Sharad Kumar Sharma, J
1. This is a revision, which has been preferred by the convicts for commission of the offences under Sections 354, 294, 504 & 506 of IPC, which was
registered by way of FIR No. 63/2017 registered on 13.07.2012, before the Police Station Kunda, District Udham Singh Nagar.
2. The brief facts, which constituted to be the part of set of allegations leveled against the revisionists in the FIR dated 13.07.2012, was to the effect
that a complaint, which was registered by one Mr. Ram Singh at the Police Station Kunda, District Udham Singh Nagar, it was to the effect that when
his daughter Suman used to move out in public places, the convict person often used to stalk her, abuse her and used to create scenes of obscenity and
whenever she tried to object to their action, the convict persons, they used to threaten her that they will do away with her life. The complainant had
alleged in the FIR that owing to the set of allegations as leveled against the convict persons, it was to the effect that they have also threatened that
they have got their high up connections and even the police will not be able to do anything in case if an FIR is registered against them. The allegation,
which was leveled by the complainant father Mr. Ram Singh was to the effect that on 13.07.2012, when the victim was going in the morning at about
6:00 AM, when she was going to her uncle home for collecting wood the convict persons apart from the fact that they were passing obscene remarks,
they have also indulged into the act of tearing her clothes and misbehaving with her, as would be apparent from the statements recorded by her when
she appeared in the witness box as PW2 and the statement, which was recorded by her before the Trial court, it was to the following effect:
“9. 0 -2 , ,
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- 13-07-2012
6
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3. The action of the convict persons was also supported and proved by the statement recorded by PW1 Ram Singh the complainant father with
regards to the incident, which has chanced on 13.07.2012 and also by the statement of S.I. Pradeep Singh Chauhan, who has recorded his statement
as PW3, who has submitted that he after verifying the spot where the incident is said to have been committed by the convict persons and after
preparing the site plan and recording the statement of the complainant as well as the mother of the victim the statement of PW3 shows that in the
recording of the statement under Section 313 by the convict persons the offence as alleged to have been committed under Sections 294 and 354 is
apparently shown to have been made out because of the set of allegations and the narration of incident, which has been given by PW2 in her
statement, which this Court is of the view that no young girl, until and unless she faces with such an awkward situation of an obscenity in public
created by the convict persons in a public places, she would ever make a reference in the statement, which she has recorded before the Court below.
4. In defense thereto, the convict persons have produced DW1 and named DW2 Mr. Brij Pal Singh and DW3 Mr. Kartar Singh, but unfortunately
DW1 could not appear in the witness box and had not recorded his statement and only the statement of DW2 and DW3 was recorded. The more
reliance was placed by the learned counsel for the revisionist on the statement recorded by DW2, wherein, he has apart from denying the allegations
leveled in the FIR and the statements recorded by the witnesses of the prosecution, DW3 has contended that in fact looking to the set of
circumstances, which was prevailing resulting to the commission of offence between 6 to 7 AM in the morning of 13.07.2012 could be nothing, but as
a consequence of friendly relationship between the victim and the convict person, which has resulted into the commission of such offence as alleged
against the convict revisionists.
5. Thus, in view of the statement of DW3 what is being sought to be extracted from his statement is that the offence under Sections 354 and 294
could not be made out, more particularly, when it is the case of the witness of the defense that there was a relationship between the girl and the
convict persons and hence, the set of allegations leveled by PW2 cannot be said to have been proved beyond doubt for the reason that the alleged
photograph, which is said to have been taken by them on the mobile of the victim was also an exhibit or document, which has not been proved by the
victim by producing any witnesses to the said effect.
6. In defense, it has been argued that FIR, which was lodged against them on 13.07.2012 at about 10:20 AM being FIR No.63 of 2012 it was a belated
FIR, which does not support the prosecution story. The Appellate Court after hearing the parties has recorded a finding that act of misbehaviour of the
convict revisionist is a continuous offence having been committed by them on various occasions, because as per the evidence which is on record, also
shows that in relation to the offences committed them a Panchayat was held and the father of the revisionist Nirmal Singh is said to have also pleaded
forgiveness on behalf of the convict sons. Thus, the Appellate Court also held that since the nature of offence being consecutive and continuous
offence, delayed lodging of the FIR will not have any effect, because even otherwise both the courts below on appreciation of evidence and on
considering the rival statements had held that the offence stands proved. Thus, the order of conviction cannot be faulted of on that count.
