Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 135 (HP)

JAI PARKASH v. STATE OF H. P.

2002-05-10

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J. - the petitioner, hereinafter referred to as the accused, upon having been tried for the offences under Sections 377 and 498-A, Indian Penal Code, by the learned Additional Chief Judicial Magistrate, Arki stands convicted for the offence under Section 377, Indian Penal Code, and sentenced to simple imprisonment for one year and to pay a fine of Rs.1000/-. In default of payment of fine, he has been sentenced to undergo simple imprisonment for a further period of two months. The accused, however, was acquitted of the offence under Section 498-A, Indian Penal Code Vide judgment dated 31.8.1999. The parents of the accused, who also faced trial along with the accused, for the offences under Section 120-B and 506, Indian Penal Code were acquitted by the learned Magistrate. 2. The conviction and sentence imposed upon the accused by the learned Magistrate were affirmed in appeal by the learned Sessions Judge, Solan, vide judgment dated 10.5.2000 passed in Criminal Appeal No. 22-S/10 of 1999. 3. Feeling aggrieved, the accused is before this Court by virtue of the present revision petition under Section 397 read with SectiQnj£0"1, Code of Criminal Procedure, assailing the conviction and sentence imposed upon by him the two Courts below. 4. Briefly stated, the prosecution story is this. The accused was married to the complainant-PW-1 Smt. Babita on 25.5.1994. It appeals that their relations became stained just after about fifteen days of the marriage and the accused started subjecting his wife with cruelty. On 5.8.1994 at about 5.30 a.m. PW-1 was sleeping in her room in her matrimonial home, the accused came to her and tried to have sexual intercourse with her. PW-1 told the accused that since she was having her menstrual period, she was not in a position to fulfil his desire. This infuriated the accused. He tried her legs and arms, gagged her mouth with a "Dupatta" and committed forcible and unnatural carnal intercourse with her. While doing so, he even attempted to penetrate a small "danda" inter her vagina. Due to such bestiality on the part of the accused, PW-1 unable to bear the pains and agony became unconscious. She sustained injuries on her private parts. The accused took her to the hospital for treatment without disclosing the real and actual happening. PW-1 was put under constant fear and threat not to disclose the facts to anyone. Due to such bestiality on the part of the accused, PW-1 unable to bear the pains and agony became unconscious. She sustained injuries on her private parts. The accused took her to the hospital for treatment without disclosing the real and actual happening. PW-1 was put under constant fear and threat not to disclose the facts to anyone. It was due to the efforts made by PW- 5 Dev Raj, a maternal uncle of PW-1 that a report came to be made to the police by PW-1 Smt. Babita that the present case came to be registered. Investigation revealed that in the past also the accused had been subjecting PW-1 Smt. Babita to sexual intercourse per anus. 5. The accused on being put to trial, denied the charged and claimed trial. The accused in his statement recorded under Section 313, Code of Criminal Procedure, after admitting PW-1 Smt. Babita to be his wife, denied the entire prosecution story and pleaded that on the relevant date, that is, 5.8.1994 Smt. Babita was at the house of her parents and was not present at her matrimonial home. 6. The prosecution in support of its case, in order to bring home the offence against the accused, examined eleven witnesses in all. No defence was led by the accused. 7. The two courts below on consideration of the evidence coming on record have concurrently came to the conclusion that the offence under Section 377, Indian Penal Code, stood proved against the accused beyond a reasonable doubt. The accused was, therefore, convicted and sentenced by the two courts below as aforesaid. 8. The learned Additional Advocate General during the course of hearing, while supporting the conviction and sentence imposed upon the accused by the two- courts below, at the very outset, has contended that the evidence coming on record has been rightly and properly appreciated by the two courts below while recording the conviction and sentence and that it would not be appropriate for this court in exercise of revisional powers to re-appreciate the evidence and to come to its own conclusion as to the guilt or otherwise of the accused. 9. The nature and scope of revisional power of this Court came up for consideration before the Honble Supreme Court in State of Kerala v. Puttumanaillath Jethavedan Namboodiri, 1999(2) SCC 452. 