Monday, 21 December 2015

Whether court can give benefit of Probation of Offenders Act, 1958 to accused convicted for offence U/S 354 of IPC

 Now we move to the question of sentence vis-à-vis the benefit
granted under the Probation of Offenders Act, 1958. In Azhar Ali
Vs. State of West Bengal, (2013) 10 SCC 31, this Court while
dealing with the question of applicability of 1958 Act to an offence
under Section 354 of IPC, found as follows:
“12. In the instant case, as the appellant has committed a
heinous crime and with the social conditions prevailing in the
society, the modesty of a women has to be strongly guarded
and as the appellant behaved like a roadside Romeo, we do not
think it is a fit case where the benefit of the 1958 Act should
be given to the Appellant.”
 In State of Himachal Pradesh Vs. Dharam Pal, (2004) 9
SCC 681, this Court was dealing with probation of offenders in case
of offence of attempt to commit rape. The finding of this Court in
the said judgment is relevant for all the offences against the women,
which is as follows:
“6. According to us, the offence of an attempt to commit
rape is a serious offence, as ultimately if translated into
the act leads to an assault on the most valuable
possession of a woman i.e. character, reputation,
dignity and honour. In a traditional and conservative
country like India, any attempt to misbehave or sexually
assault a woman is one of the most depraved acts. The
Act (Probation of Offenders Act, 1958) is intended to
reform the persons who can be reformed and would
cease to be a nuisance in the society. But the discretion
to exercise the jurisdiction under Section 4 (of the
Probation of Offenders Act, 1958) is hedged with a
condition about the nature of the offence and the
character of the offender.”
In above case although this Court did not interfere with the benefit
of probation granted by the High Court due to peculiar facts of the
case however it did not approve the reasoning given by the High
Court.
 In the present case the accused is not a minor, rather he has
committed an offence against a minor girl who is helpless. Further,
it is clear from the evidence on record that he ran away only when
the prosecutrix screamed and PW3 came to the place of incident,
which goes on to show that the accused could have had worse
intentions. The offence is heinous in nature and there is no reason
for granting benefit of probation in this case. The Trial Court has
not given any special consideration to the character of the accused
apart from the fact that this was the first conviction of the accused.
We find this is far from sufficient to grant probation in an offence
like outraging the modesty of a woman.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 561 OF 2009
STATE OF RAJASTHAN … APPELLANT
:Versus:
SRI CHAND … RESPONDENT
Citation; 2015 (4) Crimes 257 SC

1. This appeal, by special leave, has been filed by the State of
Rajasthan against the judgment and order dated 24.01.2007
passed by the High Court of Rajasthan, Jaipur Bench, Jaipur, in
S.B. Criminal Leave to Appeal No.255 of 2003, whereby the High
Court rejected the appeal of the State filed against the acquittal of
the respondent.
2. The facts of this case, as per the prosecution story, are that on
1.08.2002, Gujarmal son of Sukkan Ram Lali, resident of Baseth,
P.S. Kathumar, District Laxmangarh (Rajasthan), submitted a
written report at Police Station Kathumar stating therein that on
31.7.2002, at around 10 A.M., his daughter the prosecutrix, aged
12 years, had gone to the jungle to graze buffaloes. Sri Chand son
of Madan Lal Saini, whose house is in the jungle, approached his
daughter, the prosecutrix and told her that his sister was calling
her. By luring her in this way, Sri Chand took his daughter the
prosecutrix to his house. No one was there in the house and Sri
Chand took his daughter the prosecutrix inside the room, closed
the door from inside, forcibly undressed her and made her to lie on
the ground and started raping her forcibly. The prosecutrix cried
upon which Sri Chand put some cloth in her mouth. Hearing her
cries, Bihari Saini, who was passing nearby, reached there and he
witnessed the whole incident. Saroj wife of Prahlad also reached at
the site. Out of fear, accused Sri Chand fled away from the place of
incident. Page 3
3
3. On the basis of the above written report, Case No.116/2002
was registered under Section 376/511 of the Indian Penal Code,
1860 (“IPC”) and investigation started. During the course of
investigation, Investigating Officer ASI Heera Lal visited the site and
prepared a site map. Statements of complainant Gujarmal,
prosecutrix and Bihari Saini were recorded under Section 161 of
Cr.P.C. Statement of prosecutrix was also got recorded under
Section 164 Cr.P.C. and she was further examined at Alwar to
ascertain her age, medical and for X-ray. A report regarding her age
was obtained in which the age of prosecutrix was stated as 16
years. Accused Sri Chand was arrested and was got examined
regarding his potency to perform sexual intercourse. After the
investigation, it was found that accused Sri Chand committed the
offence under Section 376/511 of IPC. A charge-sheet was filed in
the Court of Judicial Magistrate, Kathumar, and thereafter the case
was committed to the Court of Additional District and Sessions
Judge, Laxmangarh, for adjudication. Accused Sri Chand was
served the charge-sheet and he denied the charges and claimed for
trial. Page 4
4
4. Before the Trial Court, the prosecution examined ten
witnesses and after analyzing the evidence on record and after
hearing the arguments advanced on behalf of the parties, the Trial
Court acquitted the accused respondent by granting him probation.
