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Prem Chand vs State Of Himachal Pradesh on 9 March, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 25 of 2007

.

Reserved on: 6.3.2018.

Date of decision: 09.03.2018.

Prem Chand …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. Anoop Chitkara, Advocate.

For the Respondent : Mr. Sudhir Bhatnagar, Addl. Advocate
General, with Mr. Bhupinder Singh, Dy.

Advocate General.

Tarlok Singh Chauhan, Judge

This criminal revision petition has been filed against the

judgment passed by the learned Sessions Judge, Kullu, H.P.

09.11.2006 whereby he affirmed the judgment passed by the

learned Judicial Magistrate 1st Class, Manali, District Kullu, H.P. on

01.08.2005.

2. Brief facts of the case are that the complainant Smt.

Dev Sena was under the period of mensuration w.e.f. 9.5.2004. As

per the custom in the area a lady under such period does not enter

Whet her t he r epor t er s of t he l ocal paper s may be al l owed t o see t he Judgment ? Yes.

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2

in the main house and also the kitchen at least for a period of three

days and used to sleep in Khud (cow-shed). Thus on 10.5.2004 the

.

complainant as usual went to sleep in the ‘Khud’ situated in ground

floor of the house after having her meals. Around 10.00 P.M. her

husband came to the house and she heard him talking with other

persons near stairs of the house and one of such persons with whom

he was talking was recognised by her as Lot Ram, PW-4. The

another person with her husband, however, could not be

recognised by her. Her husband called her and she told him to go

to the upper storey of the house and sleep there and also not to

disturb the children and that now she is also sleeping. Thus,

thereafter, she also went to her bed in the ‘Khud’. It is in the

following morning i.e. on 11.5.2004 around 3.00 a.m. someone

pushed the door of the Khud which was not bolted from inside and

opened it. Someone came inside and started molesting her. She

thought that it is her husband, who had come under the influence

of liquor and as such she asked as to what happened to him

because he is not supposed to touch her when she is mensurating,

but of no avail, and as such when she pushed that person she

found cap having been worn by him on his head. On realizing that

her husband does not wear cap, she switched on the light and

found the petitioner sitting on her bed. She tried to detain him in the

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‘Khud’ by bolting the door, however, unsuccessfully because the

petitioner had pulled the door with force and as a result thereof her

.

right hand fingers got injured and the petitioner managed his

escape by fleeing away from that place. Around 4.00 a.m. she

informed her husband and brother-in-law (Jeth) Yub Raj, PW-3 qua

this incident. They called PW-4 Lot Ram, member Gram Panchayat

to the spot. PW-4 visited the spot. The prosecutrix accompanied by

her husband and brother-in-law visited police station, Patlikuhal and

lodged rapat No.4 Ext.PW-2/A there. The report was sent to Police

Station, Manali where FIR No. 91/2004 under Sections 452, 354 and

323 IPC Ext.PW-5/A was registered against the petitioner.

3. The investigation was conducted by PW-6 Bhim Sen, ASI

and after completion thereof, challan was presented in the Court

and the petitioner was made to stand trial for the aforesaid

offences. The petitioner pleaded not guilty and claimed trial.

4. The prosecution examined six witnesses including

doctor and closed its evidence. Whereas, the petitioner on the

other hand denied the entire prosecution case as being wrong.

5. The statement of petitioner under Section 313 Cr.P.C.

was recorded in which he denied the incriminatory evidence led by

the prosecution. He did not choose to lead any evidence in

defence.

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6. The learned trial Court on considering the evidence on

record, convicted the petitioner under Sections 452, 354 and 323 of

.

I.P.C..

7. In the appeal, learned Sessions Judge affirmed the

sentence so passed by the learned trial court.

8. Aggrieved by the judgments rendered by the learned

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

9. It is vehemently argued by Mr. Anoop Chitkara, 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 women and the same has been

duly dealt with by utmost sensitivity and, therefore, call for no

interference.

I have heard the learned counsel for the parties and

gone through the records of the case.

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

by the learned counsel for the petitioner, it would be necessary to

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delineate the scope and power of this Court while dealing with

revision petition of the instant kind.

.

11. 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.

12. 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”.

13. 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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14. 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.”

15. 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.

16. 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.

17. In Ramu alias Ram Kumar and others vs. Jagannath AIR

1994 SC 26 the Hon’ble Supreme Court held as under:

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“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.”

.

18. 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”.

19. 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

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glaring feature is brought to the notice of the High Court which
would otherwise tantamount to gross miscarriage of justice.”

.

20. 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.”

21. Bearing in mind the aforesaid exposition of law and

restricted scope of revisional jurisdiction, I have proceeded to

analyze in brief the evidence available on record.

22. The material witness in this case is the victim herself,

who has stepped into the witness box as PW-1. A close scrutiny of

her testimony reveals that the complainant was mensurating w.e.f.

9.5.2004 and as per the custom prevalent in the area, she was slept

in the cow-shed (Khud). On 10.5.2004 while she was sleeping, then

at about 10.00 p.m. she found that her husband had returned to

the house alongwith Ward Panch Lot Ram. Husband also wanted to

sleep, however, in the morning at around 3.00 A.M., the petitioner

entered in the Khud and came to her bed. He then pressed her

breasts. The complainant thought that it was her husband and as

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such, started abusing him. However, when she pushed the person

away, his head came into her contact and she found that the

.

person was wearing a cap. On this, she realized that it was not her

husband as he never wore a cap. Then she switched on the lights

and noticed the petitioner sitting on her bed. He being able to

conveniently identified by her, when the complainant tried to close

the door from outside, the petitioner pulled the same with force

and in this process two fingers of her hand got injured. On raising an

alarm by her, her husband and brother-in-law woke up and they

went to call for Lot Ram. The complainant thereafter lodged report

Ext.PW-2/A with the police. She was got medically examined vide

MLC Ext.PW-1/A and X-ray of her finger was also conducted.

