the part of the accused which
would show that he was just going to have sexual

connection with her.

14. Webster’s Third New International Dictionary of the
English Language defines modesty as “freedom from

coarseness, indelicacy or indecency; a regard for propriety
in dress, speech or conduct”. In the Oxford English
Dictionary (1933 Edn.), the meaning of the word ‘modesty’ is
given as “womanly propriety of behaviour; scrupulous
chastity of thought, speech and conduct (in man or woman);
reserve or sense of shame proceeding from instinctive
aversion to impure or coarse suggestions”.

15. In State of Punjab v. Major Singh, (AIR 1967 SC 63) a
question arose whether a female child of seven and a half

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14

months could be said to be possessed of ‘modesty’ which
could be outraged. In answering the above question the

.

majority view was that when any act done to or in the

presence of a woman is clearly suggestive of sex according
to the common notions of mankind that must fall within the

mischief of Section 354, IPC. Needless to say, the “common
notions of mankind” referred to have to be gauged by
contemporary societal standards. It was further observed in
the said case that the essence of a woman’s modesty is her

sex and from her very birth she possesses the modesty
which is the attribute of her sex. From the above dictionary
meaning of ‘modesty’ and the interpretation given to that

word by this Court in Major Singh’s case (supra) the ultimate

test for ascertaining whether modesty has been outraged is
whether the action of the offender is such as could be
perceived as one which is capable of shocking the sense of

decency of a woman. The above position was noted in
Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh
Gill and another, (1995 (6) SCC 194). When the above test

is applied in the present case, keeping in view the total fact

situation, the inevitable conclusion is that the acts of
accused appellant and the concrete role he consistently

played from the beginning proved combination of persons
and minds as well and as such amounted to “outraging of
her modesty” for it was an affront to the normal sense of
feminine decency. It is further to be noted that Section 34
has been rightly pressed into service in the case to fasten
guilt on the accused-appellant, for the active assistance he
rendered and the role played by him, at all times sharing the
common intention with A-4 and A-2 as well, till they

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completed effectively the crime of which the others were
also found guilty.”

.

16. Bearing in mind the aforesaid exposition of law, it would

be noticed that the entire prosecution case rests upon the shoulder

of the prosecutrix, who in their respective statements have

categorically stated that when they were returning home from Gohar

and reached at ‘Chola Nala’, the petitioners caught hold of them

upon which they shouted for help which made the petitioners to run

away from the spot. The petitioners threatened them with a knife

before leaving the spot in case the prosecutrix narrated this incident

to anyone and thereafter fled away from the spot.

17. The prosecutirx narrated the incident to their parents. In

the cross examination, the prosecutrix did admit that the place

where they were caught hold of was a common passage and the

petitioners had enquired about their names and only thereafter

caught hold of them. They further stated that the petitioner had

dragged them for a distance, but significantly, the prosecutrix

admitted that the matter was compromised and she had agreed not

to initiate any proceedings against them. However, the prosecutrix

admitted that the petitioners did not have any knife. This is the

entire evidence apart from the hearsay evidence including those of

father and relative of the prosecutrix. One thing is clear that as

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regards the evidence, there is inconsistency in the testimonies of

both the prosecutrix regarding the incident. At the same time, it

.

cannot be ignored that thereafter the parties had compromised the

matter, meaning thereby that the incident as alleged had in fact

taken place and, therefore, no fault can be found with the judgments

of conviction and sentence passed by the learned Courts below.

18. However, Shri Naveen K. Bhardwaj, Advocate, would

submit that even the Courts below have concurrently found the

petitioners guilty for the commission of the offence, but the fact still

remains that the petitioners were 18 and 23 years of age at the

relevant time and moreover the parties have compromised the

matter. He would further argue that the incident had taken place

more than 13 years back and, therefore, the petitioners should be

extended benefit of Probation of Offenders Act.

19. There can be no dispute that the modesty of a woman

has to be strongly guarded and any attempt to misbehave and

sexually assault any woman is one of the most depraved acts. But

then, it also cannot be ignored that the offence took place more than

nearly 13 years back and the petitioners have already faced the

pangs and suffered agony of protracted trial and now the petitioners

are settled in life and in case they are sentenced, they shall be

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stigmatized and their lives will be ruined. Therefore, a lenient view

may be taken or else they shall be stigmatized in case they are sentenced.

.

20. Section 4 of the Probation of Offenders Act empowers

the Court to release the convict on entering into a bond, with or

without sureties, on probation when he is found guilty of committing

any offence not punishable with death or imprisonment for life.

Relevant portion of Section 4 is reproduced as under:-

“4.Power of court to release certain offenders on
probation of good conduct.-(1) When any person is found

guilty of having committed an offence not punishable with

death or imprisonment for life and the court by which the
person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the

offence and the character of the offender, it is expedient to
release him on probation of good conduct, then,
notwithstanding anything contained in any other law for the

time being in force, the court may instead of sentencing him

at once to any punishment direct that he be released on his
entering into a bond, with or without sureties, to appear and

receive sentence when called upon during such period, not
exceeding three years, as the court may direct, and in the
meantime to keep the peace and be of good behavior;

Provided that the court shall not direct such release of
an offender unless it is satisfied that the offender or his
surety, if any, has a fixed place of abode or regular
occupation in the place over which the court exercises
jurisdiction or in which the offender is likely to live during the
period for which he enters into the bond.”

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21. For exercising the power which is discretionary, the

Court has to consider various circumstances of the case, like the

.

nature of the offence and the character of the offender. While

considering the nature of the offence, the Court must take realistic

view of the gravity of the offence, the impact which the offence had

on the victim, the benefit available to the accused under this

provision is subject to the limitation embodied in the provision as is

evident from the use of the word “may” which clearly indicates that

the discretion vested with the Courts whether to release the offender

in exercise of the power under Sections 3 or 4 of the Act having

regard to the nature of the offence and character of the offender and

over all circumstances of the case. The powers under Section 4 of

the Act vest with the Court when any person is found guilty of the

offence committed not punishable with death or imprisonment for

life. This power can be exercised by the Courts while finding the

person guilty and if the Courts come to a conclusion by considering

the circumstances of the case including the nature of the offence

and the character of the offender, benefit should be given to the

accused. Obviously, this power is not available and can be exercised

by the Court even at the appellate stage.

22. Having regard to the rival contentions of the learned

counsel for the parties and having gone through the circumstances

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19

emanating from the record and after in depth consideration of the

entire matter, I find no legal impediment for considering the case of

.

the petitioners for grant of probation, particularly, in light of the fact

that the incident in this case (i) pertains to the year 2006; (ii) the

petitioners have already faced the pangs and suffered agony of

protracted trial and appeal/revision for the last more than 13 years.

23. Even the modern trend of penology also leads to the

reformation of the offender so as to make him useful citizen of the

society. No useful purpose is otherwise going to be achieved by

again sending the petitioners to jail.

24. Accordingly, let the Probation Officer of the area

concerned where the petitioners permanently reside place before

this Court his report(s) qua the antecedents of the petitioners on or

before next date of hearing.

List on 28.05.2019.

22nd April, 2019. (Tarlok Singh Chauhan),

(krt) Judge.

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