7. What is important to be seen is that while interpreting the statement of PW2 even the statement recorded of the witnesses of the defense, nowhere
any of the witness, which has been adduced by the convict person except of their own statement, which has been recorded under Section 313 of
Cr.P.C. a very baldassertion has been made by the convicts that regards to the incident of 13.07.2012 and the manner in which they have behaved
with the victim. The learned Trial Court after considering the statement of the victim and the defense witnesses ultimately found that the offence
under Sections 354, 294, 504 and 506 is made out and consequently the Trial Court has convicted the revisionists for undergoing a sentence of one
year rigorous imprisonment for commission of offence under Section 354 and a penalty of Rs. 1,000/- was imposed upon them, for the offence under
Section 294 they have been sentenced to undergo a rigorous imprisonment of three months and for Section 504 the revisionists have been sentenced to
undergo a rigorous imprisonment of six months and a fine of Rs. 500/- was imposed upon them and for Section 506 they have been inflicted with the
punishment of six months of rigorous imprisonment and a fine of Rs. 500/- has been imposed by the judgment of conviction upon them by the judgment
rendered by the First Additional Civil Judge (J.D.)/ Judicial Magistrate, Kashipur, on 16.08.2013.
8. The said judgment was put to challenge by the convict revisionist and the Appellate Court too after appreciating the statement recorded under
Section 313, and the statement of the prosecution, as well as the defense witnesses ultimately found that the allegation, which has been leveled by the
victim PW2 is apparently shown to have remained unrebutted in the statements, which was recorded by the accused persons under Section 313,
because very vague answers have been given to question nos. 2 and 3, which has been posed to them in the proceedings of recording the statements
under Section 313.
9. The Appellate Court too after considering the legal pronouncement on which the reliance was placed by the revisionists has affirmed the sentence,
which has been imposed by the learned Trial Court by the impugned judgment dated 16.08.2013. On appreciation of the evidence of the prosecution
witnesses, what is reflected is that, as far as the commission of the offence on 13.07.2012 apparently seems to have been established beyond doubt in
view of a comparative scrutiny of the statement of the defense witnesses as well as the statement as extended by the prosecution witnesses. The set
of allegation pertaining to the misbehaviour, which was conducted by the revisionists on 03.07.2012 at about 6 AM, in a public place remains
established against them and further their contention pertaining to that they may be granted the benefit of Sections 3 and 4 of the Probation of
Offenders Act, 1958, as this happens to be the first incident where they have been convicted for the offences under Sections 354, 294 and 506 by the
Appellate Court and, hence, some compassion has to be shown to them with regards to their conviction in view of the provisions contained under
Sections 3 & 4 of the Probation of Offenders Act, 1958. Section 3 & 4 of the Act is quoted hereunder:
“3. Power of court to release certain offenders after admonition.â€"When any person is found guilty of having committed an offence punishable
under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with
imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is
proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time
being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him
after due admonition. Explanation.â€"For the purposes of this section, previous conviction against a person shall include any previous order made
against him under this section or section 4.
4. Power of court to release certain offenders on probation of good conduct.â€
(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 behaviour: 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.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in
relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient
so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order
during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems
necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without
sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any
other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or
a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith
furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned..â€
10. This Court is after considering the lower courts’ record, which has been produced before this Court and in particular the statement, which has
been recorded of the convict under Section 313 particularly in reference to the answer given to the question no. 3 with regards to taking of the
photographs, with regards to the tearing of clothes of the victim and creating other obscenity as recorded in the statement of PW2, this Court is of the
view that on scrutiny of the statement made under Section 313 and in the absence of there being specific denial in their defense, which has been
posed by the revisionist to denounce the offences against them under Sections 294 and 354 of the IPC, this Court is of the view that while exercising
its powers under Section 397 and even if the powers is exercised in the light of the provisions contained under Section 401 of Cr.P.C. Considering the
statement and also considering the finding, which has been recorded by both the courts below in the judgments impugned in relation to the commission
of the offence under Sections 354 and 294 is apparently made out against the revisionist.
