Murlidhar and Others vs State of Raj. and Others

Banwari Lal Sharma, J.

These two revision petitions have been preferred against the impugned judgment dated 26.09.1998 passed by the learned Sessions Judge, Churu in Criminal Appeal No. 36A/1997 whereby the learned appellate court affirmed the judgment of conviction passed by learned Chief Judicial Magistrate, Churu in Criminal regular Case (Complaint) No. 200/89 passed on 30.09.1997 and convicted the present petitioner Vinod Kumar, co-accused Murlidhar S/o. Jagmohan and Mahesh S/o. Mohan Lal for offence under Section 354 IPC and sentenced each of them for three months'' simple imprisonment with a fine of Rs. 500/-, in default thereof to further undergo 15 day''s additional simple imprisonment. In appeal, accused Mahesh Kumar was acquitted and the sentence of petitioner Vinod Kumar and Murlidhar was modified by the learned appellate court and the benefit of Section 4 of Probation of Offenders Act was extended and it was ordered that they shall maintain piece for a period of one year and shall pay Rs. 2,500/- each as compensation to the complainant.

The brief facts of the case are that Smt. Rani Majumdar filed a complaint (Ex. D-1) before the learned Judicial Magistrate, Churu against the petitioner-accused Vinod, co-accused Murlidhar S/o. Jagmohan and Mahesh S/o. Mohan Lal for offence under Section 354 IPC stating therein that accused persons are related to Shri Mohan Lal Ji Mishra and her husband was his tenant. Shri Mohan Lal Ji wanted to evict the rented shop wherein her husband was running dispensary on one or the other pretext. On 06.11.1983 at about 2:30 PM in the afternoon, when she was going to her husband''s dispensary along with his meal then accused alongwith Mahesh Kumar came near her. Murlidhar was driver of motorcycle and other two accused were sitting as pillion rider. Motorcycle was slowed down and Murlidhar pinched her cheek and Vinod put his hand on her breast and pulled her ''Sari'' and all the three accused threatened her for dire consequences. When she shouted, at that time, motorcycle was speeded up and accused ran away. She informed her husband about this incident, on which he told her to file a report in the police station. Earlier also, she had tried to report the matter to the police, but the matter was not registered. Therefore, she filed this complaint. The said complaint was dismissed for non-prosecution on 10.12.1983. Thereafter, second complaint was filed by her on 12.12.1983 in the court of learned Judicial Magistrate, Churu, on which proceedings under Section 200 and 202 Cr.P.C. were drawn up and the statements were recorded. The complaint filed by the complainant was dismissed by the court on 06.01.1984, against which the complainant filed a revision petition in the court of learned Sessions Judge, Churu, who accepted the revision vide order dated 08.09.1987 and directed the learned Chief Judicial Magistrate to make further inquiry into the matter and thereafter, the case was sent to Judicial Magistrate, Churu who made further inquiry into the matter and recorded statement of one Shri Hari Narayan under Section 202 Cr.P.C. and on 12.05.1989, the case was again sent to the court of Chief Judicial Magistrate, Churu who vide order dated 18.07.1989 directed taking of cognizance against the petitioners and Mahesh Kumar for the offence under Section 354 IPC.

The said order was challenged in revision before the court of learned Sessions Judge, Churu who, vide his order dated 13.02.1990, quashed the proceedings so far as accused Mahesh Kumar is concerned.

The order dated 13.02.1990 was challenged by the complainant in the High Court and this court vide its order 05.12.1990 set aside the order dated 13.02.1990 passed by the learned Sessions Judge, Churu and restored the proceedings before the learned Chief Judicial Magistrate, Churu.

The petitioner also challenged the order taking cognizance against them by way of filing misc. petition under Section 482 Cr.P.C. but the same was disposed of on 14.10.1992 with a direction that the objection raised by the accused should be agitated before the Magistrate at the stage of framing of charge.

Thereafter on 07.12.1992, the charge under Section 354 IPC was framed against the petitioners and Mahesh Kumar. The petitioners claimed trial and during course of trial, an objection was raised on behalf of the petitioners that the proceedings were liable to be quashed as being time barred, but the said objection was turned down by the learned Magistrate and challenge to the said order was made in the High Court. The said misc. petition was disposed of with a direction that objection relating to cognizance being barred by time, shall be disposed of by the Magistrate at the time of final hearing of the case.

The learned Chief Judicial Magistrate, however, at the conclusion of the trial proceeded to disagree with the legal objection of cognizance being time barred and proceed to convict and sentenced the petitioners and co-accused for the offence under Section 354 IPC as aforesaid. The said conviction and sentence was challenged by the petitioner and Mahesh Kumar before the learned Sessions Judge, Churu, who vide judgment dated 26.09.1998 acquitted the co-accused Mahesh Kumar and convicted the petitioner and co-accused Murlidhar and affirmed the judgment of conviction for offence under Section 354 IPC in relation to accused Murlidhar and while setting aside the sentence extended the benefit of Section 4 of Probation of Offenders Act as aforesaid.

