IMPORTANT POINT
Sentence – At times, one not only has to go by maximum punishment imposable, but also by nature of offence committed.

JUDGMENT

Jay Sengupta. J.—This is a revisional application challenging a judgment and order dated 21.11.2023 passed by the learned Additional Session Judge, North and Middle Andaman at Mayabunder, Andaman and Nicobar Islands in Criminal Appeal No.09 of 2023, thereby affirming the judgment and order dated 24.04.2023 passed by the learned Judicial Magistrate, First Class, North and Middle Andaman at Mayabunder in connection with GR Case No. 425 of 2015 convicting the petitioner of offences punishable under sections 354-A(l)(iv) and 509 of the Indian Penal Code and sentence him to suffer simple imprisonment for terms of three months and to pay of fine of rupees five hundred each under the two provisions, the substantive sentences having to run concurrently, along with a default clause.

2. The prosecution case is that on 21.10.2015 a police team comprising of the victim police constable and other police personnel were proceeding to Lall Tikrey for maintaining law and order in the eve of Durga Puja. When they reached near Webi junction, they received an information that one person was creating nuisance in the area. The police party reached the place, apprehended the miscreant and took him Police Station while rest of the police party including the victim stayed back at the junction. As the place was dark, they decided to go under the street light in front of a shop. When they reached the street light the accused-appellant who was standing in front of the shop, asked the complainant victim the sexually coloured question “Kya darling challan kame aai hay kya?” On this, Mayabunder Police Station Case No. 118 dated 21.05.2015 was registered under sections 354-A (1) (iv) and 509 of the Indian Penal Code. The accused was arrested and subsequently enlarged on bail at the police station. A chargeseet dated 08.11.2015 was submitted under the said provisions. On 14.03.2016, the said charges were framed and accused pleaded not guilty. A trial was conducted with 11 prosecution witnesses.

3. Out of the ten prosecution witnesses examined, PW-1 was the scribe of the FIR. He was a Head Constable. Apparently the time of occurrence was kept blank. PW-2 was the Police Constable and was both pre and post occurrence witness. PW-3 was a lady Constable and an eye witness. PW-4 was a Police personnel and pre-occurrence witness. PW-5 was a male Police Constable and an eye witness. He deposed that the accused had told the said word by way of a joke. PW-6 was the victim lady. PW-7 was a lady Constable and an eye witness. PW-8 was a male Constable and was an eye witness. PW-9 was another Police personal who was apparently a post occurrence witness. But, he had a retina problem as well. PW-10 was the Investigating Officer of the case. In his cross, he stated that there was no light nearby. PW-11 was the Station House Officer of the Police Station who subsequently filed the chargesheet. He did not corroborate the victim’s version that she called up from the spot.

4. By a judgment and order dated 24.04.2023 the learned Judicial Magistrate, First Class, North and Middle Andaman, Mayabunder in GR Case No. 425 of 2015, the accused-appellant was convicted under sections 354-A( l)(iv) and 509 of the Indian Penal Code and sentenced to suffer simple imprisonment for terms of three months and to pay a fine of Rupees Five Hundred for each of the two offences, the substantive sentences having made to run concurrently. In default, the appellant was directed to suffer sentence of imprisonment for fifteen days more.

5. By judgment and order dated 21.11.2023 in Criminal Appeal 09 of 2023, the learned Additional Session Judge, North & Middle Andaman dismissed the appeal and directed the appellant to surrender within a month and serve the sentence.

6. Being aggrieved the petitioner has approached this Court.

7. Learned counsel appearing on behalf of the petitioner submitted as follows. The impugned orders of conviction and sentence suffered from complete perversity. On facts, t