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2019 DIGILAW 573 (UTT)

Bhaskar Prasad v. State Of Uttaranchal

2019-11-07

R.C.KHULBE

body2019
JUDGMENT : R.C. Khulbe, J. This appeal, preferred by the appellant u/s 374 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 02.06.2004 passed by learned Special Judge, Uttarkashi in Sessions Trial No.13 of 2003, whereby the Court below has convicted the appellant under Section 452 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo one year's R.I. with fine of Rs.1,000/-; u/s 354 IPC to undergo one year's R.I. and u/s 3(xi) of the SC/ST Act, to undergo one year's R.I. with fine of Rs.1,000/-, along with default stipulation. All the sentences were directed to run concurrently. 2. Facts, in nutshell, are that PW2 Smt. Chandra Devi submitted an application on 09.08.2002 to the Patwari Halka, Sainj, Tehsil Bhatwari, District Uttarkashi, with the averments that she went to Gangotri Temple along with the people of her village. She left her daughter Smt. Babli at the house. On 7.8.2002 at about 9.30 PM, appellant entered her house with mal-intention where the daughter of informant was alone. Appellant, with the intention to outrage the modesty of daughter of informant, torn her clothes, fell her down on the floor and tried to make her naked. When the victim screamed, the neighbours rushed to the spot and then the accused run away. 3. On the basis of above information, Chick FIR (Ex.Ka-5) was lodged on 13.8.2002 at the concerned revenue post. After investigation, the charge-sheet was submitted by the C.O. Uttarkashi against the appellant u/s 354, 452, 504 and 506 IPC r/w Section 3(11) of SC/ST Act. 4. Learned Special Judge, Uttarakashi accordingly, framed the Charge against the appellant. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution examined PW1 Smt. Babli @ Babita (against whom the offence was committed), PW2 Smt. Chandra (informant), PW3 Suresh (eyewitness), PW4 Hira Ballabh (who submitted chargesheet against the accused) and PW5 Vidyanand Semwal (who lodged the FIR on the basis of information given by PW2). 6. After completion of prosecution evidence, the statement of the appellant was recorded u/s 313 of Cr.P.C. in which he denied all the evidence led by the prosecution. 7. 6. After completion of prosecution evidence, the statement of the appellant was recorded u/s 313 of Cr.P.C. in which he denied all the evidence led by the prosecution. 7. After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, has convicted and sentenced the appellant, as afore-stated. Feeling aggrieved, the present appeal has been filed. 8. Heard learned Counsel for the parties and perused the entire evidence available on the record. 9. As far as Section 3(1)(xi) of the SC/ST Act is concerned, it is argued by learned Counsel for the appellant that there is no evidence against the appellant under the said section because the victim does not belong to scheduled caste community, and the accused had no knowledge about the caste of victim. 10. Section 3(1)(xi) of SC/ST Act is reproduced hereunder: - "Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (i) .. (xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine." 11. In this regard, the Hon'ble Apex Court in the case of 'Ramdas & others v. State of Maharashtra, (2007) 1 SCC(Cri) 546' has held that mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the SC/ST Act. Paragraph 11 of the aforesaid judgment is quoted herein below: - "At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prsecutrix belongs to a scheduled caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside." 12. In the present matter, in the FIR, though it is stated that the informant belongs to SC community but in this regard, a specific question viz. question no.9 was put to the accused u/s 313 Cr.P.C. but he denied the same. 13. If any fact is denied by the accused, then it was the duty of the prosecution to prove the same beyond any reasonable doubt. It was the duty of the prosecution to prove that the informant and the victim belonged to the SC community while the appellant belonged to the higher caste. In the present case, no such evidence was led by the prosecution to prove the aforesaid facts and thus, the conviction of the appellant, as recorded by the Court, u/s 3(1)(xi) of the SC/ST Act is liable to be set aside. Accordingly, the appellant is acquitted for the offence u/s 3(1)(xi) of the SC/ST Act. 14. Now, as far as Sections 452 and 354 IPC are concerned, learned Counsel appearing for the appellant fairly submits that the conviction of the appellant, as recorded by the Court below under the aforesaid Sections is perfectly justified as per the evidence recorded before the trial court and he also does not want to lay any challenge on the same; he only confined his prayer to the extent that the appellant may be extended the benefit of being the first-offender and may be released on probation by giving him the benefit of the Probation of Offenders Act, 1958. 15. 15. Learned State Counsel appearing for the State, admits that he has not received any report about the criminal antecedents of the appellant, and admitted that appellant is the first-time offender. 16. In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola, (2001) SCC(Cri) 897", in paragraph no.7, has held as under: "7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act." 17. Section 4 of the Probation of Offenders Act, 1958 read as under: "4. Power of court to release certain offenders on probation of good conduct 1. 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 is found guilty is of 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, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: "Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if 5 any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. 2. Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. 3. 2. Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. 3. When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. 4. The Court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. 5. The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned." 18. Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year. 19. A careful reading of Section 4 of the Act would reveal that if the offence is punishable for a period more than 2 years, but not punishable with death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded by the court. In other words, while on probation, such person should not involve himself in subsequent offence or must honour the condition of his bond / surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court. 20. In the present case the appellant is the first time offender; the incident seems to have taken place 17 years ago; he is the sole bread earner in his family and at the time of occurrence, he was a student. 21. Therefore, considering the provisions of the Probation of Offenders Act, 1958, in the opinion of the Court, the appellant should be released on probation in order to reform himself. 22. The present appeal, thus, stands disposed of. The conviction part of the appellant u/s 452 and 354 IPC is left intact. However, as far the sentence part is concerned, it is directed that the appellant shall be released on probation for a period of eighteen months on furnishing a personal bond to the satisfaction of the concerned Trial Court. The Judge concerned shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with law. It goes without saying that if accused/appellant fails to observe good conduct and behaviour during probation, or is found violating any condition, to be imposed, the Court concerned shall be at liberty to cancel the bond after calling the accused-appellant and to proceed in the matter in accordance with law. The appellant shall appear before the Trial Court on 18.11.2019 for compliance. 23. The appellant shall appear before the Trial Court on 18.11.2019 for compliance. 23. Let a copy of this judgment be sent forthwith to the learned Trial Court for information/ compliance.