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Sahab Singh @ Shibba Narwariya vs State Of M.P. on 21 June, 2018

(1) CRR122/2010

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************

SB:- Hon’ble Shri Justice G. S. Ahluwalia

CRR 122/2010

Sahab Singh alias Shibba Narwariya
Vs.
State of MP

Shri Arvind Dwivedi, counsel for the applicant.
Shri BPS Chauhan, Public Prosecutor for respondent/ State.

ORDER

(Passed on 21/06/2018)
This Criminal Revision under Sections 397/401 of CrPC has
been filed against the judgment and sentence dated 02/02/2010,
passed by Sessions Judge, Morena in Criminal Appeal No.72/2009,
thereby affirming the judgment and sentence dated 20/07/2009
passed by JMFC, Morena in Criminal Case No. 5282/2006, by which
the applicant has been convicted for offence under
Section 354 of
IPC and has been sentenced to undergo the rigorous imprisonment
of one year and fine of Rs.200/- with default stipulation.

(2) The necessary facts for the disposal of the present revision, in
short, are that the prosecutrix on 09/11/2006 at about 05:30 pm
had gone to ease herself in an agricultural field situated behind her
house. When she was coming back, the applicant asked her to stop
and with an evil intention caught hold of her hand and started
pulling her towards a particular direction and pressed her breast.
The prosecutrix raised an alarm and after hearing her shouts, her
father-in-law Gaurishankar (PW2) and mother-in-law Ramadevi
(PW4) came on the spot and the applicant ran away after leaving
the prosecutrix. The husband of the prosecutrix, namely, Ramgopal
(PW3) was not in the house and after he came back, then on the
date of the incident itself, the FIR was lodged at 20:15 in the Police
Station Dimni, District Morena. The police registered an offence
(2) CRR122/2010

under Section 354 of IPC. The spot map was prepared. The
statements of the witnesses were recorded and the police, after
completing the investigation, filed charge sheet for offence under
Section 354 of IPC.The trial Court framed the charge under Section
354 of IPC.

(3) The applicant abjured his guilt and pleaded not guilty.

(4) The prosecution, in order to prove its case, examined the
prosecutrix (PW1), Gaurishankar (PW2), Ramgopal (PW3),
Ramadevi (PW4) and Dharm Singh Kushwah (PW5). The applicant
examined Vikram Singh (PW1) and Nihal Singh (DW2) in his
defence.

(5) The trial Court (JMFC, Morena) after considering the
evidence led by the prosecution convicted the applicant for offence
under
Section 354 of IPC by judgment and sentence dated
20/07/2009 passed in Criminal Case No.5282/2006 and sentenced
him to undergo the rigorous imprisonment of one year and fine of
Rs.200/- with default imprisonment.

(6) Being aggrieved by the judgment and sentence dated
20/07/2009 passed by the trial Court, the applicant filed an appeal
which too has suffered dismissal by the judgment and sentence
dated 02/02/2010, passed by Sessions Judge, Morena in Criminal
Appeal No.72/2009.

(7) Challenging the judgment and sentence passed by the
Courts below, it is submitted by the counsel for the applicant that it
is clear from the prosecution case that the father-in-law, namely,
Gaurishankar (PW2) and mother-in-law, namely, Ramadevi (PW4)
are old persons, aged 70 years and 67 years respectively. It is
further submitted that there are certain discrepancies in the
evidence of these witnesses as to whether Gaurishankar (PW2) and
Ramadevi (PW4) were sitting on the platform of their house at the
time of incident or not. It is further submitted by the counsel for
the applicant that it is unrealistic that the applicant would commit
such an offence when he was aware of the fact that the father-in-
law and mother-in-law of the prosecutrix were at nearby place. In
(3) CRR122/2010

the alternative, it is submitted that it appears to be a case of
consent and it is possible that the father-in-law and mother-in-law
of the prosecutrix might have seen the prosecutrix in a
compromise position with the applicant, therefore, a false FIR has
been lodged. It is further submitted that on the spot map, it is
clear that Gaurishankar (PW2) was sitting on the platform situated
outside the house and although the incident had taken place in a
field situated nearby the house of the prosecutrix,but it was not
possible for Gaurishankar (PW2) and Ramadevi (PW4) to hear the
shouts of the prosecutrix. In the alternative, it is submitted by the
counsel for the applicant that the incident took place on
09/11/2006 and more than eleven years have passed from the
date of incident and the applicant has undergone the agony of trial,
appeal as well as criminal revision and, therefore, he may be
awarded the jail sentence of the period for which he has already
undergone by enhancing the fine amount, as the applicant has
remained in jail for sometime after dismissal of the appeal.

