Himachal Pradesh High Court
Pintu Ram Alias Suminder vs State Of Hp on 11 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 17 of 2007
Date of Decision: 11.7.2016.
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___________________________________________________________
[
Pintu Ram alias Suminder .........Petitioner.
Versus
State of HP ............Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1? Yes
For the petitioner: Mr. Adarsh Vashishta, Advocate.
For the respondent:
rt Mr. Rupinder Singh Thakur, Additional
Advocate General with Mr. Rajat
Chauhan, Law Officer.
________________________________________________________
Sandeep Sharma, J. (Oral)
Present criminal revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment of conviction and sentence rendered by learned Sessions Judge, Hamirpur, H.P., in Criminal Appeal No. 31 of 2006, affirming the judgment passed by learned Judicial Magistrate, Ist Class, Court No.II, Hamirpur, HP, whereby the petitioner-accused namely Pintu @ Suminder has been sentenced to undergo rigorous imprisonment for a term of one year and fine of Rs. 1,000/- and to undergo rigorous imprisonment Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:47:33 :::HCHP -2-for the period of two months in case of default in payment of fine for an offence under Section 392 of IPC and further sentenced .
under Section 323 of Indian Penal Code, to undergo three months' simple imprisonment and Rs. 300/- fine and one month simple imprisonment in case of default in payment of fine. However, both the sentences are to run concurrently.
of
2. Briefly stated facts as emerge from the record are that on 9.7.2001, complainant-PW1 Anjana Kumari lodged report in the rt police station, wherein she stated that she belongs to village Buhar and at about 9:00AM, she had gone to cut the grass. At around 10:30 AM, when she was coming back, she saw two men coming at her back, who seeing secluded place, started hitting the complainant with fist blows and they forcibly took away the gold ear rings from her ear. The complainant started shouting for help.
When she raised alarm, the accused took off an iron rod from his bag and started hitting the complainant, which the complainant was able to snatch from the accused. Thereafter, complainant ran away from the spot crying loudly for help. On hearing her cries, resident of nearby village Ludiana namely Amarnath PW9 rushed to the spot to help her. However, in the meantime, both the ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP -3- accused ran away towards 'Nallah'; husband of the complainant along with co-villagers Amar Nath PW9, Partap Chand PW6, .
Pawan Kumar and Jogi Ram of Village Badaula etc. with a view to catch those thieves went towards the Nallah, where they found accused- thieves lying injured in the Nallah. They were brought to the police station by the aforesaid persons. In the police station, of during investigation, they revealed their names as Rajeev of village Bainjoi and Pintu alias Suminder of village Karangi District Bareili, rt UP. Police recorded the statement of the complainant-PW1 on the basis of which, FIR Ext.1/A was registered. Police also got the medical examination of the accused as well as the complainant conducted. Search of the accused was carried out in the Police Station, whereby one golden ear ring was recovered, which was later on identified by the complainant. Police inspected the spot of the incident and prepared the Spot map and recovered a black coloured Slipper and one pair shoes (red colour) from the place, from where the accused had tried to run away. Police arrested the accused persons and finally, after the completion of the investigation, came to the conclusion that prima-facie case exists against the accused under Section 392, 323 and 506 read ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP -4- with Section 34 of the Indian Penal Code. Police presented the challan before the competent court of law. Learned trial Court .
after satisfying itself that prima facie case exists against the accused put a notice of accusation, to which they pleaded not guilty and claimed trial. However, it may be noticed that one accused namely Rajeev died during the pendency of the trial of before the learned trial Court. Accordingly proceedings against him were dropped by the learned trial Court.
3. rt Learned trial Court on the basis of evidence adduced on record by the prosecution, came to the conclusion that accused Pintu is guilty of having committed offences under Sections 392 and 323 read with Section 34 IPC, accordingly vide separate order dated 31.8.2006, sentenced the petitioner-
accused, description whereof has already been given above.
4. The petitioner being aggrieved with the judgment of conviction passed by the learned trial Court, filed appeal under Section 374 of Cr.PC before the Court of learned Sessions Judge, Hamirpur, who vide judgment dated 17.1.2007, dismissed the appeal. Hence, this criminal revision petition before this Court.
