Back
2020 Supreme(Jhk) 996
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Shyam Gupta - Appellants
Vs.
The State of Jharkhand - Respondent
Cr. Revision No. 271 of 2014
Decided On : 07-08-2020
For the Appellant :Ashish Kumar, Advocate
For the Respondents:Pankaj Kumar, Advocate
Headnote:
Code of Criminal Procedure, 1973 – Section 313 – Indian Penal Code, 1860 – Sections 354, 506 and 509 – Outrage to woman’s modesty – Judgment of conviction – Counsel for petitioner submits that this revision application has been filed against judgment passed in Criminal Appeal by District & Additional District Judge-III, Dumka, whereby judgment of conviction and order of sentence passed by learned Judicial Magistrate, 1st Class, Dumka in G.R. Case arising out of Dumka (Town) P.S. Case has been confirmed. – He submits that petitioner has been convicted and sentenced to undergo rigorous imprisonment for six months for offence under Section 354, six months for offence under Section 506 and three months for offence under Section 509 of Indian Penal Code with stipulation that all sentences will run concurrently and period undergone in detention shall be set-off as per law. – Held, Court is of considered view that in order to outrage modesty of a woman and commit an offence under Section 354 of IPC, physical touch of victim is not an essential ingredient. – Upon applying aforesaid test laid down and considered by Honble Supreme Court to facts and circumstances of this case, this Court finds that basic ingredients of offence under section 354 of IPC are satisfied. – Court finds that learned trial court has scrutinized evidence on record and considered that there is no doubt that P.Ws.-1 and 2 are interested witnesses, but merely because witnesses are interested, same cannot be discarded – Court finds that learned trial court has considered consistency in evidence of P.Ws.-1 and 2 and has scrutinized evidences of P.Ws.-1 and 2 in manner it is expected in a case where evidence is of interested witnesses. – Court also finds that learned trial court has passed a well-reasoned judgment considering totality of evidences brought on record. – Court finds that learned lower appellate court has also considered plea of non-examination of some of charge-sheeted witnesses including investigating officer and father of victim girl and has recorded that their non-examination has not caused any prejudice to petitioner as case of prosecution was supported by evidences of P.Ws.-1 and 2 which were enough to convict petitioner. – Court finds that incident in present case is of year 2006 and more than 14 years have elapsed and thus petitioner has faced rigors of criminal case for a long time. – Ends of justice would be served if sentence is modified to some extent. – Accordingly, sentence of petitioner is hereby modified to rigorous imprisonment of total of three months with fine of Rs. 20,000/- to be deposited by petitioner within a period of two months from date of communication of this order to learned trial court. – In case aforesaid amount is not deposited by petitioner within stipulated timeframe, petitioner would serve sentence as awarded by learned trial court and confirmed by learned lower appellate court. – Criminal Revision Application Disposed of
ORDER :
Anubha Rawat Choudhary, J.
Through Video Conferencing
1. Heard the learned counsel for the parties.
Arguments of the petitioner
2. The learned counsel for the petitioner submits that this revision application has been filed against the judgment dated 25.02.2014 passed in Criminal Appeal No. 118/2010 by the learned District & Additional District Judge-III, Dumka, whereby the judgment of conviction and order of sentence dated 19.08.2010 passed by the learned Judicial Magistrate, 1st Class, Dumka in G.R. Case No. 838/2006 (T.R. No. 83/2010) arising out of Dumka (Town) P.S. Case No. 140/2006 has been confirmed. He submits that the petitioner has been convicted and sentenced to undergo rigorous imprisonment for six months for offence under Section 354, six months for offence under Section 506 and three months for offence under Section 509 of Indian Penal Code with stipulation that all the sentences will run concurrently and the period undergone in detention shall be set-off as per law.
3. The learned counsel for the petitioner submits that no case is made out under section 354 of Indian Penal Code in the facts and circumstances of the present case. He submits that the contents of the First Information Report has been recorded in the impugned judgments and as per the FIR, there is no such allegation that the petitioner ever caught hold of the informant (victim). He submits that when the informant deposed as P.W.-1 before the learned court below, she has improved her allegations over and above whatever was stated in the First Information Report. The learned counsel also submits that the petitioner has been convicted only on the basis of examination of two witnesses i.e. the informant (P.W.-1) and her brother (P.W.-2). He further submits that one person, namely, Sanjay who had appeared as P.W.-3 had turned hostile although he was named in the FIR as a person who caught hold of the petitioner and had taken him to the police station. He further submits that even the father of the informant did not appear for his examination before the learned trial court although he was one of the charge-sheeted witnesses. The learned counsel submits that there were altogether three attesting witnesses to the FIR, namely, Nand Kumar Murmu, Saiman Murmu (P.W.-2) and Fransis Hembrom and only Saiman Murmu (P.W.-2) has been examined before the learned trial court. He also submits that even the investigating officer of the case has not been examined before the learned court below. The learned counsel submits that the complainant and her brother were highly interested witnesses and their evidences were not sufficient to convict the petitioner under the facts and circumstances of this case and accordingly no case under Section 354 of Indian Penal Code is made out against the petitioner beyond shadow of all reasonable doubts. The learned counsel submits that considering the aforesaid aspects of the matter, the present revision application calls for interference and the order of conviction of the petitioner under sections 354, 506 and 509 of IPC is fit to be set-aside.
4. On the point of sentence under sections 354, 506 and 509 of IPC, the learned counsel for the petitioner submits that on the date of conviction the age of the petitioner was 42 years and the present age of the petitioner is 52 years. The learned counsel further submits that the petitioner has faced the rigors of the trial right from the year 2006 and accordingly some lenient view may be taken on the point of sentence and sentence be modified. He submits that the petitioner was arrested on 08.07.2006 but the learned counsel for the petitioner is not in a position to say as to when the petitioner was released. He further submits that after the appellate court's judgment, the petitioner surrendered on 24.03.2014 and was granted bail by a Co-ordinate Bench of this Court on 28.03.2014.
Arguments of the opposite party-State
5. Learned counsel appearing on behalf of the opposite party-State has opposed
