State vs Md. Chand @ Fukan
2020 Latest Caselaw 870 Del

$~52
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
    +   CRL.A. 159/2020 & CRL.M.A. 2968-2969/2020

        STATE                                            ..... Appellant
                             Through:      Ms Meenakshi Chauhan, APP
                                           for State with SI Vipin Teotia,
                                           PS Khajuri Khas.
                             versus

        MD. CHAND @ FUKAN                                ..... Respondent
                     Through

        CORAM:
        HON'BLE MR. JUSTICE VIBHU BAKHRU
                     ORDER

        %            10.02.2020
VIBHU BAKHRU, J

1. The State has filed the present appeal impugning an order on sentence dated 30.09.2019, whereby the Learned ASJ ,01, Special Court (POCSO), North East, Karkardooma Courts, had released the respondent on probation on his furnishing a personal bond of ₹25,000/. The respondent was further directed to work in an NGO, Paardarishta, for a period of six months. The State contends that the sentence imposed by the impugned order is not commensurate to the nature of the offences committed by the respondent.

2. The brief facts that led to the filing of the present appeal are stated hereafter.

3. On 01.08.2017, a report was received that an incident had taken

place between the respondent and certain family members of the victim (name withheld), who was at the material time sixteen years old. The families of the victim and the respondent were neighbours. The victim alleged that the respondent had been following her. She deposed that after her summer vacation, the respondent used to follow her when she used to go to school and pass lewd comments at her. She testified that he had told her that he liked her and would carry her school bag. She stated that on 01.08.2017, at around 4.00 p.m., when she was going for her tuition class, the respondent had thrown a piece of paper on her. She had picked up that paper and thrown it in the drain. She stated she reached her tuition class and started crying. Her teacher enquired from her as to the reason for the same and she informed him about being harassed by the respondent. Till that time, she had not told her parents about the respondent. The teacher called the victim's father who took her home. She stated that thereafter, the victim's father went to the respondent's house. And, thereafter, she heard a commotion and saw that the respondent's father and brother were beating her father. The victim's mother cried for help and her foofa (husband of her father's sister) called the PCR. She stated that at about 11.00 or 12.00 at night, she along with her maternal aunt (bua) went to the police station and her father was already there.

4. Thereafter, FIR No. 464/2017, under Sections 323/354-D/509/34 of the IPC and Section 12 of the Protection of Children from Sexual Offenders Act, 2012 (POCSO Act) was registered with Police Station Khajuri Khas. Investigation was conducted and a charge sheet was filed

against the respondent and his family members. The prosecution examined eleven witnesses to establish its case and the defence examined four witnesses.

5. The Trial Court evaluated the evidence on record and by the judgment dated 13.09.2019, convicted the respondent for the offences punishable under Section 354D of the IPC and Section 12 of the POCSO Act. The respondent was acquitted of the offence under Section 509 of the IPC. The respondent and the other accused persons (respondent's family members - father and brother) were acquitted for the offences punishable under Sections 323/34 of the IPC.

6. On 30.09.2019, the Trial Court, while passing the order on sentence, noted that the respondent was less than twenty-one years of age at the time of committing the alleged offences. As per the report, which was called from the Probation Officer, the respondent was also a first-time offender. The Trial Court held that in these circumstances, Section 6 of the Probation of Offenders Act, 1958 would be applicable and it would be mandatory for the Court to consider the grounds of probation. The Court considered the detailed report, as filed by the probation officer and directed that the respondent be referred to counselling and community service.

7. The Trial Court also considered the fact that the respondent was learning the work of flower pot painting and was earning ₹500 per week. He was not found to have any addictions. In the given facts and circumstances, the Trial Court found that this was a case fit for

probation. And, directed that the respondent be released on probation on furnishing a personal bond of ₹25,000/- with one surety of the like amount. Further, the respondent was directed to work at an NGO, Paardarshita, which is dedicated to empowerment of women, for a period of six months.

8. The State filed a petition seeking leave to appeal (CRL.LP 137/2020) against the judgement dated 13.09.2019. The State contended that the Trial Court had failed to appreciate the evidence on record and had erred in acquitting the respondent of the offence under Section 509 of the IPC and other accused persons of offences under Sections 323/34 of the IPC.

9. The said petition was listed before this Court and on 06.02.2020, this Court examined the evidence on record and found no infirmity with the decision of the Learned ASJ. Accordingly, this Court dismissed the petition seeking leave to appeal against the impugned judgement.

10. The present appeal has been filed by the State against the order on sentence dated 30.09.2019, whereby the State contends that the sentence imposed by the Learned ASJ is not commensurate to the offence committed by the respondent. The State also contends that granting the respondent relief under Section 4 of the Probation of Offenders Act, 1985 would encourage crime in the society as the order would serve as an incorrect precedent. Further, granting probation under a POCSO case would not meet the ends of justice as envisaged under the POCSO Act.

11. This Court is not persuaded to accept the contentions advanced on behalf of the appellant (State). The Trial Court is required to take into account all relevant circumstances before proceeding to sentence the convict. The age of the offender, the nature of the offence, the antecedents of the offender and other surrounding factors are required to be considered. In this case, the Trial Court considered the relevant circumstances and granted probation to the respondent. And, in view of this Court, rightly so.

12. The respondent was aged eighteen years and one month at the time of the commission of the offence. Thus, he was barely an adult. Considering that his antecedents were clean, there is no reason why benefit under Section 6 of the Probation of Offenders Act, 1958 ought not to have been extended to him.

13. In State of Himachal Pradesh v. Dharam Pal: (2004) 9 SCC 681, the Supreme Court had declined to interfere with the order passed by the High Court of Himachal Pradesh, whereby the respondent therein

- who was convicted of attempting rape - was extended the benefit of Section 4 of the Probation of Offenders Act, 1958.

14. The State had also relied on the decision of the Supreme Court in Ajahar Ali v. State of West Bengal: 2013 (12) SCALE 410, whereby the Supreme Court had expressed its view that the said case was not a fit case where the benefit of the Probation of Offenders Act, 1958 should be given to the appellant. In that case, it was found that the appellant had forcibly caught hold of the hair of the victim - a girl aged

about 16 years - and had forcibly kissed her. As a consequence, she had suffered a cut over her lower lip which started bleeding.

15. Although the behaviour of the respondent in this case cannot be countenanced; nonetheless, it cannot be equated to the gravity of the offence as committed by the appellant in Ajahar Ali (supra) and the said decision is of little assistance to the prosecution.

16. The provisions of Section 6 of the Probation of Offenders Act, 1958 have been enacted to enable persons under 21 years of age to reform themselves. The importance of probation for encouraging a reformative process, cannot be understated.

17. In Lakhanlal @ Lakhan Singh v. State of M.P.: 2019 (3) JCC 2065, the Supreme Court had also referred to the provision of Section 360 of the Cr.P.C., and had held that the benefit of probation would be in addition to the provisions of Probation of Offenders Act, 1958 and thus, the same could be extended without following the process as set out under the said Act.

18. In view of the above, this Court finds no reason to interfere with the impugned order. The appeal is, accordingly, dismissed. The pending applications are also disposed of.

VIBHU BAKHRU, J FEBRUARY 10, 2020 RK