::: Downloaded on - 15/04/2017 20:47:33 :::HCHP -5-5. Mr. Adarsh Vashishta, Advocate, appearing for the petitioner-accused vehemently argued that impugned judgments .
passed by both the courts below are not sustainable in the eye of law as the same are not based upon the correct appreciation of evidence available on record. As per him, courts below have erred in passing the impugned judgment as the same is based of upon the surmises and conjectures. It is forcefully contended that no case much less prima facie case has been proved or rt established against the petitioner-accused and as such petitioner could not be held guilty for having committed offences under Section 392 and 323 IPC. During arguments having been made by him, Mr. Vashishta invited attention of this Court to the statements of prosecution witnesses recorded by learned trial Court to demonstrate that there are major contradictions and their versions appear to be untrustworthy and, as such, no conviction, if any, could be recorded on the basis of the same. He vehemently argued that bare perusal of story put forth by the prosecution raises serious doubt about its correctness because nothing was done at the spot, rather, there is ample material available on record to suggest that all the formalities were completed by the ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP -6- police at Police Station, which really casts doubt about the genuineness/correctness of the story put forth by the prosecution.
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He also contended that as per story of prosecution, ear ring was recovered from the pocket of the deceased accused Rajeev in the Police Station, whereas recovery of the same has been shown from the spot, hence story put forth by the prosecution is not worth of lending any credence. He also raised issue with regard to non citation of the sole eye witness, Shri Angat Ram, who was named rt in FIR by the complainant but for the reasons best known to the prosecution, he was never cited as prosecution witness by the prosecution. It is also contended on behalf of the petitioner that no injury on the ear of the complainant was ever found, which itself falsifies the statement given by the complainant that accused persons using force snatched her ear rings. He also stated that there is no evidence available on record, which shows that complainant has been beaten by the accused with fist blows, as has been alleged in the prosecution story. Mr. Vashishta laid much emphasis on the fact that it stands proved on record that the statements of all the witnesses were recorded in the Police Station and the recovery memo was also prepared in the Police ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP -7- Station. As per him, PW8 in his cross-examination himself admitted that he had not visited the spot, which shows that entire .
investigation has been done in the Police Station in a whimsical manner, which demonstrates the sheer abuse of process of law.
As per Mr. Vashishta, bare perusal of the evidence on record clearly suggests that Mr. Angat Ram was the sole eye witness in of the instant case, whose name also figures in the FIR, but he was not cited as prosecution witness and as such, courts below ought rt to have drawn adverse inference against the prosecution for aforesaid serious omission.
6. Per contra, Mr. Rupinder Singh Thakur, learned Additional Advocate General, duly assisted by Mr. Rajat Chauhan, Law Officer, appearing for the respondent-State supported the judgments of conviction passed by courts below and argued that no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case. During arguments having been made by Mr. Thakur, he invited attention of this Court to the statements of various prosecution witnesses to demonstrate that how specific and candid they have been while deposing before the learned Court below. While rebutting the arguments ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP -8- having been made by Mr. Vashishta, counsel representing the petitioner, he vehemently argued that it stands proved on record .
that after hearing cries of the complainant, villagers rushed to the spot and they caught hold of the accused persons, who were later on brought to the police station, where they admitted their guilt in presence of the villagers. Mr. Thakur also contended that of since the accused were brought to the Police Station by the villagers, their statements could not be recorded on the spot and rt moreover, ear ring was also recovered in the police station in presence of other prosecution witnesses. He also refuted the contention raised on behalf of the petitioner that courts below should have drawn adverse inference for not citing Angat Ram as prosecution witness, who as per version of the complainant, was first to reach at the spot after hearing her cries. As per Mr. Thakur, since there were number of villagers, who had nabbed the accused from a Nallah, there was no need to prosecution to cite them all as PWs and, as such, no adverse inference could be drawn for non-citing of the Shri Angat as prosecution witness. At last, Mr. Thakur, vehemently contended that there is ample evidence on record suggestive of the fact that accused ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP -9- committed the robbery by snatching ear rings of the complainant and, as such, he has been rightly convicted for having committed .
offences under Sections 392 and 323 of Indian Penal Code. Mr. Thakur, also reminded the Court that Court has very limited powers as far as re-appreciation of the evidence is concerned while exercising revisionary jurisdiction. He prayed that judgments of the of learned Courts below deserve to be upheld as the same are based on correct appreciation of evidence available on record.
