Madhya Pradesh High Court
Ramu @ Vijay vs The State Of Madhya Pradesh on 23 October, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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NEUTRAL CITATION NO. 2024:MPHC-IND:30660
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 23rd OCTOBER, 2024
CRIMINAL REVISION No. 3683 of 2024
RAMU ALIAS VIJAY
Versus
THE STATE OF M.P.
Appearance:
Shri Ajay Raj Gupta - Advocate for the petitioner.
Shri Anirudh Malpani - Govt. Advocate for the respondent/State.
Reserved on : 03.10.2024
Pronounced on : 23.10.2024
ORDER
This criminal revision having been heard and reserved for order, coming on
for pronouncement this day, Justice Sanjeev S. Kalgaonkar pronounced the
following:
This criminal revision under Section 397 read with Section 401 of
Cr.P.C is filed assailing the judgment dated 15.07.2024 passed by 2nd
Additional Session Judge, Sardarpur, Distt. Dhar in Criminal Appeal No.
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05/2023 affirming the judgment of conviction and order of sentence dated
13.01.2023 passed by the Court of JMFC, Sardarpur Distt. Dhar in RCT No.
277/2017 whereby the revision petitioner/accused – Ramu alias Vijay was
convicted for offence punishable u/S 354 of IPC and sentenced to undergo
rigorous imprisonment for 02 years and fine of Rs. 500/- with default
stipulation of rigorous imprisonment for 15 days.
2. The exposition of facts, giving rise to present revision petition, is as
under:
1. As per the case of prosecution, the victim, a student of Class X, aged
around 18 years was returning from the local market at Village
Amodiya on 27.02.2017 around 3:00 in the afternoon. Ramu alias
Vijay S/o Dhannalal caught hold of the victim with intention to outrage
her modesty. The victim slapped him. Ramu alias Vijay left her and
fled away. The victim informed her mother and elder sister about the
incident. On such allegation, Outpost Rajgarh of P.S. Sardarpur
registered Crime No. 127/2017 for offence punishable u/S 354 of IPC
against Ramu S/o Dhannalal. During investigation, it was revealed that
Dhannalal and Bhuri Bai had abused the victim in filthy language. On
completion of investigation, final report was submitted.
2. Learned CJM, Sardarpur, Distt. Dhar framed charges for offence
punishable u/S 354 of IPC against accused – Ramu alias Vijay and for
offence punishable u/S 294 of IPC against Dhannalal and Bhuri Bai.
On conclusion of trial and after hearing the parties, learned CJM,
Sardarpur vide impugned judgment dated 13.01.2023, acquitted
accused – Dhannalal and Bhuri Bai for offence punishable u/S 294 of
IPC and convicted accused – Ramu alias Vijay for the offence
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NEUTRAL CITATION NO. 2024:MPHC-IND:30660
punishable u/S 354 of IPC and sentenced him as stated in para 1 of the
order.
3. The convict Ramu alias Vijay preferred appeal u/S 374 of Cr.P.C.
before the Sessions Judge, District Dhar. Learned 2nd Additional
Sessions Judge, Dhar rejected the appeal and affirmed the judgment of
conviction and order of sentence vide impugned judgment dated
15.07.2024 passed in Cr.A. No. 05/2023.
3. Feeling aggrieved by the concurrent findings of conviction and the
orders of sentence, this criminal revision is filed on following
grounds:-
a. Learned Courts below exercised jurisdiction with material
irregularity and illegality.
b. The prosecution evidence was not supported by any
independent witness.
c. There are many important variation, contradictions and
omissions in the evidence of prosecution witnesses.
d. The medical report did not support the prosecution story.
e. The revision petitioner is first offender. Learned Courts below
have erred in declining the benefit of Probation of Offenders Act to
him.
4. On such grounds, it is requested that the impugned judgment passed
by the trial Court and the first Appellate Court be set aside and revision
petitioner be acquitted of the offence punishable u/S 354 of IPC or he may
be extended the benefit of probation.