(8) Per contra, it is submitted by the counsel for the State that it
is well-established principle of law that in exercise of power under
Section 397/401 of CrPC the findings of fact cannot be interfered
unless and until they are pointed out to be perverse. The findings
given by the trial Court as well as the appellate Court are based on
appreciation of evidence and no perversity could be pointed out by
the counsel for the applicant. The incident had taken place in an
agricultural field situated behind the house of the prosecutrix and
since father-in-law and mother-in-law of the prosecutrix, namely,
Gaurishankar (PW2) and Ramadevi (PW4) were in their house and
the prosecutrix was knowing this fact that her parents-in-law are in
the house, it is beyond imagination that the prosecutrix would
involve herself in consensual activity with the applicant.It is further
submitted that after hearing the shouts raised by the prosecutrix,
the father-in-law and mother-in-law of the prosecutrix, namely,
Gaurishankar (PW2) and Ramadevi (PW4) immediately reached on
the spot and after noticing the above-mentioned witnesses, the
applicant ran away. The First Information Report was lodged within
(4) CRR122/2010

three and half hours of the incident and as the FIR was lodged with
promptness, it is clear that the allegations made in the FIR were
true and were not made after any deliberation. So far as the prayer
made by counsel for the applicant that the applicant may be
awarded the jail sentence of the period for which he has already
undergone by enhancing the fine amount is concerned, it is
submitted by the counsel for the State that the minimum sentence
provided for an offence under
Section 354 of IPC is one year and
the trial Court has already awarded the minimum jail sentence to
the applicant. Therefore, the sentence awarded by the trial Court
does not call for any interference.

(9) Heard the learned counsel for the parties.

(10) It is clear from the evidence which has come on record, that
the prosecutrix (PW1) had gone to an agricultural field situated
behind her house in order to ease herself and when she was
coming back, at about 05:30 in the evening, the applicant caught
hold of her hand with an evil intention and tried to pull her towards
a particular direction and pressed her breast. On hearing the
shouts of the prosecutrix (PW1), Gaurishankar (PW2) and
Ramadevi (PW4) immediately reached on the spot and after
noticing these witnesses, the applicant ran away. The husband of
the prosecutrix, namely, Ramgopal (PW3) was not in the house at
the time when the offence was committed and accordingly,where
the husband of the prosecutrix Ramgopal (PW3) came back to his
house, he was informed about the incident and the FIR was lodged
at about 20:15 i.e. within three and half hours of the incident and
the police station is situated at a distance of five kilometers from
the house of the prosecutrix. The promptness in which the FIR was
lodged, clearly corroborates the evidence of the prosecutrix. Not
only the FIR was lodged with promptness, but the incident was
narrated by the prosecutrix to her husband Ramgopal (PW3)
immediately after he came back to his house. There is nothing on
record to indicate that as to why the applicant was falsely
implicated. No perversity could be pointed out by the counsel for
the applicant in the findings given by the Courts below.

(5) CRR122/2010

Accordingly, it is held that the prosecution has succeeded in
establishing that the applicant has committed an offence
punishable under
Section 354 of IPC.

(11) So far as the question of sentence is concerned,the minimum
sentence provided for offence under
Section 354 of IPC is one year
and thus, this Court cannot award a sentence which is less than
what is provided under the law. The trial Court has already adopted
a lenient view by awarding the minimum jail sentence of one year
and accordingly, the sentence of rigorous imprisonment of one year
and fine of Rs.200/- as awarded by the trial Court and affirmed by
the appellate Court is hereby maintained.

(12) Consequently, the judgment and sentence dated 02/02/2010
passed by Sessions Judge, Morena in Criminal Appeal No.72/2009,
and the judgment and sentence dated 20/07/2009 passed by
JMFC, Morena in Criminal Case No.5282/2006 are hereby affirmed.

(13) The applicant is on bail. His bail bonds and surety bonds are
hereby cancelled. He is directed to immediately surrender before
the Trial Court for undergoing the remaining jail sentence.

(14) The revision fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

MKB

MAHENDRA KUMAR BARIK
2018.06.22 18:03:06
+05’30’

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