Chattisgarh High Court

Neelmani Bariha vs State Of Chhattisgarh on 4 July, 2022

                                                                  NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                       Reserved on 24.6.2022

                       Pronounced on 4.7.2022
                         CRR No. 189 of 2010

      Neelmani Bariha son of Styanand Bariha aged about 25 years
       R/o Village Boirmal District Mahasamund CG --- Applicant
                                 Versus
       State of Chhattisgarh, through the District Magistrate,
       Mahasamund, District Mahasamund, CG.
                                            ---- Respondent


       For applicant            Shri Dinesh Yadav Adv appears
                                on behalf of shri Shivendu Pandya,
                                Adv.

       For respondent/State - Shri Ashish Tiwari, GA




                                CAV Order

       This revision under Section 397 read with 401 Cr.PC has been

preferred against the judgment impugned dated 03.04.2010 passed

by Additional Sessions Judge, Mahasamund in Criminal Appeal No.

43/2010 arising out of the judgment dated 27.1.2010 passed by

Judicial Magistrate First Class, Saraipali in Criminal Case No.

69/2009.

2.     Facts

of the case in brief are that on 2.12.2008 at about 7 PM

when the prosecutrix was returning after fetching water, the

accused/applicant came there and taking advantage of her

loneliness and darkness, kissed her and also pressed her breasts.

When the prosecutrix told him to disclose the incident to her family

members, he left her and went away. After returning home, the

prosecutrix narrated the incident to her husband namely

Premanand (PW-2). As it was night at the relevant time, the report

could not be lodged on the same day. It however was lodged on the next day. Thereupon, an offence under section 354 IPC was

registered against the applicant and the prosecutrix was got

medically examined. After investigation charge sheet was filed

against the applicant under Section 354 IPC followed by framing of

charge accordingly. Applicant however has denied the charge and

sought to be tried.

3. Prosecution examined 04 witnesses in support of its case.

Statement of the accused/applicant under Section 313 CrPC has

also been recorded in which he pleaded his innocence and false

implication in the case.

4. Learned Magistrate by order dated 27.1.2010 convicted the

accused/applicant under Section 354 IPC and sentenced him to

undergo RI for one year and pay fine of Rs. 2000/-, in default of

payment of fine to further undergo SI for three months. On appeal

being preferred by the present applicant, his conviction under

section 354 IPC has been confirmed but the sentence has been

reduced to RI for six months from that of one year. Sentence of fine

has however been kept as it is. Hence this revision.

5. Counsel for the applicant submits that even if the entire case

of the prosecution is taken as it is, the ingredients of Section 354

IPC are not attracted to the case in hand, and therefore the

conviction of the applicant is liable to be set aside. He submits that

looking to contradictions and omissions in the evidence of the

victim (PW-1) and that of her husband (PW-2) conviction of the

applicant u/s 354 IPC cannot be sustained. Lastly, it is submitted

that as the incident had taken place in the year 2008 and since

then the applicant has been facing prosecution and that even when

he was released on bail by this Court suspending the sentence

imposed on him, he did not misuse the liberty, and in these circumstances the sentence may be reduced to the period already

undergone.

6. On the other hand, counsel for the respondent/State supports

the judgment impugned and submits that both the courts below

have recorded a categorical finding regarding the act attributed to

the applicant where he kissed the victim and pressed her breast

with an intention to outrage her modesty, and in these

circumstances no leniency can be shown to the applicant. He

further submits that in the revisional jurisdiction this Court is not

required to re-appreciate the evidence brought on record, and

unless and until the findings so recorded appear to be perverse, the

well-reasoned findings recorded by both the courts below cannot be

interfered with.

7. Heard counsel for the parties and perused the material

available on record including the judgment impugned.

8. Perusal of the material available on record goes to show that

both the courts below have been fully justified in recording a well

reasoned finding of holding the accused/applicant guilty under

Section 354 IPC, and as the findings so recorded are based on the

evidence of the victim (PW-1), her husband (PW-2) and other

material on record, this Court does not find any irregularity or

illegality in the judgment impugned as far as it relates to the

conviction part thereof. Conviction of the applicant under Section

354 IPC is thus maintained.

9. The other submission of the counsel for the applicant is

regarding the sentence part of the judgment impugned. While

dealing with the question of sentence in the matter of Mohammad

Giasuddin Vs. State of Andhra Pradesh reported in AIR 1977 SC 1926 it

has been observed by the Apex Court as under:

"Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re- culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'"

10. As regards the case in hand, from the record it is apparent

that the incident had taken place in the year 2008; the applicant

has been facing long drawn prosecution since then, there is nothing

to show that he ever flouted the order of suspension of sentence

and grant of bail dated 23.4.2010 or in any manner he did anything

detrimental to the society. Even when he was granted bail by the

courts below, there is no report of any violation thereof by the

applicant. Looking to all these circumstances and also taking

support of the decision of the Apex court referred to above, this

court is of the considered opinion that no useful purpose would be

served in again sending the applicant to jail after such a

considerable long time. Accordingly, the setnence imposed on the