Abhijit Goldar vs State

Madhumati Mitra, J

This is an application under Article 227 of the Constitution of India read with Section 401 of the Code of Criminal Procedure, 1973 filed by the petitioner/convict challenging the judgement and order dated March 15, 2019 passed by the learned Additional Sessions Judge, Mayabundar in Criminal Appeal No. 09 of 2016 renumbered as Criminal Appeal No. 09 of 2018. By the impugned judgement, the learned Judge affirmed the judgement and order of conviction dated July 14, 2016 passed by learned Magistrate in G.R. Case No. 096 of 2013.

Petitioner faced trial for commission of alleged offences punishable under Sections 354/509 of the Indian Penal Code.

The facts which are necessary for disposal of the present revisional application are as follows:-

Prosecutrix was aged about 15 years at the relevant point of time. At the time of commission of the alleged offence, she was a student of Class XI of Government Senior Secondary School, Rangat. The incident alleged took place on February 12, 2013 at about 14:15 hrs. in the classroom. It was alleged that on the date of the incident the teacher of Accountancy was absent. The prosecutrix was sitting in the second last bench of the classroom. Accused Abhijit Goldar and co-accused Subham Singh approached to the bench just behind the bench of the prosecutrix. Accused/petitioner Abhijit Goldar caught hold the hand of the prosecutrix and started to use abusive and filthy language addressed to her. The prosecutrix protested the behavior of the accused and she threatened the accused that she would report the incident to their teacher. In spite of that, the accused Abhijit Goldar caught the hand of the prosecutrix and touched her breast in presence of all of her classmates and used filthy language addressing her. The entire incident was reported to the Vice-Principal of the school by the prosecutrix. She also narrated the incident to her mother. The entire incident was reported to the police station.

On the basis of the said First Information Report, Rangat Police Station Case No. 042 of 2013 dated February 12, 2013 under Section 354/509/34 of the Indian Penal Code was initiated against the F.I.R. named accused persons, namely, Abhijit Goldar and Subham Singh.

Investigation culminated in the submission of charge-sheet against the F.I.R. named accused persons for commission of the alleged offences punishable under Section 354/509/34 of the Indian Penal Code. Co-accused Subham Singh was juvenile at the relevant point of time. Accused/petitioner faced trial for commission of the alleged offences punishable under Sections 354/509 of the Indian Penal Code.

After conclusion of trial the learned Magistrate sentenced the petitioner to undergo rigorous imprisonment for a period of one year and six month and to pay a fine of Rs. 5,000/- for commission of offence punishable under Section 354 of the Indian Penal Code and also sentenced to suffer simple imprisonment for a period of six month and to pay a fine of Rs. 1,000/- for commission of the offence punishable under Section 509 of the Indian Penal Code.

Petitioner/convict preferred an appeal being No. 09 of 2016 which was subsequently renumbered as 09 of 2018. Learned Additional Sessions Judge affirmed the judgement of conviction and order of sentence passed by the learned Magistrate. Thereafter the petitioner preferred the present application challenging the judgement and order passed by the learned Additional Sessions Judge.

During the course of hearing, the learned Counsel appearing for the petitioner has assailed the impugned judgement of conviction and the order of sentence passed by the learned Courts below on the grounds that the learned Courts below failed to appreciate the evidence on record in its true perspective. Learned Courts below overlooked to consider the discrepancies and contradictions in the evidence of prosecution witnesses. Learned Counsel for the petitioner has contended that both the victim girl and the petitioner were classmates and at the relevant point of time, the petitioner just completed the age of 18 years. He has argued that the learned Courts below committed an error both in law and facts by not considering the relevant factors which were essential for the purpose of arriving at the conclusion regarding the commission of the alleged offence. He has argued that the learned Courts below failed to consider the age of the petitioner at the relevant point of time and did not consider the scope of releasing the petitioner on probation before imposing sentence. It has been pointed out by the learned Counsel for the petitioner that the impugned judgement and order were passed by the learned Courts below ignoring the all relevant factors and discrepancies of the prosecution witnesses and the evidence of the prosecutrix (PW1) was not corroborated by her classmates though the alleged incident took place during school hours in the classroom. It is his specific contention that more so the evidence of the prosecutrix did not inspire confidence to hold that the petitioner was guilty of commission of the alleged offences.

