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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1623 OF 2013 (Arising out of SLP (Crl.) No. 2817 of 2013)

Ajahar Ali                                                         ... Appellant  

VERSUS

State of West Bengal                                                   ... Respondent  

J U D G M E N T

Dr. B.S. Chauhan, J.

1. Leave granted.

2. This appeal has been preferred against the impugned judgment  

and  order  dated  19.9.2012   passed  by  the  High  Court  of  

Calcutta in Criminal Revision No. 3240 of 2012  affirming the  

judgment  and  order  of  the  learned  Sessions  Judge  dated  

22.8.2012  dismissing  the  appeal  of  the  appellant  against  the  

judgment and order of the learned Magistrate dated 9.5.2012,  

by which and whereunder the learned Magistrate had found the  

appellant guilty for the offence punishable under Section 354 of  

Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’).

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He had been sentenced to suffer SI for 6 months and further to  

pay a  fine  of  Rs.1,000/-,  and in  default  of  payment  of  fine,  

further to undergo SI for two months.   

3. Facts and circumstances giving rise to appeal are that:

A. On  6.11.1995,  Nasima  Begum (PW.1),  aged  about  16  years  

filed a complaint  alleging that  on that  day while she was going to  

attend her tuition alongwith her  friend Nilufa Khatun,  she met the  

appellant on the way who suddenly came and forcibly caught hold of  

her hair and planted a kiss,  resultantly, she suffered a cut over her  

lower lip and started bleeding.   

B. A  case  under  Section  354/324  IPC  was  registered.  After  

conducting the trial,  the court  of  Ist  Judicial  Magistrate,  Ist  Court,  

Malda vide judgment and order dated 9.5.2012 found the appellant  

guilty  for  offence  under  Section  354  IPC  and  sentenced  him  as  

referred to hereinabove.  

C. Aggrieved, the appellant preferred Criminal Appeal No.2/2012  

before the learned Sessions  Judge,  Malda  and the said  appeal  was  

dismissed vide judgment and order dated 22.8.2012.  

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D. Appellant  challenged  both  the  aforesaid  orders  by  filing  

Criminal Revision before the High Court which has been dismissed by  

the impugned judgment and order dated 19.9.2012.

Hence, this appeal.    

4. Shri S.C. Ghosh,  learned counsel  appearing for  the appellant  

has  half-heartedly  challenged  the  findings  of  fact  recorded  by  the  

courts  below.  However,  we  are  not  inclined  to  re-appreciate  the  

evidence  and  disturb  the  findings  recorded  by  the  three  courts,  

therefore,  he argued that  since the incident  occurred more than 18  

years ago and at that time the appellant as well as the complainant  

were about 16 years of age, the court should not send the appellant to  

jail at such a belated stage.  Considering the fact that the appellant was  

juvenile  in  view  of  the  provisions  of  Juvenile  Justice  Act,  2000  

(hereinafter referred to as the ‘JJ Act 2000’), he ought to have been  

tried before the Juvenile Justice Board and not by the criminal court,  

as was done. Even otherwise, considering the time gap of 18 years and  

the fact that the appellant as well as the complainant have settled in  

life and both of them are married and have children, their lives should  

not  be  disturbed.   In  all  circumstances,  the  court  should  give  the  

benefit to the appellant under the provisions of Probation of Offenders  

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Act, 1958 (hereinafter referred to as the ‘Act 1958’). Therefore, the  

appeal deserves to be allowed.  

5. On  the  other  hand,  Shri  Anip  Sachthey,  learned  Standing  

counsel  appearing  for  the  State  of  West  Bengal  has  opposed  the  

appeal contending that considering the nature of offence wherein the  

modesty of a young girl was outraged, the question of showing any  

leniency or  granting the benefit  of  the  Act  1958 is  not  warranted.  

Even if the case of the appellant is considered under the JJ Act 2000,  

the maximum punishment that can be awarded is of 3 years, while in  

the instant case, the appellant had been sentenced only for a period of  

six months. Therefore, it will be a futile exercise to consider the case  

of  the  appellant  on  that  anvil.  Thus,  the  appeal  is  liable  to  be  

dismissed.  

6. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

7. In view of the concurrent findings recorded by the three courts  

below, we are not inclined to re-appreciate the evidence.  The same  is  

also not warranted in view of the fact that the complainant, Nasima  

Begum  who  had  no  enmity  against  the  appellant  has  been  very  

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consistent  about the factual  matrix not only in her  statement  under  

Section 161 of Code of Criminal Procedure, 1973 (hereinafter referred  

to  as  `Cr.P.C.’)  but  also  before  the  court  and  had  supported  the  

prosecution case fully. Her version was corroborated by several other  

witnesses  and  the  courts  below  have  recorded  a  finding  that  the  

appellant was guilty beyond reasonable doubt.  

8. Learned counsel  for  the appellant  pleads for  leniency on the  

ground that the trial has gone on for a long time; furthermore, he has  

no previous criminal history and that he may lose his job.  For the  

purpose of seeking a benefit under the Act 1958 he has placed reliance  

on the judgment of this Court in Mohamed Aziz Mohamed Nasir v.  

State of Maharashtra, AIR 1976 SC 730, wherein the benefit of the  

Act 1958 was given observing further that even if such plea had not  

been raised before the court below, it can be raised for the first time  

before this court.   That was a case under Section 379 r/w Section 34  

IPC  and  the  charge  against  the  said  appellant  was  snatching  two  

sarees from one Govind who was carrying them from the shop of  his  

master to that of a washer and dyer.

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9. In  Musa Khan & Ors. v. State of Maharashtra, AIR 1976  

DV 2566, this Court observed that the purpose of the provisions of the  

Act 1958 is to reform the juvenile offenders though  that was a case of  

Section 149 IPC and the court held that culpable liability does not  

arise from mere presence in the assembly and even participation does  

not  necessarily  lead  to  the  conclusion that  he joined that  unlawful  

assembly willingly.  

10. This Court in  Karamjit Singh v. State of Punjab, (2009) 7  

SCC 178, to which one of us (Dr. B.S. Chauhan, J.) was a member of  

the Bench, after considering various earlier judgments and particularly  

Om Prakash & Ors. v. State of Haryana, (2001) 10 SCC 477 and  

Manjappa v. State of Karnataka, (2007) 6 SCC 231; held  that a  

relief  under the Act  1958 should be granted in the offences which  

were not of a very grave nature or where the mens rea is absent.  

11. In State of Himachal Pradesh v. Dharam Pal, (2004) 9 SCC  

681,   this  Court  considered  the  appeal  of  the  State  of  Himachal  

Pradesh wherein the benefit of the Act 1958 had been given to the  

accused who was held guilty for offence under Section 376/511  IPC  

for  attempt  to  commit  rape.  This  Court  in  the  peculiar  facts  and  

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circumstances of that case did  not interfere with the judgment and  

order of the High Court, but at the same time did not approve of the  

reasoning given by the High Court. The court held as under :

“According to us,  the offence of  an attempt to commit   rape is a serious offence, as ultimately if translated into   the  act  leads  to  an  assault  on  the  most  valuable   possession of a woman i.e. character, reputation, dignity   and honour.  In  a traditional  and conservative  country   like India, any attempt to misbehave or sexually assault a   woman  is  one  of  the  most  depraved  acts.  The  Act  is   intended to reform the persons who can be reformed and   would  cease  to  be  a  nuisance  in  the  society.  But  the   discretion to exercise the jurisdiction under Section 4 is   hedged with a condition about the nature of offence and   the character of the offender. Section 6 of the Act makes   the provisions applicable in cases where offenders are   under 21 years of age, as restrictions on imprisonment of   offenders have been indicated in the said provision. In a   case  involving  similar  facts,  this  Court  in  State  of   Haryana v. Prem Chand, (1997) 7 SCC 756 upheld the   judgment of the High Court which extended the benefit of   provisions under Section 4 of the Act.  Considering the   peculiar  circumstances  of  the  case  and  taking  into   account  the  fact  that  on  the  date  of  occurrence  the   accused was less than 21 years old, we feel this is a case   where no interference is called for with the judgment of   the High Court, though some of the conclusions arrived   at by the High Court do not have our approval.”

12. In the instant case, as the appellant has committed a heinous  

crime  and  with  the  social  condition  prevailing  in  the  society,  the  

modesty of a woman has to be strongly guarded and as the appellant  

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behaved like a road side Romeo, we do not think it is a fit case where  

the benefit of the Act 1958 should be given to the appellant.   