23. On being cross-examined, the complainant stated that

her husband Chaman Lal would drink occasionally and denied that

he occasionally wears a cap. She further stated that her husband

had gone to the house of the petitioner about ten years ago and

that the petitioner had two sisters namely Shanta and Kanta.

However, she denied that her husband had outraged their

modesty. She admitted that even today the people of lower castes

do not go to the house of the people belonging to upper castes.

She admitted that she did not tell anything in this behalf to Tule Ram

and Amar Chand nor lodged complaint in the Gram Panchayat.

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She had gone to the Police Station alongwith her brother-in-law Yub

Raj. She denied that neither the petitioner entered in the Khud nor

.

outraged her modesty. It was also denied that the cap Ex.P-1 was

that of her husband and the petitioner was being falsely implicated.

24. The other material witness in this case is Yub Raj,

brother-in-law of the prosecutrix, who has corroborated the entire

prosecution story from the stage when the complainant raised an

alarm and he woke up. This witness further stated that he had

brought PW-4 Lot Ram, who after visiting the spot had gone to the

house of the petitioner, however, he was not present there. He had

accompanied the complainant to Police Post, Patlikuhal where

rapat Ext.PW-2/A was lodged. He further stated that the

complainant was medically examined and cap Ex.P-1 was also

taken into possession. He also identified the cap to be that of the

petitioner as according to him, he had been wearing the same on

each and every day. This witness was cross-examined in length,

however, nothing material could be elicited therefrom. The witness

was cross-examined regarding the distance between the house

and further it was suggested that the husband of the complainant

had gone to the house of the petitioner under the influence of

liquor about 2-3 years ago and had then outraged the modesty of

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his sisters. He further stated that his brother does not wear a cap.

Rests of the suggestions were denied by this witness.

.

25. PW-4 Lot Ram is the Ward Panch, who corroborated

the prosecution case and stated that PW-3 Yub Raj and his younger

brother Chuni Lal had come to him at or around 5.00 a.m. and told

him that during the night the petitioner had entered into the room

of the complainant and that though she had to detain him inside

the room, however, when she was bolting the door her hand

pressed therewith and resulted into injuries on her fingers. He had

inspected the spot and found lying the cap there. Thereafter, they

went to Police Post, Patlikuhal and lodged report there. He further

stated that the cap Ex.P-1 was taken into possession by the police

vide recovery memo Ext.PW-2/B to which he is a signatory. This

witness was cross-examined at length, but again nothing adverse

could be elicited from him. He denied that the cap was not that of

the petitioner and further stated that the husband of the

complainant never wears/wore cap. He further denied that he was

made to sign on blank papers by the police.

26. From the testimonies as have been set-out above, it

would be abundantly clear that all the ingredients of commission of

offences punishable under Sections 452, 354 and 323 IPC have

been proved beyond reasonable doubt and it was the petitioner,

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who had entered the Khud where the complainant was sleeping

with an intention to outrage her modesty. Not only this, he came to

.

her bed and pressed her breasts. Further it is proved on record that

the complainant received injuries on her two fingers of right hand

during the process of bolting the door from outside with a view to

detain the petitioner inside the room and thus has committed

commission of an offence under Section 323 IPC.

27. At this stage, the learned counsel for the petitioner

would vehemently argue that the statements of the witnesses,

referred to above, cannot be looked into as these all witnesses are

related and interested witnesses. However, I am afraid that such

contention is totally misplaced as a natural witness or the only

possible eye witness cannot always be termed as ‘interested

witness’. It is more than settled that evidence of an interested

witness is not to be equated with that of a tainted witness or that of

an approver so as to require corroboration as a matter of necessity.

The evidence of interested witnesses, even if it is assumed, does not

suffer from any infirmity as such, but the Courts require as a rule of

prudence, not as a rule of law, that the evidence of such witnesses

should be scrutinized with a little care. Once the approach is made

and the Court is satisfied that the evidence of the interested

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witnesses has a ring of truth, such evidence can be relied upon

even without corroboration.

.

28. I find the evidence of the witnesses, referred to above,

to be credible notwithstanding that they were related to the

complainant. Not only this, the evidence so led by them has been

discussed threadbare and appreciated by the learned Courts

below and even otherwise there is no glaring feature brought to the

notice of this Court which otherwise tantamounts to gross

miscarriage of justice so as to compel this Court to re-appreciate

the evidence.

29. Having said so, I really do not find any merit so as to call

for any interference in this revision petition. However, learned

counsel for the petitioner would submit that the petitioner is aged

about 45 years and has settled in the village and he is an

agriculturist and would be stigmatized in case he is sentenced.

30. 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

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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.”

31. 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 the circumstances of the case. The powers

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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

available and can be exercised by the court even at the appellate

stage. r

32. 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

for the last more than 14 years; (iii) he was a young man of 31 years

at the time of occurrence.

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

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

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

again sending the petitioner to jail.

.

34. 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 17.04.2018.

9th March, 2018.

(GR)
r to (Tarlok Singh Chauhan)
Judge

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