In support of his contention, the learned Counsel for the petitioner has placed his reliance on the following decisions:-

(i) Panduranga Sitaram Bhagwat Vs. State of Maharashtra reported in 2004 (8) Supreme 916,

(ii) Krishnan & Anr. Vs. Krishnaveni & Anr. reported in 1997 (1) Supreme 628,

(iii) Rai Sandeep @ Deepu & Another Vs. State of NCT of Delhi reported in 2012 Supreme (SC) 520,

(iv) Narendra Kumar Vs. State (NCT of Delhi) reported in 2012 (4) Supreme 59.

On the contrary, the learned Counsel appearing for the State has contended that the petitioner has challenged the concurrent findings of the learned Courts below by filing the present application under Article 227 of the Constitution of India and under Section 401 of the Code of Criminal Procedure. It is his specific contention that the scope of the High Court to exercise revisional power is very much limited and the High Court which exercising power as revisional Court cannot undertake in depth and minute of the examination of the entire evidence and upset concurrent findings of Trial Court and the First Appellate Court. In support of the above contention, the learned Counsel appearing for the State has cited the following decisions:-

(i) Duli Chand Vs. Delhi Administration reported in (1975) 4 SCC 649,

(ii) State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others reported in (2004) 7 SCC 659,

(iii) State of Karnataka Vs. Appa Balu Ingale and Others reported in 1993 CRI. L. J. 1029.

Learned Counsel has further contended that the learned First Appellate Court at the time of confirming the sentence had considered the scope of releasing the convict/petitioner on probation and came to the conclusion that the convict cannot be released on probation considering the nature of the offence alleged.

The learned Counsel for the State has prayed for dismissal of the present revisional application.

After carefully examining the submission and counter submission advanced by the learned Counsel appearing for the State and the learned Counsel appearing for the petitioner/convict both on the legal and factual aspects and scrupulously scanning the evidence recorded during trial, I would like to deal with those contentions one after another.

In the present case the prosecution examined as many as 13 witnesses to prove the allegation contained in the F.I.R. The prosecution examined the prosecutrix as PW No. 1. The mother of the prosecutrix was examined as PW No. 2. The prosecutrix narrated the entire incident to her mother after coming back to her residence from school.

PW Nos. 3, 4 and 5 are the classmates of the prosecutrix and the accused. They have been declared hostile by the prosecution.

PW No. 6 is another classmate of the prosecutrix and the accused. From her deposition it transpired that on the date of the alleged incident though she was present in the classroom but she was sleeping as such she could not see the alleged incident.

PW No. 7 is the father of the prosecutrix, who heard about the incident from PW No. 2, the mother of PW No. 1, the prosecutrix.

PW No. 8 is an employee of the school in whose presence police seized the birth certificates of the accused from the school.

PW No. 9 and 10 are also the classmates of the prosecutrix and the accused. Both of them expressed their ignorance about the commission of the alleged offence inside the classroom.

PW No. 11 is the Vice-Principal of the school. He deposed that the prosecutrix reported the incident to him and he enquired the incident from other students who supported the version of the prosecutrix. During his cross- examination he could not say the names of the students who corroborated the version of the prosecutrix.

PW No. 12 was the Principal of the school at the relevant point of time. From his deposition it transpired that he had no direct knowledge about the alleged incident as on the relevant date he was not present in the school. He deposed what he had heard from the Vice-principal about the alleged incident.

PW No. 13 is the Investigating Officer of this case.

During the course of hearing, learned Counsel for the petitioner has submitted that the alleged incident took place in the school hours and in the classroom in presence of other students, but none of the students supported the prosecutrix and more so, the evidence of prosecutrix is not trustworthy. He has pointed out to the cross-examination of PW No. 1 that is the prosecutrix and contended that during her cross-examination she deposed that at the time of commission of the alleged incident she had pinched accused with her nails and this piece of evidence of the prosecutrix did not get support from the evidence on record. None of the prosecution witnesses said that the accused sustained injury at the time of commission of alleged offence.

In the instant case, the materials placed on record show that both the learned Courts below came to the concurrent findings that the petitioner committed the offence of outrage of modesty of the prosecutrix in the classroom.

It is settled principle of law that in exercise of its power under Article 227 of the Constitution of India or under Section 401 of the Code of Criminal Procedure the High Court should not, in the absence of perversity, upset concurrent factual findings of Trial Court and Appellate Court. Moreover, the High Court in exercise of its power under Article 227 of the Constitution of India or under Section 401 of the Code of Criminal Procedure should not reanalyze or reassess the materials, particularly the evidence on record. On perusal of the entire materials on record it cannot be held that the learned Courts below committed an error in holding that the petitioner committed the offence punishable under Section 354/509 of the Indian Penal Code. In view of the above discussion I have no hesitation to say that it is not a fit case to set aside the judgement of conviction passed by the learned Judicial Magistrate which has been subsequently affirmed by the learned First Appellate Court. In the instant case, the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of one year and six months and to pay a fine of Rs. 5,000/- for the offence punishable under Section 354 of the Indian Penal Code and also sentenced to suffer simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/- for the offence punishable under Section 509 of the Indian Penal Code.

