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2021 Supreme(All) 454
IN THE HIGH COURT OF ALLAHABAD
SURESH KUMAR GUPTA, J.
Jameel – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.113 of 2000
Decided on : 03-08-2021
Advocate Appeared:
For the Appellant : R.P.Shukla, R.N.Shukla, Rakesh Kumar Yadav, Vashu Deo Mishra
For the Respondent:Govt Advocate
Point of Law: Conviction modified - Power of Court to release certain offenders on probation of good conduct - Section 4 of 1958 Act does not create any distinction between category of offenders and provision of said Section can be made applicable in any case where the offender is found guilty for committing an offence which is not punishable with death or imprisonment for life.
Headnote:
Indian Penal Code, 1860 - Sections 452 and 354 - Probation of Offenders Act, 1958 - Section 3 and 4 - Assault or criminal force to woman with intent to outrage her modesty - House-trespass after preparation for hurt, assault or wrongful restraint - Assault or criminal force to woman with intent to outrage her modesty - Appeal against conviction - Power of court to release certain offenders after admonition - PW-1 stating that husband of first informant along with PW-1 was present at his house situated in Village in morning, when accused-appellant, of same village armed with country made pistol entered into house and started to quarrel with husband of first informant. When PW-1 objected to it and hearing noise, other members of family rushed to spot whereupon accused fled away. PW-4, made a complaint of this case against appellant and thereafter he went to work somewhere. It is appellant who after sometime on same day came back to house of PW-1 armed with Banka and wanted to molest and assault victim to outrage her modesty but she raised alarm, whereupon her nephew, husband and elder brother came on spot. Seeing them accused abducted four months old daughter of PW-1.
Finding of the Court:
Accused-appellant shall get the benefit of Section 4 of the Probation of Offenders Act, 1958 - Conviction against the appellant neither involved life sentence nor punishable more than seven years imprisonment and it is also submitted that out of 3 months awarded sentence he remain in detention of jail about 12 days. It is also stated that this is the first offence against the appellant. Further submission is that there are several contradictions and exaggeration made in the statement of the witnesses examined before the trial court. It is also submitted that there is no minimum sentence under Section 452, 354 IPC. So in opinion of this Court, it would be appropriate to grant the benefit of Section 4 of the Probation of Offenders Act, 1958 to the accused- appellant.
Result: Appeal is partly allowed.
JUDGMENT :
1. The present appeal has been preferred against the judgment and order dated 21.01.2000 passed by 1st A.S.J., Lucknow in S.T. No.324 of 1995 whereby the appellant has been convicted and sentenced under Sections 452 and 354 IPC for three months rigorous imprisonment respectively.
2. Brief facts of the case are that the case emerged from the F.I.R. lodged by PW-1 Saiyra Bano stating that Mohd. Khalil, husband of first informant along with Smt. Saiyra Bano, PW-1 was present at his house situated in Village Khojey Kapurwa, P.S. Gudamba on 12.09.1993 in the morning, when the accused-appellant, Jameel of the same village armed with country made pistol entered into the house and started to quarrel with the husband of the first informant. When PW-1 objected to it and hearing noise, other members of the family rushed to the spot whereupon the accused fled away. PW-4, Mohd. Khalil made a complaint of this case against the appellant, Jameel and thereafter he went to work somewhere. It is the appellant who after sometime on the same day came back to the house of PW-1 armed with Banka and wanted to molest and assault the victim to outrage her modesty but she raised alarm, whereupon her nephew, husband and elder brother came on the spot. Seeing them, the accused abducted four months old daughter of Smt. Bano.
3. On this allegation, Smt. Bano lodged a written report as Ex-ka-1 at Police Station-Gudamba, District-Lucknow on 12.09.1993 at 8:15 pm where chik report as Ex-ka-2 was prepared on its basis and the case was registered in G.D. as Ex-ka-3 under Sections 452, 354, 364, 506 IPC as Case Crime No. 259 of 1993. This case entrusted to PW-6, Ram Narain Chaubey who investigated this case and during investigation, he visited place of occurrence and prepared a site plan as Ex-Ka-4. On the same date, he recorded the statement of Smt. Saiyra Bano, Rafiq Mohd., Safiq Mohd., Mohd. Khalil and other witnesses under Section 161 Cr.P.C. and arrested the accused on 14.09.1993 on Kursi Road and recovered from his possession of female child. Thereafter, the investigating officer prepared recovery memo as Ex-Ka-5 and in presence of the witnesses, he also prepared the site plan of the recovery as Ex-Ka-6. The recovery of the female child was handed over in the custody of PW-1 through memo as Ex-Ka-7 and after completing the investigation, the charge-sheet as Ex-Ka-8 was submitted by the Investigating officer under Sections 452, 354, 364, 506 IPC against the accused-appellant.
4. Charge-sheet was submitted before the Magistrate Court and the case was committed to the 1st A.S.J., Lucknow where it is registered as S.T. No.324 of 1995. After committal, the trial court framed charges against the accused-appellant under Sections 452, 354, 364, 506 IPC. The accused-appellant denied the charges levelled against him and claimed to be tried.
5. In order to substantiate its case, the prosecution examined six witnesses namely PW-1, Smt. Saiyra Bano first informant of the alleged incident, PW-2 Rafiq Mohd. who reported himself as eye witness, PW-3 Safiq Mohd. who was also another eye-witness, PW-4 Khalil Mohd. husband of PW-1 was also eye-witness, PW-5 Babulal Maurya, Head Constable who took the chik report as Ex-Ka-2 and PW-6 Ram Narain Chaubey, Investigating Officer. Thus, the prosecution relied on the oral testimony of PW-1 to PW-6 and Ex-Ka-1 to Ex-Ka-7 as documentary evidence.
6. After closing the evidence, statement of the accused under Section 313 Cr.P.C. was recorded by the trail court explaining the entire evidence and other circumstances, in which the appellant denied the prosecution story in toto and the entire prosecution story was said to be wrong and concocted. In answer to the question no.6, he stated that PW-1 Smt. Saiyra Bano was his wife and the female child alleged to have been kidnapped by him was born to Smt. Saiyra Bano with his union. After birth of this baby, Smt. Bano started to live with her former husband and thereafter, there was a dispu