7. rt I have heard learned counsel for the parties as well carefully gone through the record.
8. There is no doubt that this Court has very limited powers to re-appreciate the evidence available on record, under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the present case, where petitioner-accused has been held guilty of having committed offences under Section 392 and 323 of the Indian Penal Code and has been convicted and sentenced to undergo rigorous imprisonment for one year under Sections 392 and 323, this Court solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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record, undertook an exercise to critically examine the witnesses on record to reach just and fair decision.
.
9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in of case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, rt it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse .
of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its of judicial process or illegality of sentence or order."
10. In the present case, this Court while hearing the parties rt at length had an occasion to go through the entire evidence available on record. Though, this Court after perusing evidence available on record has no doubt in any manner that both the courts below have dealt with each and every aspect of the matter very meticulously and prosecution has been able to prove its case beyond reasonable doubt but still in the interest of justice deemed it fit to analyze the evidence on record to ensure that no injustice is caused to accused.
11. In the instant case, prosecution with a view to prove its case examined as many as eleven witnesses. Complainant, Anjana Kumari appeared as PW1 and stated before the Court that on 9.7.2001, when she had gone to cut the grass, accused persons, who appeared from her back, gave beatings to her and ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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snatched her golden ear ring. It has also come in her statement that both the accused also tried to beat her with an iron rod which .
she was able to snatch from them. She also stated that thereafter, she ran away raising alarm and on hearing her cries, villagers reached at the spot. It has also come in her statement that villagers nabbed the accused from a nearby 'nallah' and the of accused were later on brought to the police station by them. PW2 Parkasho Devi, Pardhan Gram Panchayat, Dehra, also stated that rt in her presence Anjana Kumari-complainant identified her golden ear ring, which was recovered from the accused persons vide recovery memo Ext.PW1B.
12. PW3 Roshan Lal also stated that police had recovered the golden ear ring from the accused persons in his presence and the recovery memo Ext.PW1/B was also prepared. Similarly, PW4 Dr. Chaman Lal, who had medically examined accused Pintu and Rajeev issued MLC Ext.PW4/A and Ext.PW4/B. PW4 stated that all injuries were simple in nature. PW5 HC. Prem Chand stated that on the complaint of the complainant, he registered the FIR Ext.PW1/A. PW6 Mr. Partap Chand stated that he had come to the spot after hearing cries of the complainant and later on found the accused ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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persons lying injured in nallah. He also stated that complainant had told him that she had lost her golden ear ring, which was later .
on recovered from the accused-person. PW7 Bakshi Ram, I.O.
who partly carried out the investigation, prepared the spot map Ext.PW7/A and had taken into possession a plastic slipper and shoes belonging to the accused person lying on the spot of the of occurrence vide recovery Ext.PW7/B. The spot map of recovery Ext.PW7/C was also prepared by him. He also stated that he had rt recorded the statement of witnesses and prepared the challan.
13. PW8 S.I. Satpal stated that the complainant had identified her golden ear ring, which was recovered from the possession of the accused and same was sealed and marked with stamp 'H' vide recovery memo Ext.PW1/B. PW 9 Amar Nath stated that all the villagers found the accused persons lying injured in nallah and later on they were brought to the police station by the villagers, where ear ring belonging to the complainant was recovered. PW-10 Jogi Pal stated that he saw some persons gathered at the spot of the incident. PW-11 Dr Chaman Lal prepared the MLC of the injured-complainant as Ext.PW11/A. ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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14. Conjoint reading of the statements given by the aforesaid prosecution witnesses clearly demonstrates that on 9th .