13. This brings us to the next question regarding the applicability of  

JJ Act 2000. This issue has been raised for the first time in this court  

and the appellant can do so in view of the larger Bench judgment of  

this Court in  Abuzar Hossain @ Gulam Hossain v. State of West  

Bengal, (2012)  10 SCC 489,  wherein  it  was  held  that  the  plea  of  

juvenility can be raised at any stage irrespective of delay in raising the  

same. But the question that would arise is if the matter came before  

the  Juvenile  Justice  Board,  the  maximum  sentence  that  can  be  

awarded  in  such  a  case  is  of  3  years.   In  the  instant  case,  the  

punishment awarded is only six months so the cause of the appellant  

is not prejudiced.  

14. The  provisions  of  Section  354  IPC  has  been  enacted  to  

safeguard public morality and decent behaviour.   Therefore,  if  any  

person  uses  criminal  force  upon any woman with  the  intention  or  

knowledge that the woman’s modesty will be outraged, he is to be  

punished.  

15. In  State of  Punjab v.  Major Singh, AIR 1967 SC 63,  this  

Court  observed that  modesty is  the quality of  being modest  which  

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means   as  regards  women,  decent  in  manner  and  conduct,  

scrupulously chaste, though the word ‘modesty’ has not been defined  

in the Code. The ultimate test for determining whether modesty has  

been outraged is whether the action of the offender as such can be  

perceived as one which is capable of lowering the sense of decency of  

a woman.  

(See also:  Aman Kumar v. State of Haryana, AIR 2004 SC 1497;  

Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC  

1677; and Turkeshwar Sahu v. State of Bihar, (2006) 8 SCC  560).  

16. In Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill  

&  Anr.,  AIR  1996  SC  309,  slapping  a  woman  on  her  posterior  

amounted to outraging of her modesty within the meaning of Sections  

354 and 509 IPC.  

17. In Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997  

SC 3011 and Apparel Export Promotion Council v. A.K. Chopra,  

AIR 1999 SC 625, this court held that the offence relating to modesty  

of woman cannot be treated as trivial and a lenient view by giving six  

months  imprisonment  on  the  ground of  juvenility  does  not  require  

consideration.  

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18. In  Chinnadurai v. State of Tamil Nadu, AIR 1996 SC 546,  

this  Court  rejected  the  plea  for  reduction  of  sentence  in  view  of  

considerable  delay and other circumstances observing that sentence  

has to be awarded taking into consideration the gravity of the injuries.  

19. In  State of  U.P.  v.   Shri  Kishan, AIR 2005 SC 1250,  this  

Court  has  emphasised  that  just  and  proper  sentence  should  be  

imposed.  The Court held:

“……  Any  liberal  attitude  by  imposing  meager   sentences  or  taking  too  sympathetic  view  merely  on   account of lapse of time in respect of such offences will   be result-wise counter productive in the long run and  against societal interest which needs to be cared for and   strengthened  by  string  of  deterrence  inbuilt  in  the   sentencing system.  

The Court will be failing in its duty if appropriate   punishment is not awarded for a crime which has been   committed not only against the individual victim but also   against  the  society  to  which  the  criminal  and  victim   belong. The punishment to be awarded for a crime must   not  be  irrelevant  but  it  should  conform  to  and  be   consistent with the atrocity and brutality with which the   crime has been perpetrated,  the enormity  of  the crime   warranting public abhorrence and it should ‘respond to   the society's cry for justice against the criminal’.”   

                                                    (Emphasis added)

20. In  Sadhupati Nageswara Rao v.  State of Andhra Pradesh,  

AIR 2012 SC 3242, this Court observed that the courts cannot take  

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lenient view in awarding sentence on the ground of sympathy or delay  

as the same cannot be any ground for reduction of sentence.   

21. In view of the above, we are of considered opinion that as the  

appellant  had  been  awarded  only  six  months  imprisonment,  

considering the matter under the JJ Act, 2000 would not serve any  

purpose at  such a belated stage.   The High Court  had been of  the  

opinion that appellant had been dealt with very leniently and it was a  

fit  case where the High Court  wanted to enhance the sentence but  

considering the fact  that the incident occurred long back,  the High  

Court refrained to do so.   

22. Thus,  the  appeal  fails  and  is  accordingly  dismissed.   The  

appellant  is  directed to surrender within a period of  four weeks to  

serve out the sentence,  failing which the Chief Judicial Magistrate,  

Malda, is directed to take him into custody to serve out the sentence.  

A copy of the order be sent to Chief Judicial Magistrate, Malda for  

information and action.   

….………………..........J.  (DR. B.S. CHAUHAN)  

         …...................................J.            NEW DELHI;                (S.A. BOBDE)  

October 4,  2013       

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