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2020 DIGILAW 759 (JHR)

Shyam Gupta v. State of Jharkhand

2020-08-07

ANUBHA RAWAT CHOUDHARY

body2020
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. 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 the prayer and has submitted that there is consistent finding of facts recorded by the learned courts below, there being no illegality or perversity in the impugned judgments, therefore they do not call for any interference. He also submits that there is no scope for re-appreciation of evidences and coming to a different finding at this stage in revisional jurisdiction under the facts and circumstances of this case. Findings of this Court 6. He also submits that there is no scope for re-appreciation of evidences and coming to a different finding at this stage in revisional jurisdiction under the facts and circumstances of this case. Findings of this Court 6. As per the prosecution case, the informant used to take tuition of computer from one computer centre and she used to come to the centre by walking. It is alleged that since one week, one person chased her by his motorcycle Hero Honda Passion Plus bearing Registration No. JH-04B-2781. He used obscene language and teased her with malafide intention. She asked him not to do so, but even then he continued. Then she gave this information to her family members. Consequently on 08.07.2006 near bus stand her father Nand Kumar Murmu, brother Saiman Fransis and one Sanjay chased the accused at 11:30 a.m., when the informant reached the computer center, the accused went back and fro by his motor cycle and when the accused saw them, he tried to flee away, but her father and brother caught hold of him. The accused disclosed his name as Shyam Gupta (the petitioner). He also showed money to the informant various times and also asked her to be his life partner. It is also alleged that he threatened her to kill her, if she would not agree. 7. On the basis of the said allegation, Dumka (T) P.S. Case No. 140/2006 dated 08.07.2006 under Sections 354, 506 and 509 of Indian Penal Code was registered and investigated and charges were framed under Sections 354, 506 and 509 of IPC. The substance of the accusation was explained to the accused on 07.11.2006 to which he pleaded not guilty and claimed to be tried. Statement under Section 313 of Code of Criminal Procedure was recorded on 14.07.2010 and explained to the accused in Hindi to which he denied the occurrence. 8. In the course of trial, altogether three witnesses were examined. P.W.-1 is the informant/victim girl, P.W.-2 is her brother Saiman Murmu and both the witnesses have supported the prosecution case. P.W.-3 Sanjay Kumar Sah did not support the prosecution case and turned hostile. It has also come in the impugned judgment that the charge-sheeted witness No.-3 Francis Hembrom and charge-sheeted witness No. 5 investigating officer were not examined in the case. P.W.-3 Sanjay Kumar Sah did not support the prosecution case and turned hostile. It has also come in the impugned judgment that the charge-sheeted witness No.-3 Francis Hembrom and charge-sheeted witness No. 5 investigating officer were not examined in the case. It has been recorded in the learned lower appellate court's judgment that the summons were issued against them by the trial court by DB No. 194(2) dated 30.06.2008, thereafter bailable warrant was issued by DB No. 141(XIII) dated 27.04.2009, Dasti summon was also issued and handed over to the Assistant PP on 21.08.2009 and thereafter last chance was given by order dated 03.02.2010. It has further been recorded that there appears no service report of summons or bailable warrant on the record of the trial court against the remaining witnesses of the prosecution and the trial court examined the accused under Section 313 of Cr.P.C. vide order dated 14.07.2010 and further the accused did not adduce any defence evidence and his evidence was closed vide order dated 22.07.2013 and thereafter upon hearing of the parties, the accused was convicted. The evidences have been recorded in the impugned judgments and no argument has been advanced by the learned counsel for the petitioner indicating any perversity in recording the evidences. 9. It has been recorded in the impugned judgment that the P.W.-1 Smita Murmu in her evidence before the learned trial court stated that on 08.07.2006 at 11:00 a.m. Shyam Gupta chased her near bus stand where she used to go for computer classes by his bike Hero Honda Passion Plus bearing No. JH-04B-2781 and everyday when she returned back, he again over took his bike. She asked him not to do so time and again, but he chased her continuously for one week and caught hold of her hand and asked her to remain with him for the whole life showing her money. When she asked him not to do so, he threatened to kill her. Then she told the matter to her brother and father and they chased the accused and caught hold of him and thereafter the case was filed. She has identified the written report and her signature has been marked as Ext.-1. When she asked him not to do so, he threatened to kill her. Then she told the matter to her brother and father and they chased the accused and caught hold of him and thereafter the case was filed. She has identified the written report and her signature has been marked as Ext.-1. In her cross-examination, she stated that she came to know the name of the accused, when his name was asked in the police station and he always met her on the first turning after the bus stand where she used to come there at 11:30 a.m. She always found that the accused there. She used to go there all alone. She has admitted that the crossing is a crowded place and town police station is closed to it, but she never raised any hullah and she denied the suggestion. 10. It has been recorded in the impugned judgment that P.W.-2, Siman Murmu is the brother of the informant and he has stated in his evidence that in the year 2006, he came to Dumka and on the date of the incident, his sister made a telephonic call to him that on the way, a man used to do wrong talk with her. Then, he met with his sister who went for tuition and he went behind her. On the day of the incident he saw the accused chased his sister near bus stand and thereafter he started calling her and then he chased the accused and caught hold of him. He has identified his signature on the written report marked as Ext.