Madhya Pradesh High Court
Azhar vs The State Of Madhya Pradesh on 13 May, 2024
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 13th OF MAY, 2024
CRIMINAL REVISION NO. 1677 of 2024
BETWEEN:-
AZHAR S/O RAFIQ ABED ABOUT 28 YEARS,
OCCUPATION -LABOUR R/O VILLAGE BORGAON,
POLICE STATION PANDHANA DISTRICT
KHANDWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRADEEP SINGH CHAUHAN - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION PANDHANA DISTRICT KHANDWA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ANUJ SINGH - PANEL LAWYER)
------------------------------------------------------------------------------------------
This petition coming on for admission this day, the court passed the
following:
ORDER
1. Present revision petition under Section 397 read with Section 401 of
the Code of Criminal Procedure, 1973 has been preferred by the
petitioner against the impugned judgment of conviction and order of
sentence passed by the Sessions Judge, Khandwa District Khandwa
in Criminal Appeal No.44/2022 partly modifying the impugned
judgment of conviction and order of sentence dated 03-02-2022
passed by the Judicial Magistrate First Class, Khandwa District
Khandwa in Criminal Case No.786/2018 whereby the petitioner has
been convicted as under:
Sections Imprisonment Fine
451 of IPC 6 months' RI Rs.1,000/- with default
stipulation.
354 of IPC 1 year's RI Rs.1,000/- with default
stipulation
2. Facts of the case in short are that the on 25-06-2018 at about
1:45pm when prosecutrix was alone and keeping her files in the
cupboard of Anganwadi Kendra at that time, petitioner/accused
entered into her room and with bad intention caught hold of her
hands and started kissing her cheeks. Prosecutrix freed herself by
pushing him then accused threatened her to kill and said that if she
cry he will kill her and fled away from the spot. On the complaint of
prosecutrix, FIR at Crime No.271/2018 was registered against the
petitioner. After due investigation, charge-sheet was filed before the
Magistrate who tried the petitioner for the aforesaid offences.
3. Before the trial Court -Judicial Magistrate First Class, Khandwa,
petitioner abjured his guilt and prayed for trial. Prosecution
examined 6 witnesses in support of its case and in defence,
accused/petitioner has been examined under Section 313 of Cr.P.C.
After recording of evidence ocular as well as documentary and
hearing the submission of counsel for the parties, the trial Court
convicted and sentenced the petitioner for offence under Sections
354 and 452 of IPC and sentenced him to undergo 1 year's RI with
fine of Rs.1,000/- and 1 year's RI with fine of Rs.1,000/-
respectively with default stipulation.
4. Before the Sessions Judge, Khandwa District Khandwa, appeal has
been preferred by the petitioner, challenging the impugned
judgment of conviction and order of sentence passed by the Judicial
Magistrate First Class, Khandwa District Khandwa which was
partly allowed and petitioner was convicted and sentenced as
referred above. Hence, this revision petition.
5. According to learned counsel for the petitioner, there are material
contradictions persist in the evidence led by the prosecution.
Prosecution did not examine any eye witness in the case while the
place where such alleged incident occurred is Anganwadi Kendra
and situate in mid of the village and probably there will be other
persons also. It is further submitted that the trial Court committed
grave error in relying over the statements of hearsay witnesses i.e.
son of prosecutrix Vicky (PW-3) and head of Anganwadi Kendra
namely Saroj Patel (PW-5). Apart that, learned counsel for the
petitioner draws attention of this Court towards the contradictions
and omissions crept into the statements of witnesses. Thus, both the
Courts below have committed error in convicting the petitioner by
relying over the ocular evidence of victim and her relatives which
are not supported by any independent witness.
6. On the other hand, learned Public Prosecutor for the
respondent/State opposed the prayer made by the petitioner and
submitted that the trial Court has rightly convicted the petitioner for
the offences referred above and rightly confirmed by the Sessions
Court. Thus, prayed for dismissal of petition.
7. Heard learned counsel for the parties and perused the record of the
Courts below.
8. Here, petitioner is facing the conviction and sentence for the offence
under Sections 451 and 354 of IPC as referred above. The victim
(PW-1) remained firm in all her statements i.e. Sections 161 & 164
of Cr.P.C. and the statement recorded before the trial Court. In her
examination-in-chief she identified the accused and narrated the
story in specific term while supporting the story of prosecution. In
her cross-examination, she stood firm over her testimony and did
not deviate from her statement.
9. Version of victim is very well supported by other witnesses also i.e.
her son Vicky (PW-3), her husband Prakash (PW-2) and head of the
Anganwadi Kendra Saroj Patel (PW-5). There is as such no
contradiction and omission in the statements of victim and other
witnesses compelling the Court to take different view. The victim
has specifically supported the story of prosecution.
10. So far as the contention of counsel for petitioner in relation to non
examining the independent witness is concerned, such plea cannot
give benefit to the petitioner because since the incident had taken
place in a very short span of time, therefore, it might be possible
that the persons surrounding the spot, could not have noticed the
incident. Further since the version of victim remained firm,
therefore, on the basis of the said version supported by other
witnesses, conviction can be recorded against the accused person.
11. Two Courts below i.e. the trial Court as well as appellate Court
convicted the petitioner for the offence under Sections 451 and 354
of IPC and recorded concurrent findings against the petitioner.
Although trial Court convicted the petitioner for offence under
Section 452 of IPC but the appellate Court altered it and convicted
him under Section 451 of IPC in place of offence under Section 452
of IPC. Thus, in this criminal revision, this Court has limited scope
of interference in the judgment of conviction and order of sentence
as passed by the trial Court and affirmed by the appellate Court.
