Himachal Pradesh High Court
Yadvinder Singh And Others vs State Of Himachal Pradesh on 5 September, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Criminal Revision No. 132 of 2011.
Judgment reserved on: 28.08.2017.
Date of decision: 5th September, 2017.
Yadvinder Singh and others .....Petitioner s.
Versus
State of Himachal Pradesh ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No For the Petitioners : Mr.G.R.Palsra and Ms.Leena Guleria, Advocates.
For the Respondent : Ms.Meenakshi Sharma, Additional Advocate General with Mr.Neeraj K.Sharma, Deputy Advocate General.
Tarlok Singh Chauhan, Judge.
This criminal revision petition has been filed against the judgment passed by the learned Sessions Judge, Mandi, on 25.03.2011 whereby he partly affirmed the judgment passed by the learned Judicial Magistrate 1st Class, Court No.3, Mandi, on 21.09.2007/11.10.2007.
2. The petitioners were charged and convicted by the learned Magistrate for having committed offence punishable under Sections 147, 148, 323, 341, 506 read with Section 149 of IPC in the following manner:-
"Hence all the convicts are sentenced to undergo simple imprisonment for three months each and to pay a fine of Rs.200/- each (Two hundred only) and in case of default of payment of fine to further undergo simple imprisonment for 15 days each for committing offence u/s 147 of IPC. The convicts are also sentenced to undergo simple imprisonment for 15 days each and to pay a fine of Rs.200/- each (Two hundred only) and in case of default of payment of fine to Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 2 further undergo simple imprisonment for 15 days each for committing offence punishable u/s 341 read with Section 149 IPC. The convicts .
are also sentenced to undergo simple imprisonment for a period of two months each and to pay a fine of Rs.200/- each (Two hundred only) and in case of default of payment of fine to further undergo simple imprisonment for 15 days each for committing offence punishable under section 323 read with section 149 IPC and convicts are also sentenced to undergo simple imprisonment for six months each and to pay a fine of Rs.200/- each (Two hundred only) and in case of default of payment of fine to further undergo simple imprisonment for 15 days each for committing offence punishable u/s 506 read with section 149 IPC. However, all the sentences shall run concurrently. The fine amount if realized is ordered to be paid to the complainant Khime Ram as compensation."
3. On appeal being carried to the Court of learned Sessions Judge, the same came to be partly accepted whereby the substantive sentence of imprisonment was set aside while the fine as imposed by the learned trial Court was upheld.
4. Aggrieved by the judgments rendered by the learned Courts below, the petitioners have filed the instant revision petition on the ground that the prosecution had failed to prove its case beyond all reasonable doubt and, therefore, the petitioners ought to have been acquitted.
I have heard the learned counsel for the parties and gone through the records of the case.
5. It would be noticed that the case of the prosecution precisely was that on 05.10.2003, the victim Khime Ram along with Kashmir Singh and Hem Raj went to his house at Jalah from Takoli in his vehicle. At about 12.45 p.m., when they alighted and were going on foot to their respective houses, then the petitioners met them on the way and wrongfully restrained Khime Ram, petitioner No.1 Yadwinder started giving him 'danda' blows while the remaining petitioners started kicking, punching and hurling stones ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 3 on him. Khime Ram raised alarm and on hearing this, Kashmir Singh, Hem Raj, Amar Singh and Devi Singh rescued him from the clutches of the .
petitioners. Petitioner No.1 while leaving the place threatened to kill the victim. The victim is alleged to have suffered injuries on his head, arms, legs and other parts of the body. The Police reached the spot from receiving a telephonic call from an unknown person and recorded the statement of Khime Ram (PW-1) and thereafter rukka was sent to the police station on the basis of which, FIR came to be lodged. After recording the statements of witnesses and completion of investigation, challan against the petitioners was presented before the Court. The petitioners appeared and were supplied the copies of challan under Section 207 Cr.P.C. and thereafter notice of accusation was put to them for offences under Sections 341, 323, 147, 148, 506 read with Section 149 of IPC to which they pleaded not guilty.
6. In order to prove its case, the prosecution examined 8 witnesses including the victim. The victim appeared as PW-1 and stated that on 05.10.2003 at about 12.30 p.m., he along with Kashmir Singh and Hem Raj was going to his house from the road. The petitioners met them on the way and obstructed his passage. Petitioner No.1 who was carrying a 'danda' in his hands gave 'danda' blow to him while the remaining petitioners also gave beatings to him. It is after raising hue and cry raised by the victim that Kashmir Singh, Hem Raj and Amar Singh rescued him from the clutches of the petitioners. Petitioner No.1 while leaving the place of occurrence threatened to kill him. His statement under Section 154 Cr.P.C.
to the police is Ex.PA. He is alleged to have identified 'danda' Ex.P-1 and his shirt Ex.P-2 in the Court. In cross-examination, the victim has categorically stated that he was having no enmity with the petitioners, rather they are relatives and their houses are situated adjacent to each other. He also ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 4 denied that he was having boundary dispute with the petitioners and as such had got a false case registered against them.