-1/1 and he identified the accused. In cross-examination, he has stated that he along with his sister and one another person Sanjay had caught the petitioner on the motorcycle near the bus stand and brought him to the police station. He was riding the motorcycle. The written report was filed by his sister and he signed on the written report and he denied the suggestions. 11. So far as P.W.-3 Sanjay Kumar Sah is concerned, he turned hostile. 12. He was riding the motorcycle. The written report was filed by his sister and he signed on the written report and he denied the suggestions. 11. So far as P.W.-3 Sanjay Kumar Sah is concerned, he turned hostile. 12. This Court finds that the learned trial court by scrutinizing the evidences on record was conscious of the fact that out of 5 charge-sheeted witnesses prosecution has adduced evidence of only 3 witnesses and accordingly scrutinized the evidence of P.Ws.-1 and 2 carefully and recorded that on close perusal of the statement of the informant (P.W.-1) and the statement of her brother (P.W.-2), the contents of the written report, the court found that there was not a single contradiction amongst these three. 13. The learned counsel for the petitioner has submitted that there was improvement in the version of the informant by indicating that in the First Information Report, there was no such allegation that the petitioner ever caught hold of the informant, but such allegation has been made in her evidence which amounts to improvement by P.W.-1. 14. Although in the First Information Report it has not been mentioned that the petitioner ever caught hold of the informant, but this Court is of the considered view that the same has no bearing in this case as otherwise also the basic ingredients for commission of offence under sections 354, 506 and 509 of IPC have been satisfied in the present case. Further, the FIR is not an encyclopedia of the entire prosecution case. It is not in dispute that P.W.-1 has stated in her evidence that the petitioner had also caught hold of her hand while committing the alleged offence and even upon cross-examination the testimony of P.W.-1 has remained intact. Upon appreciation of evidence of P.Ws.-1 and 2, it has been recorded by the learned courts below that there have been no material contradictions in their testimonies. So far as the other point regarding non examination of other charge-sheeted witnesses are concerned, there is no doubt that neither the investigation officer of the case has been examined nor the father of the P.W.-1 has been examined and one witness P.W.-3 has turned hostile, but these aspects of the matter have been considered by the learned courts below who have carefully scrutinized the evidence of P.Ws.-1 and 2 and found them reliable to prove the prosecution case to convict the petitioner. The arguments of the petitioner before the learned lower appellate court have been recorded in para 6 of the appellate court's judgment and findings at para 7 onwards and all the points argued before the learned lower appellate court have been considered in para 9 and 10 of the judgment. The learned appellate court has rightly found that by way of detail finding, the trial court accepted the evidence of victim and her brother examined as P.Ws.-1 & 2 as faithful and reliable. The learned appellate court has also gone through the evidence of P.Ws.-1 & 2 and found that their evidence is corroborative to each other and further fully supports the case of prosecution narrated in the FIR Exhibit-1. The learned appellate court also noted and recorded that the trend of cross-examination as well as statement of accused also goes to establish that the victim and accused are stranger and the victim deposed that she knows that accused just before one week of occurrence when the accused started following her by his motorcycle but not by his name and she got his name at police station, when he disclosed it to the police officer. The learned appellate court has also recorded that P.W.-2, brother, also deposed similar fact that accused was stranger not known to him from before and for the first time he had seen him on the date of occurrence on 08.07.2006. The learned appellate court rejected the plea of false implication, considering the fact that there is no reason for the victim being an 18 years college going girl to falsely implicate an unknown person in the nature of cases narrated in the FIR. The learned appellate court fully agreed with the approach of the learned trial court that neither any reason, nor any material, is on the record to show as to why P.W.-1 would falsely implicate the petitioner by keeping her chastity on the stake and found that even in his statement the accused is silent on the point as to why he has been falsely implicated in this case. The learned appellate court has also recorded that the evidence of victim and her brother P.Ws.-1 & 2 remain very consistent that this petitioner, just before one week of the actual occurrence, started to follow the victim by his motorcycle and by making sarcastic remarks he used to ask the victim to develop illicit friendship with him and he would keep her for whole life and when the victim opposed his words, he threatened her for life. The learned appellate court has also recorded that in cross-examination also such evidence of victim P.W.-1 remained intact and she deposed that the appellant use to remain near turning point just ahead of bus stand, Dumka and whenever she came after Computer Class at about 11:30 a.m., he used to remain present there and she further deposed that the petitioner by holding her hand and showing money told her to make illicit friendship with him. The learned appellate court also recorded findings by a well-reasoned judgment that consistent evidence of victim established and satisfied all the ingredients constituting offence U/s. 354 & 509 of the Indian Penal Code. The use of threat of life showing money and holding her hand with an intention to intimidate the victim in illegal relation also constitute the offence U/s. 506 of the Indian Penal Code. The learned appellate court also recorded that the petitioner did not deserve the benefits under probation of offenders Act and did not find any infirmity in the order of sentence. 15. The learned lower appellate court also considered the arguments of the petitioner that no independent witness was examined in this case and one independent witness P.W.