July, 2001 at about 9 AM, complainant had gone to cut the grass and at about 10:30 AM, when she was returning, accused hit her and forcefully took her golden ear rings. It also stands duly proved on record that on hearing her cries, villagers gathered at the spot.
of It also stands proved on record that both the accused had ran away towards the nallah, where they fell and suffered injuries, rt however, they were nabbed by the villagers while they were lying in injured condition in the nallah itself. It has also come in the statement of the complainant that on hearing her cries, Angat Ram, Madan Lal, Partap Chand had come on the spot. Partap Chand has been examined as PW6, who stated that he was informed by the villagers that accused have ran away towards the forest, thereafter, he along with others went in search of the accused persons and found accused lying injured in nallah. In the cross-examination of the complainant, defense put a suggestion to her that her two ear rings were lost, whereas only one ear ring has been shown in the Court. Careful perusal of the cross-
examination suggests that the complainant admitted the ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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suggestion but fact remains that only one ear ring was recovered by the police in the police station. Since only one ear ring was .
recovered, prosecution rightly showed one ear ring to the complainant, which was actually recovered in the Police Station.
It clearly emerge from the record as well as the statements of the prosecution witnesses that accused were directly brought to the of police station by the villagers and there, they revealed their identity by disclosing their names. As per prosecution story, rt accused persons were searched in the presence of one Smt. Parkasho Devi PW2 and Roshan Lal PW3, in whose presence, one golden ear ring of the complainant was recovered from the co-
accused deceased Rajeev and recovery memo Ext.PW1/B was prepared. Both the aforesaid persons/prosecution witnesses categorically stated that the recovery of the golden ear ring from the accused persons, was effected in their presence in the Police Station. Though, defence with a view to extract something contrary to what they stated in the statements in the examination-
in-chief put a suggestion to these prosecution witnesses that all the proceedings of the case were conducted in the Police Station and seizure memo regarding ear rings was also prepared in the ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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Police Station; these witnesses have admitted aforesaid submission put to them in the cross-examination. But at this stage, it is .
important to notice that it is the own case of the prosecution that villagers brought the accused to the Police Station after nabbing them from nallah and as such, no such adverse inference, if any, could be drawn from the fact that proceedings of the case were of conducted in the police station. When it stand duly proved on record that accused were brought to the police station by rt villagers and recovery of one golden ear ring was also effected in police station in the presence of certain villagers, police had no occasion, whatsoever, but to record the proceedings and similarly, recovery memo, if any, at the police station only. PW8 Satpal Singh, I.O. also admitted that accused were brought by the villagers to the police station itself. Similarly, H.C. Prem Chand, PW5 in his cross-examination denied the suggestion that accused were injured since they were beaten up by the police. He specifically denied the suggestion put to him by the defence in his cross-examination that accused persons were called by the complainant for taking away some sand and later on, they were seen by one Angat Ram and complainant just to save her skin ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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mad a false case against the accused persons. These suggestions have been clearly denied by the I.O. and none of the prosecution .
witness, rather, supported the new story concocted by the defence to falsify the case of prosecution.
15. As far as omission, if any, on the part of the prosecution in not citing Angat Ram as prosecution witness is concerned, this of Court is of the view that no adverse inference, whatsoever, can be drawn of omission, if any, because as per complainant, after rt hearing the cries, many villagers gathered at the spot. It has specifically come in the statement of complainant that after hearing cries, Angat Ram, Madan Lal, Pawan Kumar and Partap Chand etc. had come to the spot. In the present case, prosecution examined Partap Chand, PW6, who as per the complainant-PW1 had come at the spot after hearing cries. This court is of the view that there was no need, whatsoever, for prosecution to cite all the persons named by the complainant as a prosecution witness. Once Partap Chand, who as per the complainant had come on spot after hearing cries was sufficient for prosecution to prove its case beyond reasonable doubt.
