KAILASH ALIAS KALA Vs. STATE OF HARYANA

JUDGEMENT

(1.) This petition filed under Section 401 of the Code of Criminal Procedure. 1973 (for brevity 'the Code') challenges judgment dated 3-11-1988 passed by the Sessions Judge, Karnal, upholding the conviction and modifying the sentences awarded by the Sub-Divisional Judicial Magistrate, Panipat in his order dated 2-12-1987. The Sub-Divisional Judicial Magistrate in his order has convicted the petitioner for offences of buggery under Sections 377, 452 and 506, I.P.C. and vide order dated 4-12-1987 have sentenced him to undergo two years' R.I. and a fine of Rs. 400/- under Section 377. Under Section 452, he was sentenced to undergo R.I. for a period of one year and pay a fine of Rs. 100/-. Under Section 506, the petitioner was further sentenced to undergo R.I. for a period of two months. All these sentences were to run concurrently. The learned Sessions Judge while dismissing the appeal and modifying the sentences had recorded the following order:

(2.) This petition was admitted on 30-11-1988 and the petitioner was granted bail to the satisfaction of the learned C.J.M. Karnal. Then the case was listed for regular hearing. On 23-10-2002, this Court adjourned the case to 20-11-2002 because the counsel for the petitioner was not present. On 20-11-2002, the office reported the service of notice on the counsel for the petitioner, yet no one put in appearance. As the petitioner was enjoying the benefit of bail, this Court ordered the cancellation of his bail by forfeiting the bail bonds and surety bonds. Further direction was given to the C.J.M. Karnal to initiate proceedings against the petitioner under Section 446 of the Code and secure his presence by way of warrants of arrest. Accordingly, the petitioner was arrested on 10-1-2003 and since then he is in jail.

(3.) Mr. Som Nath Saini, learned counsel for the petitioner has argued that-benefit of Sections 3 and 4 of the Probation of Offenders Act, 1958 (for brevity 'the Act') read with Section 360 of the Code must be extended to the petitioner and he should be released on probation. In support of his argument, the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of State of Haryana v. Prem Chand, 1997 SCC (Cri) 1176 and Ram Naresh Pandey v. State of Madhya Pradesh, AIR 1974 SC 35On Merit, the learned counsel has submitted that the prosecution witnesses namely PW-1 Om Parkash and PW-2 Jeevan Dass did not support the prosecution story and they had turned hostile. Therefore, the whole prosecution version has been rendered doubtful and the petitioner deserves to be acquitted. The learned counsel has also pointed out that lenient view must be taken in such like cases and the sentence undergone should be considered sufficient because this type of acts are not considered as offences in countries like England.