9. The nature and scope of revisional power of this Court came up for consideration before the Honble Supreme Court in State of Kerala v. Puttumanaillath Jethavedan Namboodiri, 1999(2) SCC 452. In the said case, the accused therein was convicted and sentenced by the trial Court for the offences under Sections 406, 468 and 477-A, Indian Penal Code. The Additional Sessions Judge, on appeal, after reappraisal of the entire, evidence affirmed the conviction and sentence as imposed by the trial Court. On revision being filed by the accused, the High Court of Kerala interfered with the conviction and sentence and came to hold that the prosecution had failed to establish the case against the accused beyond reasonable doubt. 10. It was held by the Supreme Court:- "Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned Counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence...." 11. On scrutinizing the impugned judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence...." 11. In view of the above settled position, this Court in exercise of revisional powers cannot re-appreciate the evidence for taking a view different from the one taken by the two Courts below, unless there is any glaring feature which would otherwise tantamount to gross miscarriage of justice. On scrutiny of the judgments of the two Courts below, this court is satisfied that the entire evidence stands properly and minutely appreciated by the two courts below while recording a finding of guilt against the accused. The evidence coming on record conclusively proves that the accused had committed forcible and unnatural carnal sexual intercourse with his wife PW-1 Smt. Babita. He stands rightly convicted and sentenced for the offence under Section 377, Indian Penal Code. 12. It was pleaded by the learned Counsel for the accused that on the facts and in the circumstances of the case, the sentence imposed is harsh. He, therefore, pleaded for invocation of the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958. 13. The conditions for applying Section 4, Probation of Offenders Act, 1958 have been delineated in the opening portion of the Section in the following terms :- "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 found guilty is of the 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..........." 14. Dealing with the scope and ambit of the above provision, the Honble Apex Court in Dalbir Singh v. State of Haryana, JT 2000(5) SC 463 has held :- "Parliament made it clear only if the court from the opinion that it is expedient to release him on probation for his good conduct, regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is the nature of the offence." 15. One of the circumstances which cannot be sidelined in forming the said opinion is the nature of the offence." 15. It was further held that Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the conviction person on probation of good conduct must appear to the court to be expedient. 16. In State of Gujarat v. Jamnadas G. Pabri and others, AIR 1974 SC 2233 the Honble Apex Court had the occasion to deal with the meaning of the word "expedient" appearing in Section 4, Probation of Offenders Act, 1958. It was held:- "Again, the word "expedient used in this provisions, has several shades of meaning. In one dictionary sense, expedient (adj.) means "apt and suitable to the end in view; practical and efficient1; politic; profitable; advisable; fit, proper and suitable to the circumstances of the case. In another shade, it means a device characterized by mere utility -rather than principle conducive to special advantage rather than to what is universally right (see Websters New International Dictionary)." 17. It was also held that the court must construe the said word "expedient" in keeping with the context and object of the provision in its widest amplitude. The word "expedient" is used in Section 4 in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence". This means Section. 4 can be resorted to when the Court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct. 18. The offence for which the accused stands convicted is the one relating to bestiality. Such an offence can leave no extenuating circumstances to warrant leniency in the sentence. The punishment prescribed for such an offence is imprisonment for life or with imprisonment of either description for a term which may extend to ten years and fine. 19. The accused has been sentenced to simple imprisonment of one year and fine of.Rs. 1000/-. He, therefore, already stands dealt with by the two courts below leniently. The punishment prescribed for such an offence is imprisonment for life or with imprisonment of either description for a term which may extend to ten years and fine. 19. The accused has been sentenced to simple imprisonment of one year and fine of.Rs. 1000/-. He, therefore, already stands dealt with by the two courts below leniently. No further leniency is called for either by giving him the benefit of Probation of Offenders Act, 1958 or i by reducing the quantum of sentence imposed upon him by the two, courts below. 20. Resultantly, the present petition is dismissed. The accused who is on bail is directed to surrender himself to his bail bonds before the learned trial Court within four weeks from today to receive and undergo the sentence imposed upon him. On his failure to do so, the learned trial Court shall proceed against him in accordance with law.