Harbans Singh vs State of Punjab

A. P. Chowdhri, J.

This revision is directed against the judgment of the learned Additional Sessions Judge, Patiala dated July 20, 1985, dismissing the petitioner''s appeal against his conviction and sentence under section 377 read with section 511 of the Indian Penal Code by the Judicial Magistrate 1st Class, Rajpura, by judgment dated September 1, 1984.

The relevant facts are that the petitioner is a constable and at the time of occurrence he was posted at Police Station Dera Bassi. On May 18, 1981 at about 10.45 p.m. Madan Lal, who was then aged 191/2 sleeping in front of his shop near the G.T Road. Harbans Singh is stated to have sat down on his cot and opened the strings of his pyjama as also his own string of the pyjama.

Madan Lal raised alarm Mohinderpal Singh PW5 and Didar Singh who were passing by that side came there and caught hold of the accused. Several other persons also gathered later. The accused tried to escape. He was given some beating and taken to the Police station along with Madan Lal, where on the statement of Madan Lal DDR No 38 dated May 18, 1981, was entered the same day at 11.30 p.m. The police did not take any action for a considerable period. Ultimately under the orders of the SSP first information report Exhibit PA was entered on June 24, 1982, about 13 months after the occurrence. ASI Ved Parkash investigated the case including the recording of statement of the prosecution witnesses.

At the trial, the prosecution case was sought to be proved by the statement of Madan Lal PW1 and Mohinderpal Singh PW 5.

The plea of the accused was that he had been falsely implicated on account of a grudge which Madan Lal was nursing against him. Madan Lal was a junk dealer and some parts of a sugarcane crusher which was stolen property had been recovered from him. On the day of occurrence, Harbans Singh petitioner was asked to accompany ASI Kewal Krishan for investigation of a murder case. In order to go with the ASI, Harbans Singh went to the house of Babu Singh to arrange for some money and on the way Madan Lal complainant met him and gave him a beating along with his companions on account of the aforesaid grudge. In order to prove his injuries, the petitioner examined Dr. R.K. Sharma DW1. He also produced Kehar Singh DW2 and Babu Singh DW3.

On an evaluation of the material on record, the trial Court accepted the evidence of the prosecution witnesses rejected the defence plea and held that the facts and circumstances amounted to offence of attempt to commit unnatural offcen. He, therefore, convicted the petitioner and sentenced him to rigorous imprisonment for one year and a fine of Rs. 500/, and in default of payment of fine to rigorous imprisonment for three months. The appeal filed by the petitioner remained unsuccessful before the Additional Sessions Judge. It is in these circumstances that the present revision has been filed.

The contentions of Shri R.S. Ghai, learned counsel for the petitioner, are :

(a) The prosecution had failed to prove its case against the petitioner.

(b) If at all held proved, the facts did not disclose the offence of attempt to commit unnatural offence.

(c) The occurrence took place way back in May 1981. The petitioner had suffered the agony of such a protracted pendency of criminal proceedings against him and in the totality of facts and circumstances he may be released on probation.

I have gone through the material evidence on record and have given anxious consideration to the contentions of the learned counsel.

The defence plea does not deserve to be accepted. If Madan Lal and his companions had caused injuries to the petitioner, there is no understandable reason why he did not lodge a report against them. Since the injuries were simple in nature, he could certainly file a complaint before the Magistrate. If he had been asked to accompany an Investigating Officer, it is difficult to understand how he was found smelling of liquor when immediately after the occurrence the petitioner was examined by Dr.R.K. Sharma DWI. If Madan Lal had been found in possession of some parts of stolen sugarcane crusher. It is difficult to understand why no case was registered against him and why no such evidence was produced in defence.

The next question which falls for consideration is as to the offence which is disclosed by the facts proved by the prosecution. Madan Lal PWI was sleeping in front of his shop near a public thoroughfare. As soon as the accused came and sat down on his cot and opened the strings of his pyjama. He raised alarm, which attracted Mohinderpal Singh and Didar Singh, who caught hold of the petitioner. In these facts, it is difficult to accept that the accused had also opened the strings of his own pyjama. It may be taken as settled law that in order to decide whether the facts constitute an attempt to cause a particular offence the totality of the facts and circumstances have to be taken into consideration. The facts and circumstances of the present case do not constitute the offence of attempt to commit an unnatural offence. The offence disclosed, on the other hand, is only of assault under section 351 punishable under section 352 of the Indian Penal Code.

The conviction and sentence of the petitioner are, therefore, set aside. Instead he is convicted under section 351 punishable under section 352 and instead of being awarded any punishment, he is directed to be released on probation on his undertaking to appear and receive sentence according to law during the period of one year, and in the meanwhile to keep the peace and be of good behaviour. The petitioner shall execute a personal boud in the sum of Rs. 3000/ with one surety in the like amount to the satisfaction of the Judicial Magistrate. Rajpura, to the above effect, within a period of one month or such extended period as the learned Duty Magistrate may fix in this behalf.

JUDGMENT accordingly