The State of Rajasthan preferred an appeal before the High Court,
for grant of leave to appeal against the order of acquittal, which was
rejected. Aggrieved by the order of the High Court, the State of
Rajasthan has preferred this criminal appeal, by special leave,
before this Court.
5. We have heard the learned counsel appearing for the State of
Rajasthan and the learned counsel appearing for the accused
respondent and have perused the judgment rendered by the
Additional District and Sessions Judge, Fast Track, Laxmangarh.
6. The Court of Additional District and Sessions Judge, Fast
Track, Laxmangarh, noticed in his judgment that though there is a
serious charge of attempt to rape against the accused but the First
Information Report has been lodged with a delay of about 28 hours
for which neither any explanation has been given in the Report norPage 5
5
the complainant has mentioned anything in his statement about
the said delay, which makes the prosecution case doubtful. The
learned Sessions judge further found that the statement of PW3
Biharilal Saini cannot be doubted as it corroborates the statement
of PW5 the prosecutrix herself. However, PW3 had stated that when
he reached the house of Sri Chand he saw Sri Chand fleeing away
while prosecutrix was inside and her clothes were disturbed. The
learned Sessions Judge noted that non production of Saroj, an
alleged eye witness, is an important circumstance; however, the
testimony of prosecutrix cannot be discarded on this ground. The
prosecutrix in her statement has corroborated the story in FIR, as
recorded above. However she only says that the accused did bad
work with her. On repeated questioning about what bad work was
done, she remained quiet with head bowed down. The learned
Sessions judge found that there is consistent statement of the
prosecutrix and PW3 that accused Sri Chand undressed her as well
as himself. Therefore, the learned Sessions Judge found the offence
under Section 354 of IPC as proved. Thereupon, the learnedPage 6
6
Sessions Judge went on to grant the accused benefit of Probation of
Offenders Act in view of his clear record and no prior conviction.
7. The learned High Court after hearing counsels for both the
sides and having examined the judgment of the Sessions Judge
refused to grant leave to appeal.
8. We find that that FIR was recorded under Section 376 read
with Section 511 of IPC i.e. attempt to rape and not rape per se.
There is no eye witness on record apart from the prosecutrix herself
as PW3 Biharilal only saw the accused fleeing away and Saroj, the
alleged eye witness, was never produced before the Court nor her
statement was recorded under Section 161 Cr.P.C. Also, no medical
examination of the prosecutrix has been conducted. The prosecutrix
has in her statement stated that the accused Sri Chand took her
inside her house, closed it, undressed her and undressed himself.