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7. Shri Hem Raj, who is alleged to be the witness of the incident appeared as PW-2 and deposed that in the month of October, 2003, he along with Kashmir Singh had gone to Jalah from Takoli in the vehicle of victim. The petitioners did not meet them on their way to the temple, rather they were fighting with each other in the fields where the petitioners had caught held of the hair of Yadvinder (petitioner No.1). This witness was declared hostile and thereafter cross-examined by the prosecution. In his cross-examination by the prosecution, he admitted that Khime Ram had sustained injuries as a result of beatings given by the petitioners, however, he denied that petitioner No.1 was carrying a 'danda' in his hands and had given 'danda' blows, whereas, the remaining petitioners had kicked and punched the victim.
8. In his cross-examination by the defence, he admitted that all the petitioners were present in their houses at the relevant ti me and victim was also present in his house. He further deposed that it was the victim, who came from his house to fight with the petitioners. The victim abused the petitioners, but the petitioners did not say anything. He categorically admitted that the victim was having good relations with the police.
9. Shri Devi Singh, who is alleged to be the another eye-witness has been examined as PW-3 and has deposed that last year he had gone to village Jalah to lay a lintel of the temple. At about 12 noon, he saw the victim and petitioner Yadvinder fighting with each other, but did not state as to who gave beatings to whom. This witness was declared hostile and cross-examined at length by the prosecution. In his cross-examination, he admitted that police had recorded his statement on 15.10.2003. He ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 5 admitted the portions 'A to A', 'B to B', 'C to C' and 'E to E' of his previous statement Mark 'X', later on exhibited as PW6/C, having been made to the .
police. However, he disputed portion 'D to D' of his statement. He also admitted that shirt Ex.P-2 was taken into possession vide fard Ex.PC in his presence.
10. In his cross-examination by the defence, he categorically stated that while laying the slab in the temple of 'Devta', there were about 60-70 persons, who were present at that time. It was the victim, who stopped petitioner No.1 and the place of incident was 400 yards away where the lintel was being laid. He denied the suggestion that he was deposing falsely on account of his being in the employment of the victim.
11. Shri Amar Singh has appeared as PW-4 and claims to be one of the eye witnesses and has deposed that on 05.10.2003, he had gone to lay a lintel at Village Jalah where victim and petitioner No.1 had a fight. The petitioners had given beatings to Khime Ram with a 'danda' and threatened to kill him. Khime Ram, the victim, had produced one shirt in his presence which was sealed in a separate parcel and was taken into possession vide fard Ex.PC. In his cross-examination, this witness admitted that they were laying a lintel at a distance of 400-500 yards from the place of occurrence.
He admitted that he did not see the occurrence as he along with others was laying the lintel. He has categorically stated that no fight had taken place in his presence nor he is a witness to the same as he was laying the slab. He further stated that Devi Singh (PW-3) was not working with them on the relevant day and had come with Khime Ram in his vehicle. This witness admitted that he was working with the victim Khime Ram.
12. Doctor Satya Vrat has been examined as PW-5 to prove the injuries sustained by the victim and has deposed that he had examined the ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 6 victim on 05.10.2003, who was found to have sustained as many as four injuries on his person which were opined simple in nature caused with blunt .
weapon, vide MLC Ex.PW-5/A. He has further stated that these injuries were possible by blow of 'danda' Ex.P-1 which was shown to him in the Court and also by fist and stone blows. In the cross-examination, he, however, stated that injuries mentioned in MLC Ex.PW-5/A were possible by fall on rough and stony surface.
13. The Investigating Officer, Head constable Gandhi Ram, has appeared as PW-6 and stated the manner in which he had conducted the investigation. In cross-examination by defence, he stated that he had not sent shirt Ex.P-2 for chemical test. However, he denied the suggestion that he had not visited the spot and had recorded the statements of the witnesses of his own and registered a false case against the petitioners.
14. HHC Malik Chand (PW-7) is a witness to the recovery of 'danda' Ex.P-1 which was taken into possession by the Investigating Officer vide fard Ex.PB. In cross-examination, this witness admitted that 'danda' like Ex.P-1 are commonly found, but he denied that Ex.P-1 was not produced in his presence.