Careful reading of the statement given by Partap Chand PW6 ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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clearly suggests that he had come to the spot after hearing cries of the complainant and later on, he along with other villagers .
nabbed the accused in nallah, who were lying there in injured condition. Hence, this Court does not find much force in the contention raised on behalf of the petitioner that both the courts below ought to have drawn adverse inference for omission on the of part of the prosecution to cite Shri Angat Ram as prosecution witness. Perusal of MLC Ext.PW11/A clearly suggests that rt Complainant Anjana Kumari suffered injuries as reported vide MLC, referred above, i.e. "there is a red coloured fresh abrasion 0.5 cm x o.1 cm. situated on the front of lebule of left ear. Clotted blood present over the injury. There is a red coloured abrasion 1cm.x1cm. of size situated on left cheek cm. away from ear.
Clotted blood present on the injury......"
16. Bare perusal of the opinion given by PW11, who examined the complainant, clearly suggests that ear rings of the complainant were forcibly snatched by the accused and in that process, aforesaid injuries were caused to her. Hence, statement of PW1-complainant is duly corroborated by the medical evidence adduced on record by the prosecution and, as such, ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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this Court sees no difficulty in accepting the story put forth by the prosecution, which is convincing, cogent and trustworthy. As has .
been noticed above, this Court had an occasion to traverse through each and every statement recorded by the prosecution and after perusing the same, this Court has no hesitation to conclude that all the prosecution witnesses have been very very of candid and specific while deposing before the learned trial Court and their testimonies appear to be confidence inspiring, rather, rt defence has been not able to shatter their testimonies in cross-
examination. Though, defence by putting some out of text questions in cross-examination, attempted to twist the facts but careful perusal of the cross-examination conducted on the PWs clearly establish that all the prosecution witnesses have stuck to their statements, which they made in their examination-in-chief and defence miserably failed to extract anything contrary which could be fetal to the case of prosecution. Hence, this Court is of the view that prosecution by leading cogent, convincing and turst worthy evidence has been able to prove its case beyond reasonable doubt and this Court sees no illegality and infirmity in ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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the judgments passed by the Court below and same deserves to be upheld.
.
17. In the present case, learned trial court after satisfying itself had framed charges against the accused persons under Sections 392, 323 and 506 read with Section 34 of Indian Penal Code and on the basis of the evidence available on record, it can of safely be concluded that accused persons in furtherance of their common intention voluntarily caused injury to the complainant rt PW1 in order to rob her, which they actually committed by snatching golden ear ring from the ear of the complainant.
Factum of snatching ear ring from the ear of the complainant duly stands corroborated with the medical evidence adduced on record, which clearly suggests that injury was caused to both the ears in the incident by the accused. Hence, this Court sees no force, whatsoever, in the contention put forth on behalf of the petitioner-accused that no case is made out under Section 392 and 323 read with Section 34 of the IPC and same deserves to be rejected outrightly.
18. Another contention, which has been put forth on behalf of the petitioner that only recovery of one ear ring was ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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effected at police station, whereas complainant had stated that her both ear rings were snatched by the accused and as such .
there is major contradiction and court below could not have put much reliance on the version of the prosecution witnesses. In this regard, it is again reiterated that fact remains that one ear ring was recovered in the Police Station in the presence of PWs No. 2 of and 3, who categorically stated in their statements that one golden ear ring, which was later on identified by the complainant, rt was recovered from the pocket of co-accused deceased Rajeev, meaning thereby, the accused had committed robbery of golden ear ring as alleged by the complainant. As far as second gold ear ring is concerned, there is explanation on record rendered by PW1 where she stated that probably the same was lost somewhere during the scuffle when accused tried to snatch ear rings at secluded place.
19. Consequently, in view of the detailed discussion made herein above, this Court sees no illegality/infirmity in the judgments passed by the courts below and, as such, same are upheld and present petition is dismissed being devoid of any merit. The petitioner-accused is directed to surrender himself before the ::: Downloaded on - 15/04/2017 20:47:33 :::HCHP
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learned trial Court forthwith to serve the sentence as awarded by learned Judicial Magistrate, Ist Class, Court No.II, Hamirpur, District .
Hamirpur, HP, vide separate order dated 31.8.2006 Needless to say that order dated 19.2.2007, passed by this Court, whereby sentence imposed by the Court below was suspended, shall stand vacated automatically.
of
July 11, 2016 (Sandeep Sharma),
manjit
rt Judge.
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