Thereafter, she states, he got on to her and did bad work. On being
repeatedly asked what bad work was done, she kept quiet and
bowed her head, in embarrassment understandably. One must not
lose sight of the fact that the prosecutrix was a minor child at thePage 7
7
time of the incident. The father (PW6) of the prosecutrix has
categorically stated that bad work meant rape. However, we find
difficulty in veracity of his statement since he was not an eye
witness and was not even told about the incident by the
prosecutrix. He was told details of the incident by Biharilal (PW3)
who is not an eye witness to the incident. However, Biharilal was
the first person to have learnt of the offence from the prosecutrix
and he has completely corroborated her version. By this consistent
evidence what is proved beyond reasonable doubt is the offence
under Section 354 of IPC. However, the question of attempt to rape
is not proved beyond reasonable doubt. On the question of attempt
to rape, learned counsel appearing for the respondent has sought to
rely on two precedents being Aman Kumar and Anr. Vs. State of
Haryana, (2004) 4 SCC 379, and Tarkeshwar Sahu Vs. State of
Bihar (now Jharkhand), (2006) 8 SCC 560. In both the cited
judgments it is held that for the act to constitute offence of rape
penetration is pre-requisite (this is the pre 2013 Criminal
Amendment position of law) and therefore for the offence of attempt
to rape the accused must have so advanced in his actions that itPage 8
8
would have resulted into rape had some extraneous factors not
intervened. It is held in Aman Kumar’s case that in order to come to
the conclusion that attempt to rape is committed it should be
shown that the accused was determined to have sexual connection
(penetration) with the prosecutrix at all events inspite of all
resistance. In the present case the accused fled away on when the
PW3 came to the place of incident due to shouting of the
prosecutrix. This shows he wasn’t determined to have sexual
connection with the prosecutrix despite all resistance and odds.
Also it would be relevant to note that there are inconsistencies in
the statement of the prosecutrix wherein she states that she had
suffered injuries on her breast but same is not corroborated by the
medical evidence. Also, Saroj, who is an important eye witness, is
not produced as a witness. In this view of the matter, we find it
difficult to hold that offence of attempt to rape is proved to a
sufficient measure.
9. Now we move to the question of sentence vis-à-vis the benefit
granted under the Probation of Offenders Act, 1958. In Azhar Ali
Vs. State of West Bengal, (2013) 10 SCC 31, this Court while
dealing with the question of applicability of 1958 Act to an offence
under Section 354 of IPC, found as follows:
“12. In the instant case, as the appellant has committed a
heinous crime and with the social conditions prevailing in the
society, the modesty of a women has to be strongly guarded
and as the appellant behaved like a roadside Romeo, we do not
think it is a fit case where the benefit of the 1958 Act should
be given to the Appellant.”
10. In State of Himachal Pradesh Vs. Dharam Pal, (2004) 9
SCC 681, this Court was dealing with probation of offenders in case
of offence of attempt to commit rape. The finding of this Court in
the said judgment is relevant for all the offences against the women,
which is as follows:
“6. According to us, the offence of an attempt to commit
rape is a serious offence, as ultimately if translated into
the act leads to an assault on the most valuable
possession of a woman i.e. character, reputation,
dignity and honour. In a traditional and conservative
country like India, any attempt to misbehave or sexually
assault a woman is one of the most depraved acts. The
Act (Probation of Offenders Act, 1958) is intended to
reform the persons who can be reformed and would
cease to be a nuisance in the society. But the discretion
to exercise the jurisdiction under Section 4 (of the
Probation of Offenders Act, 1958) is hedged with a
condition about the nature of the offence and the
character of the offender.”
In above case although this Court did not interfere with the benefit
of probation granted by the High Court due to peculiar facts of the
case however it did not approve the reasoning given by the High
Court.
11. In the present case the accused is not a minor, rather he has
committed an offence against a minor girl who is helpless. Further,
it is clear from the evidence on record that he ran away only when
the prosecutrix screamed and PW3 came to the place of incident,
which goes on to show that the accused could have had worse
intentions. The offence is heinous in nature and there is no reason
for granting benefit of probation in this case. The Trial Court has
not given any special consideration to the character of the accused
apart from the fact that this was the first conviction of the accused.
We find this is far from sufficient to grant probation in an offence
like outraging the modesty of a woman.
12. In view of the discussion in the foregoing paragraphs, we allow
this appeal to the limited extent that the accused respondent is not
granted the benefit of Probation of Offenders Act, 1958, but his
conviction is maintained under Section 354 I.P.C. only. The accused
respondent is hereby sentenced to rigorous imprisonment for two
years. The respondent is directed to surrender within a period of
two weeks to serve out the sentence, failing which the Additional
District and Sessions Judge, Laxmangarh, shall take necessary
steps to take him into custody to serve out the sentence. Let a copy
of this judgment be sent to the Additional District and Sessions
Judge, Laxmangarh, for information and necessary action.
….....….……………………J
(Pinaki Chandra Ghose)
….....…..…………………..J
(Uday Umesh Lalit)
New Delhi;
May 11, 2015. 
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