15. Head constable Raj Kumar was examined as PW-8, who stated that from the year 2003 to 2006, he remained posted as M.C. in Police Station, Aut. On 05.10.2003, a rukka was recei ved through constable Chandermani on the basis of which FIR Ex.PW-8/A was entered in his handwriting and endorsement Ex.PW-8/B is also in his handwriting and under his signatures and even Rapat No.13 Ex.PW-8/C is correct as per original. In cross examination, this witness admitted that rapat Ex.PW-8/C had not been written by him. He denied the suggestion that the contents ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 7 entered in the rukka and FIR were prepared in connivance with the complainant.
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16. This entirety is the evidence led by the prosecuti on.
17. After recording the aforesaid statements, the statements of petitioners under Section 313 Cr.P.C. were recorded wherein they denied the prosecution's allegations and pleaded innocence. They, however, did not lead any evidence in their defence.
18. As observed above, both the Courts below have convicted the petitioners and the learned appellate Court has partly modified the judgment rendered by the learned trial Magistrate by setting aside the substantive sentence of imprisonment while the fine imposed by the learned Magistrate has been ordered to be upheld.
19. It is vehemently argued by Shri G.R.Palsra, Advocate, assisted by Ms.Leena Guleria, Advocate that the judgments of the learned Courts below are both against law and facts on record.
20. Before proceeding to embark upon the relative merits of the case, it would be necessary to note the scope and power of this Court while dealing with such type of criminal revision petitions.
21. In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon'ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
22. In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon'ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 8 judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by .
tradition methodolised by analogy and discipline by system".
23. In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon'ble Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".
24. In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon'ble Supreme Court in the following terms:
"It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope."
25. In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon'ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.
26. In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon'ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to reappreciate the evidence.
::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 927. In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon'ble Supreme Court held as under:
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"It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint."
28. In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon'ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when "there exists a manifest illegality in the order or there is a grave miscarriage of justice".
29. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon'ble Supreme Court held as under:
"In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
30. In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon'ble Supreme Court held as under:
"The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 10 of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a .
non-speaking judgment."
31. In Amit Kapoor vs. Ramesh Chander and another (2012) 9 SCC 460, while dealing with the scope of revisional jurisdiction of the High Court, it was observed by the Hon'ble Supreme Court as under:
"13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie.
Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.
14. Right from the case of State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [(1982) 1 SCC 561], which was reiterated with approval in the case of State of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp. (1) SCC 335], the courts have stated the principle that: (Swapan Kumar case, SCC p.577, para 21) "21..... if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received."
It is further stated that (Swapan Kumar case, SCC p. 597, para 65) "65.....The legal position appears to be that if an offence is disclosed, the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to have been committed; if, however, the materials do not disclose an offence, no investigation should normally be permitted."
Whether an offence has been disclosed or not, must necessarily depend on the facts and circumstances of each case. If on consideration of the relevant materials, the Court is satisfied that an offence is disclosed, it will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed in order to collect materials for proving the offence.
15. In Bhajan Lal's case (supra), the Court also stated that though it may not be possible to lay down any precise, clearly defined, sufficiently ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 11 channelized and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 .
of the Code for quashing of an FIR should be exercised, there are circumstances where the Court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; where there is an expressed legal bar engrafted in any of the provisions of the Code; and where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice.
16 The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circum scribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited.
17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 ::: Downloaded on - 06/09/2017 23:26:07 :::HCHP 12 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the .
stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.
27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case ::: Downloaded on - 06/09/2017 23:26:08 :::HCHP 13 would end in conviction or not at the stage of framing of charge or quashing of charge.
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27.4) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10) It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that ::: Downloaded on - 06/09/2017 23:26:08 :::HCHP 14 there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
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27.13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. {Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v. s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [AIR 2005 SC 9]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v. Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.
27.16.) These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an ::: Downloaded on - 06/09/2017 23:26:08 :::HCHP 15 offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two .
ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."
32. The main plank of argument of the petitioners is with regard to the so-called contradictions, inconsistencies, embellishments and improvements in the prosecution case. It is vehemently argued that the prosecution story has been substantially changed because while appearing as PW-1, the victim himself stated to the police that he was returning to his house along with Kashmir Singh and Hem Raj and was rescued by the aforesaid persons along with Amar Singh and Devi Singh, who were also accompanying him. On the other hand, PW-2 Hem Raj has stated that the petitioners were quarrelling in the field and petitioners 2 to 5 were pulling the hair of petitioner No.1. On the other hand, PW-3 Devi Singh stated that victim Khime Ram and petitioner No.1 Yadvinder were quarrelling with each other, whereas, PW-4 has given entirely a different version with respect to the alleged incident and, therefore, no credence to such statement can be lent as admittedly he is working with the victim.