Being aggrieved by the judgment dated 26.09.1998, the petitioner, accused Vinod Kumar and Murlidhar have preferred this revision petition.

During pendency of the revision petition, petitioner-accused Murlidhar also expired. Now, revision petition remains for the accused Vinod Kumar only.

Complainant also filed revision petition dissatisfied from the order of extending probation to the accused. Therefore, both the revision petitions were heard together.

Since, accused Vinod Kumar and complainant both have preferred revision petition in the impugned order, therefore, Vinod Kumar is referred as petitioner-accused and the complainant is referred as complainant.

Mr. Vineet Jain, learned counsel for the petitioner-accused submitted that it is an admitted position that there was dispute between landlord and tenant. The learned trial court as well as the learned appellate court has committed grave error in placing reliance upon the statement of complainant Smt. Rani Majumdar who has made exaggerated statement in the complaint just for the reason that she wanted to escape from the proceedings of eviction from the premises of Mohan Lal with whom the petitioner-accused was irritated. He submitted that the allegations made by the complainant and her husband in their respective statements during the course of the trial are contrary to each other. Whereas Shri Hari Narayan has stated that Mahesh Kumar had put hands on the chest of his wife, on the other hand, Smt. Rani has stated that it was Vinod who has committed the said act. Therefore, their statements are not believable. He also submitted that cognizance was not taken within three years after the alleged incident. The incident is said to have been taken place on 06.11.1983 and cognizance was taken in the year 1989 which was not considered by both the courts below, therefore, his revision petition may be allowed and the impugned judgment may be quashed and set aside and the petitioner-accused may be acquitted from the alleged offence.

Per contra, learned counsel for the complainant supported the impugned judgment to the extent of conviction of accused persons. He submitted that complainant is an educated lady and is serving as teacher. Outraging of modesty was proved against the accused and the learned appellate court wrongly extended the benefit of the provisions of Section 4 of the Probation of Offenders Act. He should have been sent to the State custody to serve the sentence as awarded by the learned trial court.

Learned Public Prosecutor also supported the impugned judgment.

I have considered the submissions made by learned counsel for the petitioner, learned counsel for the complainant and the learned Public Prosecutor and perused the material available.

From the perusal of the record, it reveals that the complaint was filed on 12.11.1983 which was dismissed by the court on 06.01.1984, against which the complainant filed a revision petition in the court of learned Sessions Judge, Churu, who accepted the revision vide order dated 08.09.1987 and directed the learned Chief Judicial Magistrate to make further inquiry into the matter and thereafter, the case was sent to Judicial Magistrate, Churu who made further inquiry into the matter and statement of Shri Hari Narayan was recorded under Section 202 Cr.P.C. and on 12.05.1989, the case was again sent to the court of Chief Judicial Magistrate, Churu who vide order dated 18.07.1989 took cognizance against the accused for the offence under Section 354 IPC. Thus, the delay in taking cognizance caused due to the proceeding and it was not the intentional delay caused on behalf of the complainant.

So far as the contention of the learned counsel for the petitioner-accused that there are contradictions in the statements of witnesses and that no independent witness was examined is concerned, the learned trial court, while considering the over-all facts and circumstances of the case and considering the statements of witnesses, recorded a finding that though there are contradictions but the same cannot be termed as material contradiction and recorded the finding of guilt against the accused. The learned appellate court also upheld the same. Further, it cannot be believed that an educated lady, just to keep the possession of a shop for her husband, will lodge a false case while questioning her modesty. In such types of cases, the offence is committed while looking for chance and thus there can be least chances of having seen the incident by any independent witness. In the present case, the son of tender age of the complainant has also given the statement against the accused. Thus, the learned trial court has rightly recorded the finding of guilt against the accused and so also by the appellate court. Thus, there is concurrent finding of both the courts below regarding the finding of guilt against the accused which does not call any interference by this court while exercising revisional jurisdiction.

So far as the contention of the learned counsel for the complainant that looking to the facts and circumstances of the case, the accused should have been sent to State custody for serving the sentence awarded by the learned trial court is concerned, the learned appellate court, while considering the over-all facts and circumstances of the case and also considering the fact of pendency of case since long and the age of the accused, extended the benefit of probation under Section 4 of the Probation of Offenders Act. I also concur with the same.

In view of the above, I do not find any ground to interfere with the impugned judgment. Both the revision petition stand dismissed.

Record of both the courts below be sent back with a copy of this order forthwith.