In its judgement the First Appellate Court refused to release the petitioner on probation in view of the decision of Ajahar Ali Vs. State of West Bengal reported in (2013) 10 SCC 31. The learned First Appellate Court while refusing to extend the benefit of Probation of Offenders Act opined that if any person uses criminal force upon any woman with the intention or knowledge that the woman's modesty will be outraged, he is to be punished.

During the course of hearing, forceful submission has been made on behalf of the petitioner that the prosecution failed to prove offences alleged beyond all reasonable doubts. The evidence of the prosecutrix has not been corroborated by medical evidence regarding causing of injury on the person of the petitioner at the time of commission of the alleged offence and none of the classmates who were present at relevant time in the classroom corroborated the evidence of the prosecutrix that the petitioner committed alleged offence. It has been contended that the decision arrived at by the learned Magistrate regarding the guilt of the accused is not based on cogent and convincing evidence. He has further contended that the learned First Appellate Court has also failed to appreciate the evidence of the prosecution.

Learned Counsel for the petitioner has vehemently contended that the accused is below the age of 21 years. Both the accused and the prosecutrix were classmates. At the time of commission of the alleged offence the petitioner just crossed his 18 years. On the contrary, the learned Counsel for the State has submitted that the benefit of Probation of Offenders Act cannot be extended to the accused in view of the decision of Ajahar Ali Vs. State of West Bengal. I have gone through the decision as referred by the Additional Sessions Judge while refusing the benefit of Probation of Offenders Act to the petitioner. In the judgement as referred by the learned Additional Sessions Judge the offence was committed on 06.11.1995. At the time of commission of the offence in the case referred to by the Appellate Court the accused was aged about 16 years. He was convicted on 09.05.2012. That is after about 17 years of the date of commission of the offence. When the matter was disposed of by Apex Court in the month of October, 2013 the said accused became a man of 34 years. In the instant case, the offence was committed in the year 2013 when the accused was 18 years. He was convicted on 14.07.2016. Whenever a prayer of release on probation is made it is not more of a benefit to the accused but a duty cast on the Court to play a pivotal role in implementing intelligently and compassionately with all its comprehension. The law of probation has created new responsibility before imposition of sentence. In the instant case, convicted person at the relevant point of time was a boy of 18 years who had no previous conviction. It has been settled that a revisional Court while exercising its powers in revision can pass an order of probation. The order of probation can be passed after conviction but before awarding the sentence to the convicted person. We all know that sentencing a boy of tender age is a sensitive issue and not a routine or mechanical prescription. The case as cited by the learned Judge First Appellate Court is quite different from the present case. In the judgement as referred by the Judge First Appellate Court, the Hon'ble Apex Court had mentioned that there were concurrent findings recorded by three Courts below and the Hon'ble Apex Court observed as under:-

"6. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

In view of the concurrent findings recorded by the three courts below, we are not inclined to reappreciate the evidence. The same is also not warranted in view of the fact that the complainant Nasima Begum who had no enmity against the appellant has been very consistent about the factual matrix not only in her statement under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") but also before the court and had supported the prosecution case fully. Her version was corroborated by several other witnesses and the courts below have recorded the finding that the appellant was guilty beyond reasonable doubt."

More so, the issue came before the Hon'ble Apex Court after 18 years from the date of commission of the alleged offence and by this time the appellant became a man aged above 34 years. Moreover, the plea of juvenality was raised.

A case has to be judged by its own merit. The factual matrix of the case at hand is different from the case referred by the learned Judge, First Appellate Court in Ajahar Ali vs. State of West Bengal.

In view of the above, I suspend sentence and direct the learned Trial Magistrate to make an enquiry and to take into consideration the age, character or antecedence for deciding the question whether the accused can be released on probation under Section 3/4 of the Probation of Offenders Act. If the Magistrate is of the opinion after considering all relevant factors that the accused/petitioner can be released on probation, then he shall pass an appropriate order in this regard.

If the Magistrate is of the view after holding an enquiry that the petitioner cannot be released on probation, then sentence awarded to the petitioner will be revived.

A copy of the order be sent to the learned Courts below including the Additional Chief Judicial Magistrate, Mayabunder for their information and necessary action.

Urgent Photostat copy of this order be immediately made available to the parties subject to compliance with all requisite formalities.