33. It is settled position of law that if the evidence of the victim is relied upon, the same can be acted upon for conviction. The conviction can be recorded solely on the basis of such evidence and there is no requirement to corroborate the evidence of the victim from any independent source, if such evidence of the victim is beyond material defect and free of substantial contradictions and infirmities. It is equally settled that the evidence of the injured witnesses should be relied upon unless there are grounds for rejection of evidence on the basis of major contradictions and discrepancies therein. (Refer: Jarnail Singh and others vs. State of Punjab (2009) 9 SCC 719; Balraje @ Trimbak vs. State of Maharashtra ::: Downloaded on - 06/09/2017 23:26:08 :::HCHP 16 (2010) 6 SCC 673 and Abdul Sayeed vs. State of Madhya Pradesh (2010) 10 SCC 259).
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34. In all criminal cases, nor mal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and the other witnesses also make material improvements while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.
The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
35. Exaggerations per se do not render the evidence brittle. But, it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited (Refer:
State, represented by Inspector of Police vs. Saravanan & another AIR 2009 SC 152; Arumugam vs. State AIR 2009 SC 331; Mahendra Pratap Singh vs. State of Uttar Pradesh (2009) 11 SCC 334 and Dr. Sunil ::: Downloaded on - 06/09/2017 23:26:08 :::HCHP 17 Kumar Sambhudayal Gupta & Ors. vs. State of Maharashtra (2010) 13 SCC 657.
.
36. Judged in light of the aforesaid exposition of law, it would be noticed that even though victim does state that he was obstructed and thereafter beaten up by the petitioners, but I really do not find any foundation for such allegations. After all, why would anyone simply block the path of another person and thereafter give beatings, more particularly, when the victim himself has categorically and unequivocally stated that there is no enmity between the parties. That apart, it has come on record that there were 60-70 persons laying the slab, then why only interested witnesses i.e. workers of the victim have alone been examined. In addition to this, even these witnesses have not fully supported the case of the prosecution and have rather turned hostile which does show that even though these witnesses were carefully picked up to depose against the petitioners, yet they were answerable to their conscience and, therefore, did not fully support the case of the prosecution constraining the prosecution to declare them to be hostile.
37. Adverting to the weapon of offence which in this case happens to be a stick i.e. 'danda'. The victim while appearing as PW-1 has stated that he had produced the 'danda' Ex.P-1 which was alleged to have been taken into possession by the police. Whereas, the Investigating Officer PW-7 Head constable Gandhi Ram has clearly stated in his examination in chief that on 02.11.2003 'danda' Ex.P-1 was produced by petitioner No.1 Yadvinder before him which was taken into possession vide fard Ex.PB
38. That apart, it would be noticed that the incident is alleged to have taken place on 05.10.2003 and even the police had reached the spot on the said date, but the 'danda' is alleged to have been recovered only after four weeks on 02.11.2003 which does create a serious doubt with respect to the ::: Downloaded on - 06/09/2017 23:26:08 :::HCHP 18 prosecution story. It would further be noticed that PW-2 Hem Raj had stated that on the day of occurrence, victim was at his house and he went to .
the petitioners' house in order to pick up quarrel where he abused the petitioners. Similarly, even PW-3 Devi Singh had stated that it was the victim Khime Ram, who had restrained petitioner No.1 Yadvinder and thereafter picked up a quarrel with him, whereas, PW-4 Amar Singh, who claimed to be the eye-witness has stated that he had not seen any quarrel between the victim and the petitioners. In addition thereto, in the cross-
examinations, all the witnesses have stated that the victim had close links with the police.
39. That apart, it would be noticed that specific case of the prosecution was that a blood stained shirt Ex.P-2 worn by the victim at the time of the incident was recovered by the prosecution. But, then why the same was not sent for chemical examination is not forthcoming, constraining this Court to draw an adverse inference against the prosecution.
40. Therefore, in the given circumstances, the evidence of the alleged eye-witnesses to the incident in question being fraught with contradictions, omissions and improvements is not worthy of acceptance and it can safely be held that the prosecution has failed to prove its case beyond all reasonable doubt. Hence, the petitioners are entitled to be acquitted of the charges levelled against them.
41. In view of the aforesaid discussion, I find merit in this revision petition and accordingly the same is allowed. The judgments of conviction and sentence as passed by the learned Courts below are set aside and the petitioners are acquitted of the charges levelled against them. Fine amount, ::: Downloaded on - 06/09/2017 23:26:08 :::HCHP 19 if already deposited, be refunded to the petitioners. Bail bonds, if any, furnished by the petitioners are discharged.
.
5th September, 2017. (Tarlok Singh Chauhan),
(krt) Judge.
r to
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