-3 was declared hostile and further the father of victim named in the FIR was not examined, and the argument that adverse inference be taken against the case of prosecution. The learned lower appellate court was, inter alia, of the view that in the nature of case, consistent evidence of the victim girl was self-sufficient to hold the petitioner guilty for the charges and upheld the trial court's judgment. The learned lower appellate court was, inter alia, of the view that in the nature of case, consistent evidence of the victim girl was self-sufficient to hold the petitioner guilty for the charges and upheld the trial court's judgment. On the point of non-examination of the investigating officer of the case, the learned appellate court inter alia held that there are certain minor contradictions which are not vital and no prejudice has been shown to have been caused to the accused by non-examination of investigating officer and non-examination of any independent witness or non-examination of father of victim was not sufficient to throw the entire case of prosecution in the dustbin. 16. This Court does not find any illegality or perversity in the manner in which the learned trial court appreciated the evidences on record to convict the petitioner and also the manner in which the learned appellate court has appreciated the evidences on record, arguments of the petitioner and trial court's judgment to uphold the conviction of the petitioner. There is no scope for re-appreciation of evidences on record and come to a different finding in absence of any perversity in the impugned judgments in the present case. 17. Section 349 of IPC defines the term 'force' and Section 350 of IPC defines the term 'criminal force'. The basic ingredients of the term 'criminal force' are as follows:- (i) The intentional use of force to any person; (ii) such force must have been used without that person's consent; and (iii) it must have been used (a) in order to commit an offence or (b) with the intention to cause or knowing it to be likely that it will cause injury, fear or annoyance to the person to whom it is used. 18. Section 351 of IPC defines the term 'assault' and the basic ingredients of assault is (i) making any gesture or preparation by a person in the presence of another (ii) intention or knowledge of likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use criminal force to him. 19. 19. Section 354 of IPC deals with the assault or criminal force to women with intent to outrage her modesty and the basic ingredient of the offence is (a) there must have been assault or use of criminal force on a woman (b) such assault or use of criminal force must have been made: (i) with intention to outrage her modesty or (ii) with knowledge that her modesty was likely to be outraged. 20. So far as the term 'modesty' used in Section 354 is concerned, the same has been subject-matter of interpretation by the Hon'ble Supreme Court in the case of Rupan Dev Bajaj vs. KPL Gil reported in (1995) 6 SCC 194 and the Hon'ble Supreme Court has noticed that the word "modesty" has not been defined in Indian Penal Code and it has been held that from the dictionary meaning of 'modesty' and the interpretation given to that word by the Hon'ble Supreme Court in the case of State of Punjab versus Major Singh reported in AIR 1967 SC 63 , it appears that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. 21. This Court is of the considered view that in order to outrage the modesty of a woman and commit an offence under Section 354 of IPC, the physical touch of the victim is not an essential ingredient. Upon applying the aforesaid test laid down and considered by the Hon'ble Supreme Court to the facts and circumstances of this case, this Court finds that the basic ingredients of offence under section 354 of IPC are satisfied. 22. This Court finds that the learned trial court has scrutinized the evidence on record and considered that there is no doubt that P.Ws.-1 and 2 are interested witnesses, but merely because the witnesses are interested, the same cannot be discarded. 23. This Court finds that the learned trial court has considered the consistency in the evidence of P.Ws.-1 and 2 and has scrutinized the evidences of P.Ws.-1 and 2 in the manner it is expected in a case where the evidence is of interested witnesses. This Court also finds that the learned trial court has passed a well-reasoned judgment considering the totality of the evidences brought on record. 24. This Court also finds that the learned trial court has passed a well-reasoned judgment considering the totality of the evidences brought on record. 24. This Court finds that the learned lower appellate court has also considered the plea of non-examination of some of the charge-sheeted witnesses including the investigating officer and the father of the victim girl and has recorded that their non-examination has not caused any prejudice to the petitioner as the case of the prosecution was supported by the evidences of P.Ws.-1 and 2 which were enough to convict the petitioner. 25. However, on the point of sentence, this Court finds that the incident in the present case is of the year 2006 and more than 14 years have elapsed and thus the petitioner has faced the rigors of criminal case for a long time. Therefore, ends of justice would be served if sentence is modified to some extent. Accordingly, the sentence of the petitioner is hereby modified to rigorous imprisonment of total of three months with fine of Rs. 20,000/- to be deposited by the petitioner within a period of two months from the date of communication of this order to the learned trial court. In case the aforesaid amount is not deposited by the petitioner within stipulated timeframe, the petitioner would serve the sentence as awarded by the learned trial court and confirmed by the learned lower appellate court. 26. Accordingly, the present criminal revision application is hereby disposed of with the aforesaid modification of sentence. 27. Interim order, if any, stands vacated. 28. Bail bond furnished by the petitioner is hereby cancelled. 29. Pending interlocutory applications, if any, are also dismissed as not pressed. 30. Let the lower court records be immediately sent back to the learned court below. 31. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.