5. Learned counsel for the revision petitioner, in addition to the grounds
mentioned in the application contends that parents of petitioner were
implicated in supplementary statement. It was a case of over implication due
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NEUTRAL CITATION NO. 2024:MPHC-IND:30660
to previous enmity between the parties. However, the parents of revision
petitioner stand acquitted by the trial Court. The FIR was delayed for seven
hours. Therefore, the exaggeration and embellishment in evidence are
important. Learned first Appellate Court ignored these important aspects of
the matter. The revision petitioner has already undergone custody for more
than three months from the date of passing of judgment by the Appellate
Court. Under such circumstances, he deserves the benefit of Probation of
Offenders Act.
6. Per contra, learned counsel for the State supports the concurrent
findings and submits that learned trial Court and the Appellate Court have
not committed any error in convicting and sentencing the revision petitioner.
The impugned sentence is appropriate in the circumstances of the case. The
criminal revision deserves to be dismissed.
7. Heard both the parties and perused the record.
8. Under Section 397 of the Cr.P.C, the Court is vested with the power
to call for and examine the record of any inferior Court for the purpose of
satisfying itself as to legality and regularity of any proceedings or order
made in a case. The object of this provision is to correct the patent defect or
an error of jurisdiction or the perversity which has crept in the proceedings.
9. However, the High Court, in revision, exercises supervisory
jurisdiction of a restricted nature. It cannot re-appreciate the evidence, as
Second Appellate Court, for the purposes of determining whether the
concurrent finding of fact reached by the learned Judicial Magistrate First
Class and the learned 2nd Additional Sessions Judge was correct.
10. In case of State of Kerala v. Puttumana Illath Jathavedan
Namboodiri reported in (1999) 2 SCC 452, it was observed that-
5. Having examined the impugned judgment of the High Court and bearing
in mind the contentions raised by the learned counsel for the parties, we
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NEUTRAL CITATION NO. 2024:MPHC-IND:30660
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 reappreciate 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 standpoint, 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
reappreciating the oral evidence. The High Court also committed further
error in not examining several items of evidence relied upon by the
Additional Sessions Judge, while confirming the conviction of the
respondent. In this view of the matter, the impugned judgment of the High
Court is wholly unsustainable in law and we, accordingly, set aside the
same.
11. Recently, in case of Malkeet Singh Gill v. State of Chhattisgarh,
reported in (2022) 8 SCC 204, the Supreme Court observed as under-
“10. Before adverting to the merits of the contentions, at the outset, it is
apt to mention that there are concurrent findings of conviction arrived at
by two courts after detailed appreciation of the material and evidence
brought on record. The High Court in criminal revision against conviction
is not supposed to exercise the jurisdiction alike to the Appellate court and
the scope of interference in revision is extremely narrow. Section 397 of
the Criminal Procedure Code (in short “CrPC”) vests jurisdiction for the
purpose of satisfying itself or himself as to the correctness, legality or
propriety of any finding, sentence or order, recorded or passed, and as to
the regularity of any proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of jurisdiction or law.
There has to be well-founded error which is to be determined on the merits
of individual case. It is also well settled that while considering the same,
the Revisional Court does not dwell at length upon the facts and evidence
of the case to reverse those findings.”
12. In the light of aforementioned proposition of law, the fact situation on
record is examined.
13. Victim (PW-1) submitted that she was returning from the shop of
Lucky Jaiswal in Village Amodiya in the afternoon of the day of incident,
the accused uttered indecent words and caught hold of her with bad
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NEUTRAL CITATION NO. 2024:MPHC-IND:30660
intention. She slapped accused and then he fled away. She informed her
mother and sister and reported the incident at Outpost Rajgarh. The FIR
(Ex.P-1) was lodged by her. There is no material inconsistency or
contradiction in evidence of victim. Sister of victim (PW-2) and mother
(PW-3) corroborated her testimony. Sub-Inspector Saroj Barot(PW-4)
proved the FIR(Ex.P-1) as reported by the victim.