12. The Hon'ble Apex Court in the case of K. Prakashan Vs.
P.K.Surenderan (2008) 1 SCC 258 and T. Subramanian Vs.
State of Tamil Nadu (2006) 1 SCC 401 held that if two views are
possible and one view is taken by the trial Court after due
appreciation of evidence then unless sheer perversity or illegality
crept in to the judgment of trial Court, the scope of interference is
limited.
13. This Court in the case of Miss X (Victim) Vs. Santosh Sharma
and others passed in Cr.A.No.6326/2019 while dealing with the
offence under Section 354 of IPC (read with provisions of POCSO
Act) discussed the anatomy of crime while discussing the Broken
Window Theory. Said judgment was challenged by the accused
Santosh Sharma by way of SLP (Cri.) No.1373/2020 but could not
succeed and conviction in the said case was affirmed but sentence
was reduced. The said theory was originally in realm of law
enforcement but this Court discussed in relation to Adjudication
also. Some of the relevant paragraphs are worth reproduction to
elaborate the concept:
"30. Some Crimes give Psychic Gains whereas some Crimes
give Monetary Gains. If Cultural Norms affect the law,
the law likewise affects cultural norms. The expressive
function of punishment is the law's capacity to send a
message of condemnation about a particular criminal
act. (See Joel Feinberg, the Expressive Function of
Punishment, Jeffrie Murphy, Forgiveness and
Resentment). In Jeffrie Murphy's formulation, a
wrongdoer's crime sends a message to the world about
the value of his victim. Conversely, punishment sends a
reciprocal message, in a kind of dialogue with the crime.
Punishment allows the criminal justice system to
condemn the criminal's devaluation of the victim by
devaluing him or her as a result of it. Expressive
punishment therefore, recognizes the relationship
between victim, offender and society as a whole that
are all implicated by the offence.
31. Therefore, the expressive function of punishment is both
retributive and utilitarian. Retributive punishment gives
even if not proportional to the physical/psychic harm
done to a victim even then it gives a chance to the
perpetrator to purge his misdeeds and act as deterrent
to other probable perpetrators. Similarly utilitarian
function of punishment has the power to change social
norms and behaviour via the messages it expresses and
may help in reduction of crime.
32. The instant case is the case of Street Harassment and it
has more psychological harm into its ambit than
physical one because it has an enormously disruptive
effect on women's identities and self image. Street
harassment is very pervasive. According to one account,
street harassment can be observed in three level
hierarchy with most severe incarnations including
sexually explicit references to a woman's body or sexual
acts (1) gender based profanity (2) qualifying comments
accompanied by slurs about race or sexual orientation
(3) physical acts such as groping. Moderately severe
harassment includes sexual innuendos or references to
a woman's gender or body that are not sexually
explicit. Least severe category includes staring,
whistling or comments made to a woman that are
unnecessary or not political in nature.
33. In our society setup specifically in the area where
incident took place where trappings of ignorance,
feudalistic pattern of society and poor sex ratio coupled
with the palpable gender bias make life worst when girl
(or female) encounter such street harassment because as
explained earlier it amounts to Spirit Murder (Feminist
Scholar has used this term, originally devised by
Patricia Williams). Therefore, street harassment is
problematic both in and of itself and as a reminder of
the pervasive threat of literal sexual violation women
face regularly while going to Schools, Colleges or their
Working Places.
34. In fact street harassment is far more pervasive and
humiliating than the threat of physical sexual assault,
therefore, it is imperative that Investigation (Police
Authority), Prosecution (Public Prosecutor) and
Adjudication (Judge) must keep in mind that Crime and
Disorder are strongly interrelated and therefore, Broken
Windows Theory, a Criminological Theory mainly
influence Police and law enforcement but has material
bearing in realm of prosecution and adjudication also.
According to this theory, targeting minor disorder is
expected to reduce occurrence of more serious crime.
Idea behind is can be summarized in an expression that
if a window in a building is broken and left unrepaired,
all of the windows will soon be broken. Therefore, it is a
theory of Order Maintenance Police but it has relevance
for prosecution and for adjudication also as referred
above because punishment of minor offences ought to
have preventive effect on more harmful acts and
therefore, if minor offences at the threshold are checked
or objected then it may prevent commission of severe
offences.
36. In India non resolution of minor boundary dispute in
agricultural field or delay in partition of land by revenue
authorities at times result in offence under Sections
325/326 or 307 or 302 of IPC. Incrementally stage-wise.
Therefore, nipping the crime at the budding stage is
imperative and is the need of hour otherwise lawlessness
shall overshadow the 'Rule of Law'."
14. In the cumulative analysis, facts and circumstances of the case and
the fact that two Courts below have given concurrent findings in
relation to conviction of the petitioner and victim remained firm on
her statement and her version is supported by other witnesses and
prosecution established its case beyond reasonable doubt, this Court
is of the considered view that the trial Court as well as appellate
Court did not err in convicting the petitioner for the offence
referred above. Therefore, the revision petition preferred by the
petitioner is hereby dismissed. Judgment of conviction and sentence
passed by the Courts below is affirmed. Petitioner is in jail. He
shall undergo the jail sentence as imposed by the appellate Court.
15. Copy of this order along with record be sent to the trial Court for
information and compliance.
(ANAND PATHAK)
Anil* JUDGE
ANIL KUMAR
CHAURASIYA
2024.06.01
17:57:38 +05'30'