11. In defense the argument of the learned counsel for the revisionists cannot be accepted because humanly it is practically impossible for a young girl,
who has been misbehaved in the manner as recorded in her statement before the Trial Court by tearing her clothes and the victim misbehaving with
her by putting their hands inside her dress by touching her private parts of the body, itself amounts to be an offence under Section 354. Apart from the
fact, when taking of the photograph from the mobile is a fact, which was never denied by the victim or their witnesses in their statement recorded
before the Trial Court. On scrutiny of the evidence and considering the statement of the witnesses, this Court is of the view that the inference, which
has been sought to be drawn in order to denounce the set of allegations leveled against the revisionists, which otherwise stands proved by the
conviction order by both the courts below, this Court is of the view that as far as the offence under Sections 354 and 294 is concerned, that is
apparently and undoubtedly made out because it is absolutely unacceptable that a girl, who has been maltreated by the convict person in public and in
the manner in which they have acted against the wishes of the girl herself, this itself amounts to be an affirmed commission of offence under Sections
354 and 294 of IPC.
12. Consequently, the revision is dismissed and the sentence as imposed upon the revisionist for commission of an offence under Sections 354 and 294
are upheld. The convicts, who are on bail, are directed to surrender themselves forthwith before the Magistrate concerned so as to serve their
respective sentence. They will be taken in custody and they are directed to serve the sentence as imposed by the Trial Court for the two offences as
narrated thereabove, but as far as the offence under Section 506 is concerned, this Court is of the view that though apparently there is not much
material evidence on record to show the commission of offence under Section 506 for which they will stand acquitted.
13. Subject to the aforesaid observation, the revision fails and the sentence as imposed by the Courts below for commission of offences under Section
354 and 294 are upheld. The applicants, who are on bail, are directed to surrender themselves forthwith they would be taken in custody and are
directed to serve the sentence for which the conviction, which has been upheld by this Court.
14. Lastly, it has been argued by the learned counsel for the revisionists that they would be entitlted for the benefit of Section 3 to be read with Section
4 of the Probation of Offenders Act, 1958 because the power of release, which has to be exercised by the Court is confined to in relation to the
offence, which is narrated under Section 3, and also in relation to all the offence, which are punishable with the sentence not more than two years.
There are two views of this Court in relation to Section 3 on which the reliance has been placed by the revisionist one, that first of all its an exclusive
prerogative, which has been given to the Court to provide the protection under Section 3 of the Act of 1958, subject to its own satisfaction to be
recorded as to looking to the circumstances of the case and including the nature of the offence, whether the character of offender is of such a nature
where the benefit of Section 3 at all could be extended and if he is not entitled to be extended to the convict, then the Court is not mandatorily required
to exercise its powers under Section 3, secondly as soon as the convicts take the shelter to the argument in the light of the provisions contained under
Section 3 read with Section 4, which is a discretion to be exercised by the Court prior to inflicting an order of conviction, it leads to automatic
inference that once the protection is solicited under Sections 3 and 4 of the Probation of Offenders Act, 1958, it amounts to that the findings and the
conclusion drawn by the Courts, which had convicted the revisionist, in the regular trial and when in the subsequent regular criminal appeal there is an
admission with regards to the commission of offence for which they have been convicted by the Court below and thus the protection under Sections 3
& 4 acts as a twin edged sword against the convict persons, who seeks a protection Section 3, which is absolutely discretionary and depends upon the
prerogative power, which is to be exercised by the Court and hence, since this Court is satisfied that in view of the statement recorded by the victim
herself that the offence under Sections 294 and 354 is specifically made out against the revisionist, this Court is not willing to exercise its discretion to
grant the benefit of Section 3 to be read under Section 4 of the said Act.
15. Consequently, the conviction as inflicted upon the revisionist for offences under Sections 294, 354 and 506 of IPC are upheld.
16. The revision is dismissed. The revisionists are directed to surrender forthwith and serve the sentence and the bail bonds of the revisionists are
cancelled.