14. Learned trial Court in para 12 dealt with contentions of the defence
relating to non examination of independent witnesses. Further in Para 14 to
16 dealt with minor inconsistencies in the evidence and concluded that
prosecution has proved beyond doubt that the accused has used criminal
force on the victim with intention to outrage her modesty. Learned first
Appellate Court in para 18 of the judgment dealt with delay of 07 hours in
lodging the FIR and concluded that in the circumstances of the case, the
delay cannot be treated as unreasonable and sufficient to doubt veracity of
the prosecution.
15. Learned trial Court and the first Appellate Court have dealt with the
defence of accused with regard to previous enmity between father of the
accused and the victim and found that stray admission relating to some anti-
encroachment proceeding is not sufficient to demolish the veracity of
prosecution evidence. The reasons assigned by the trial Court and the first
Appellate Court to discard the contentions of the defence are proper and
appropriate. So far as, acquittal of parents of the accused is concerned, the
trial Court, considering the “community standard test,” concluded that
minor abuses cannot be treated as obscene, therefore, parents of the accused
were acquitted. Such an acquittal has no ramification on the prosecution
against the petitioner.
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16. Thus, no case is made out for interference in the finding of conviction
for offence punishable u/S 354 of IPC against the petitioner, in exercise of
revisional jurisdiction. However, the propriety of sentence is considered.
17. Learned counsel for the revision petitioner relying on the judgment of
Co-ordinate Bench dated 15.05.2024 passed in Cr.R. No. 1685/2024
[Badrilal Vs. State of M.P.] and the judgment of Apex Court rendered in
the case of Lakhvir Singh & Others Vs. State of Punjab and Others
[Cr.A. No. 47-48 of 2021 dated 19.01.2021] contends that even in
conviction for the offence punishable with prescribed minimum sentence,
benefit of probation may be extended.
18. Section 360 of Cr.P.C. provides as under:-
360. Order to release on probation of good conduct or after admonition-(1)
when any person not under twenty- one years of age is convicted of an offence
punishable with fine only or with imprisonment for a term of seven years or
less, or when any person under twenty- one 5 years of age or any woman is-
convicted of an offence not punishable with death or imprisonment for life, and
no previous conviction is proved against the offender, if it appears to the Court
before which he is convicted, regard being had to the age, character or
antecedents of the offender, and to the circumstances in which the offence
was committed, that it is expedient that the offender should be released on
probation of good conduct, 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:
19. Thus, first offender may be released on probation of good conduct or
after admonition provided that it appears that it is expedient to do so, regard
being had to the age, character, or antecedent of the offender and to the
circumstances in which the offence was committed. The benefit of this
provision cannot be claimed as a matter of right rather it is discretion of
Court to be exercised on aforementioned parameters.
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20. The Apex Court in case of Mohd. Hashim v. State of U.P. reported in
(2017) 2 SCC 198 observed as under:-
21. In this regard, it is also seemly to refer to other authorities to highlight how the
discretion vested in a court under the PO Act is to be exercised. In Ram Parkash v.
State of H.P. [Ram Parkash v. State of H.P., (1972) 4 SCC 46 : 1973 SCC (Cri) 119
: AIR 1973 SC 780] , while dealing with Section 4 of the PO Act in the context of
the Prevention of Food Adulteration Act, 1954, the Court opined that the word
“may” used in Section 4 of the PO Act does not mean “must”. On the contrary, as
has been held in the said authority, it has been made clear in categorical terms that
the provisions of the PO Act distinguish offenders below 21 years of age and those
above that age and offenders who are guilty of committing an offence punishable
with death or imprisonment for life and those who are guilty of a lesser offence.
Thereafter, the Court has proceeded to observe: (SCC p. 48, para 7)
“7. … While in the case of offenders who are above the age of 21 years,
absolute discretion is given to the court to release them after admonition or
on probation of good conduct in the case of offenders below the age of 21
years an injunction is issued to the Court not to sentence them to
imprisonment unless it is satisfied that having regard to the circumstances
of the case, including the nature of the offence and the character of the
offenders, it is not desirable to deal with them under Sections 3 and 4 of the
Act. (Rattan Lal v. State of Punjab [Rattan Lal v. State of Punjab, AIR 1965
SC 444 : (1965) 1 Cri LJ 360] and Ramji Missar v. State of Bihar [Ramji
Missar v. State of Bihar, AIR 1963 SC 1088 : (1963) 2 Cri LJ 173] .)”
