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2004 DIGILAW 249 (HP)

Susesh Kumar v. State of H. P.

2004-09-30

K.C.SOOD

body2004
JUDGMENT : K.C. Sood, J. Heard. Admit. 2. With the consent of the learned counsel for the petitioner and the learned Additional Advocate General the petition is heard on merit. 3. This petition arises out of the judgment of conviction recorded by learned Additional Chief Judicial Magistrate, Sundernagar by his judgment dated 9th November, 1999 for an offence punishable under Section 377 of the Indian Penal Code as affirmed by the learned Sessions Judge, Mandi, by his impugned judgment dated 17th April, 2004. 4. The prosecution case was: On 17m June, 1994, petitioner, hereinafter referred to as the "accused", subjected the victim, an eleven years old school going lad, to carnal: intercourse. The accused, on appraisal of the evidence on record, was convicted and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2000/- by the learned trial Magistrate. The accused, in case of default of payment of fine, is to suffer simple imprisonment for six months. 5. Dis-satisfied with his conviction and sentence imposed, accused laid an appeal before the learned Sessions Judge, Mandi. Learned Sessions Judge, Mandi in his wisdom remanded the case to the learned trial Magistrate saying that though 'the accused had prayed for benefit under Section 4 of the Probation of Offenders Act, yet the benefit was not extended without recording any reason. On remind, the learned Additional Chief Judicial Magistrate by his orders dated 5th July, 2002 maintained the sentence imposed' on the accused holding that the sentence imposed does not call for any leniency, in view of the perversity and depravity involved in the offence. 6. Aggrieved by the impugned orders dated 5th July, 2002, accused once again approached learned Sessions Judge in appeal. During the course of hearing before the learned appellate Court once again the conviction recorded by the learned trial Magistrate was not disputed. The only contention raised by the counsel for the accused was that in view of the age of the accused, the benefit of Probation of Offenders Act ought to have been extended to the accused. Learned Sessions Judge took a view that Section 4 of the Offenders Act would not be attracted in cases where the offence committed by the accused is punishable with imprisonment for life. 7. Learned Sessions Judge took a view that Section 4 of the Offenders Act would not be attracted in cases where the offence committed by the accused is punishable with imprisonment for life. 7. Indisputedly a person found guilty for Section 377 of the Penal Code for having committed un-natural offence can be convicted for imprisonment for life and therefore, in my view accused in not entitled to the benefit of Section 4 of the Probation of Offenders Act. 8. The Apex Court in Som Nath Puri v. The State of Rajasthan (1972) 1 SCC 630 , held that provisions of Section 4 are only applicable to a case of a person found guilty of having committed an offence not punishable with death or imprisonment for life. 9. Similar view was taken by the Apex Court in State of Gujarat v. V.A. Chauhan (1983) 2 SCC 64 . In that case, accused was convicted for offences punishable under Sections 409, 467 and 471 of the Indian Penal Code and Section 5 (1)(c ) read with Section 5 (2)of the Prevention of Food Adulteration (sic Corruption) Act. The high Court gave the benefit of the probation of offenders Act to the accused. The Court held that benefit of Probation of offenders Act is not extendable to an accused convicted for an offence punishable with imprisonment for life. 10. The view taken by the learned Sessions Judge cannot be said to be illegal. Otherwise also looking to the gravity of the offence, the perversity involved therein, I am of the view that sentence imposed on the petitioner is neither perverse nor illegal and does not call for any interference. Dismissed.