Not Entitled To Probation Merely Due To Lapse Of Time: Gujarat High Court Directs Men Convicted U/S 354 IPC To Surrender After 18 Years

Upholding the conviction after nearly 18 years from the incident, which happened in 2008, the Court refused to extend the benefit of the Probation of Offenders Act, vacated the suspension of sentence and directed the accused to surrender.

The Court was hearing a criminal revision filed by two convicts against concurrent findings of guilt recorded by the trial court and affirmed in appeal, though the appellate court had reduced the sentence from two years’ rigorous imprisonment to one year’s simple imprisonment and enhanced the fine.

A Bench of Justice Nisha M. Thakore, while referring to the Supreme Court's ruling in the case of Ajahar Ali v. State of West Bengal (2013), wherein it was observed that "benefits of probation are not available to persons convicted of offense under crimes against women and children", accordingly held that “the present applicants are found convicted for the offense punishable under Section 354 of Indian Penal Code, which is in fact, ...a crime against victims who were hardly in their early teenage years, barely 17 and 18 years respectively, no relief of probation can be granted to the accused.”

The Court added: “As rightly explained by the Investigating Officer, on very few occasions the father of the victim would support lodging an FIR as it would always be looked upon as a trivial incident and to report such incidents would bring bad fame to girls and their family. In fact, the reports suggest that the perpetrators with such criminal mentality specifically targets minors because children are easily intimidated and lack the words to understand what is happening. They are terrified to fight back or to even share their ordeal with the parents. This is not a case to be considered for the benefit of probation”.

Advocate Rutvij S. Oza appeared for the applicants, while APP Krina Calla appeared for the State.

Background

The prosecution case arose from an incident in which two young women had gone to fetch drinking water from a Gaushala area in the morning when the accused allegedly came on a motorcycle, whistled, made obscene gestures and remarks, and grabbed the hand of one of them. The victims returned home in fear and informed the family, after which the complaint was lodged.

The defence assailed the conviction by pointing to alleged contradictions, delay in lodging the FIR, absence of a test identification parade, lack of independent witnesses, and the role of the victim’s father in narrating the complaint. It was argued that the accused were not known by name to the victims and that the courts below had proceeded on presumptions.

Alternatively, the convicts sought probation, submitting that the incident was old, their sentence had remained suspended, they had settled in their lives, were earning their livelihood, and had no subsequent criminal involvement.

The State opposed the revision and argued that both courts had recorded concurrent findings based on a reliable appreciation of evidence. It was further submitted that, considering the nature of the offence, the Court should not exercise discretion to grant probation.

Court’s Observations

The Court first re-appreciated the evidence on record and found that both victims had entered the witness box and supported the prosecution's case. It noted that the primary victim identified the accused in court, narrated the incident, and explained why she had gone to fetch drinking water despite the availability of a domestic water connection.

The Court also found that the second victim’s version was consistent with the primary victim’s account and that the defence could not dislodge the core prosecution narrative.

The Court observed: “On overall appreciation of the aforesaid witness, she has supported the case of the prosecution. Her version about the occurrence of the incident is found to be consistent and in sync with the version narrated by the primary victim. Again it is required to be noted that at the stage of examination-in-chief before the trial Court, she is reported to be aged 22 years and therefore must be around 18 years at the time of incident.”

The Court rejected the argument that the prosecution's case should fail because no independent witness was examined. It noted that the incident occurred near an isolated riverbank area in the morning, and the Investigating Officer had explained the absence of independent witnesses.

The Court further noted that even the defence witness admitted that villagers routinely visited the Gaushala borewell to collect drinking water, which weakened the defence theory that the victims had no reason to be present at the place of occurrence.

The Court also accepted the appellate court’s reasoning that a short delay in lodging the complaint was natural in the factual setting, particularly where a young woman from a rural background was involved and family honour was perceived to be at stake.

The Court noted: “As regards the ground of FIR being lodged belatedly by seven hours, the appellate Court has reason that a seven hour delay is completely natural in the peculiar facts of the case which clearly suggests that the parties were coming from rural background and when a young woman is molested and the family honours are involved, naturally the family would be slow in approaching the procedure by taking initiative of lodging the FIR before the Police Station. In such cases, in the background, various factors like time consumed to deliberate, to avail the remedy available and to consult the elder members of the family and the community leaders play a role. As regards the challenge made to the trial Court’s order on the ground of father’s roll in lodging the FIR is concerned, the appellate Court has ruled that it was entirely natural for the male head of the family in a rural environment to assist the young girls by writing the complaint on their behalf and identifying the accused with their formal names, who were otherwise not known to the girls by their actual names.”

After examining the findings of the trial and appellate courts, the High Court held that there was no error in convicting the accused under Section 354 IPC. The Court also noted that the trial court had correctly declined conviction under Section 504 IPC in the absence of evidence of specific words intended to provoke breach of peace.

The Court underscored: “Having appreciated in detail the entire evidence on record and the findings and reasons assigned by the Courts below, in my view, no error can be found with the approach of both the Courts in convicting the accused for the offence punishable under Section 354 of the Indian Penal Code, I therefore, confirm the conviction of the present applicants for the offence punishable under Section 354 of the Indian Penal Code.”

On the prayer for probation, the Court considered the lapse of time, absence of subsequent criminal antecedents and the plea that the convicts had settled in life. However, relying on the Supreme Court’s approach in Ajahar Ali v. State of West Bengal (2013) and State of Uttar Pradesh v. Shri Kishan (2005), the Court held that crimes against women and children require a different sentencing approach and cannot be treated leniently merely because time has passed.

The Court distinguished decisions cited by the defence and noted that they did not involve offences of moral turpitude in the same manner.

Conclusion

The High Court dismissed the revision, upheld the conviction and sentence as modified by the appellate court, vacated the earlier suspension of sentence and directed the convicts to surrender before the jail authority.

On a request for time to surrender, the Court granted eight weeks, making it clear that failing to surrender within that period, the concerned court would be free to issue non-bailable warrants.

Cause Title: Rajeshbhai Ashokbhai Gohel (Luhar) & Anr. v. State of Gujarat

Appearances

Applicants: Advocates Rutvij S. Oza and Umang R. Vyas

Respondent: APP Krina Calla

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