Be it noted, in the said case, keeping in view the offence under the Prevention 7 of
Food Adulteration Act, 1954, the Court declined to confer the benefit under Section
4 of the PO Act.
22. We have referred to the aforesaid authority to stress the point that the court
before exercising the power under Section 4 of the PO Act has to keep in view the
nature of offence and the conditions incorporated under Section 4 of the PO Act.
Be it stated in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana,
(2000) 5 SCC 82 : 2004 SCC (Cri) 1208 : AIR 2000 SC 1677] it has been held that
Parliament has made it clear that only if the Court forms the opinion that it is
expedient to release the convict on probation for the good conduct regard being
had to the circumstances of the case and one of the circumstances which cannot be
sidelined in forming the said opinion is “the nature of the offence”. The Court has
further opined that though the discretion has been vested in the court to decide
when and how the court should form such opinion, yet the provision itself provides
sufficient indication that releasing the convicted person on probation of good
conduct must appear to the Court to be expedient. Explaining the word
“expedient”, the Court held thus: (SCC p. 86, paras 9-10)
“9. … The word “expedient” had been thoughtfully employed by
Parliament in the section so as to mean it as “apt and suitable to the end in
view”. In Black’s Law Dictionary the word “expedient” is defined as
“suitable and appropriate for accomplishment of a specified object”
besides the other meaning referred to earlier. In State of Gujarat v.
Jamnadas G. Pabri [State of Gujarat v. Jamnadas G. Pabri, (1975) 1 SCC
138 : AIR 1974 SC 2233] a two-Judge Bench of this Court has considered
the word “expedient”. The learned Judges have observed in para 21 thus:
(SCC p. 145) „21. … Again, the word “expedient” used in this provision,
has several shades of meaning. In one dictionary sense, “expedient” (adj.)
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means “apt and suitable to the end in view”, “practical and efficient”;
“politic”; “profitable”; “advisable”, “fit, proper and suitable to the
circumstances of the case”. In another shade, it means a device
“characterised by mere utility rather than principle, conducive to special
advantage rather than to what is universally right” (see Webster’s New
International Dictionary)‟.
10. It was then held that the court must construe the said word in keeping
with the context and object of the provision in its widest amplitude. Here
the word “expedient” is used in Section 4 of the PO Act 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.”
21. In view of the attending circumstances of the case, it would not be
expedient to extend the benefit of the Probation of Offenders Act to the
petitioner. Learned trial Court and the first Appellate Court rightly denied
him the benefit of probation.
22. The petitioner was aged around 22 years, as reflected by his arrest
memo, at the time of alleged incident. The evidence on record reflects that
as he caught hold of victim, the victim had slapped him at the public place.
Thereafter, he left the place of incident. It goes to show lesser criminality of
the alleged conduct. The offence was committed in the year 2017. The
petitioner had undergone vagaries of trial and the appeal. He must have
suffered financially and undergone mental agony for years. The parties are
resident of same vicinity. The parties must have moved on with their lives.
The bitterness of incident might have diminished with efflux of time.
23. On consideration of these aspects, this Court is of the view that
reduction in sentence of imprisonment would serve the ends of justice. In
such a scenario, this revision is allowed only on the point of propriety of
sentence and the sentence is amended as under:-
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Petitioner/accused Conviction Sentence of Fine Amount Default
Imprisonment Stipulation
Ramu alias Vijay 354 of IPC Rigorous Rs. 500/- Rigorous
Imprisonment Imprisonment
for 01 Year for 15 days.
24. The fine amount already deposited by the petitioner before the trial
Court shall be set off. The period of custody during the trial and post
conviction shall be set off against the sentence of imprisonment. The
revision is disposed off accordingly.
Let the copy of this order be forwarded to the First Appellate Court and
the Trial Court for necessary action along with relevant records.
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
sh/-
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