Himachal Pradesh High Court
___________________________________________________________________ vs State Of Himachal Pradesh on 19 June, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 28 of 2009
Decided on: June 19, 2017
___________________________________________________________________
Pawan Kumar .........Petitioner
.
Versus
State of Himachal Pradesh ...Respondent
___________________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
___________________________________________________________________
For the petitioner: Mr. Ajay Sharma and Mr. Kishore Pundir,
Advocates.
For the respondent: Mr. M.L. Chauhan, Additional Advocate
General.
___________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal revision filed under Section 397 read with Section 401 CrPC is directed against judgment passed by learned Sessions Judge, Kangra at Dharamshala (HP) on 13.2.2009 in Cr. Appeal No. 10-G/X/2006, affirming the judgment of conviction dated 9.1.2006, recorded by learned Additional Chief Judicial Magistrate, Dehra, District Kangra, in Crl. Case No. 105- II/2001, whereby petitioner alongwith co-accused was held guilty of having committed offence punishable under Sections 451, 323 and 325 read with Section 34 IPC. Petitioner alongwith co-accused was convicted and sentenced to undergo six months' simple imprisonment and fine of ` 1,000/- each for the commission of offence under Section 451 IPC, to undergo one year rigorous Whether reporters of the Local papers are allowed to see the judgment? No. ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP -2- imprisonment and fine of `2,000/- each under Section 325 IPC and further, to undergo three months simple imprisonment and fine of `500/- each under Section 323 IPC. In default of payment of fine, .
both the persons were further sentenced to undergo simple imprisonment, for three months.
2. Briefly stated, facts as emerge from record are that complainant namely Vandana, PW-2, lodged Rapat at Police Station, Dehra, alleging therein that on 23.4.2001, in the morning, at around 8.30 am, cow of accused Pawan Kumar came into her orange orchard at village Damnal, Tehsil Jaswan, District Kangra, Himachal Pradesh, on this, complainant's grandmother Krishni Devi asked accused to take his cow away. However, accused Pawan Kumar came to the complainant's courtyard, and started abusing and thereafter, accused picked up stick lying there, and gave beatings to the complainant's mother and grandmother, PW-3 and PW-4. Co- accused Sushil Kumar assaulted on the face of the complainant with fist blows and in the meantime, some persons of the village also came there. Raj Kumar had witnessed the occurrence, who allegedly rescued the complainant from the accused. As a result of beatings, complainant sustained injuries on her left ear and other parts of the body. On the basis of aforesaid rapat, formal FIR Ext PW-6/C, came to be registered against the accused. After completion of investigation, police presented Challan in the competent Court of ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP -3- law against accused, for having committed offences punishable under Sections 325, 451 and 323 read with Section 34 IPC.
3. Learned trial Court, on being satisfied that prima facie .
case exists against the accused, framed charges against them under Sections 451, 323 and 325 read with Section 34 IPC, to which the accused pleaded not guilty and claimed trial. Learned trial Court, on the basis of evidence adduced on record by the prosecution, held petitioner guilty of having committed offences punishable under Sections 451, 323 and 325 read with Section 34 IPC and convicted and sentenced both the accused as per description given herein above.
4. Being aggrieved and dissatisfied with aforesaid judgment of conviction recorded by learned trial Court, present petitioner preferred an appeal under Section 374 CrPC in the court of learned Sessions Judge, Kangra at Dharamshala, which came to be registered as Cr. Appeal No. 10-G/X/2006. However, the fact remains that the appeal was dismissed, as a result of which, judgment of conviction recorded by learned trial Court came to be upheld. In the aforesaid background, present petitioner, alongwith co accused approached this Court, by way of instant proceedings, seeking their acquittal, after setting aside judgment of conviction recorded by the learned Courts below.
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5. Mr. Ajay Sharma, learned counsel representing the petitioners, while inviting attention of this Court to order dated 29.12.2016, passed by this Court, stated that petitioner No.2 Sushil .
Kumar has expired on 4.10.2016. Perusal of order dated 29.12.2016, suggests that this Court, after having perused death certificate placed on record proceeded to order that revision qua petitioner No.2 stands abated.
6. While referring to the impugned judgments of conviction recorded by courts below, Mr. Sharma contended that same are not sustainable in the eyes of law as the same are not based upon correct appreciation of evidence adduced on record by the respective parties. Mr. Sharma, further contended that bare perusal of impugned judgments suggests that evidence adduced on record by prosecution, has not been read in its right perspective, as a result of which, erroneous findings, that too, to the detriment of the petitioner, have come on record, who is, admittedly, an innocent person. With a view to substantiate his aforesaid argument, he made this Court to travel through evidence led on record by the prosecution to demonstrate that no conviction, if any, could be recorded against accused namely Pawan Kumar, who, as per prosecution story, had given blow of stick on the person of Krishni Devi, grandmother of complainant, Vandana. Mr. Sharma, contended that, if for the sake of arguments, it is presumed that ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP -5- injury was caused on the person of Smt. Krishni Devi with the blow of stick having been given by accused Pawan Kumar, same was not proved in accordance with law. Admittedly, no medical examination .
was got conducted by the investigating agency of Smt. Krishni Devi as well as mother of complainant. He further stated that neither stick with which accused Pawan Kumar gave beatings to Krishni Devi, was recovered nor taken into possession or produced in the court. While concluding his arguments, Mr. Sharma contended that as far as statement of Vandana, complainant is concerned, same could not be used for holding petitioner Pawan Kumar guilty of having committed offence punishable under charged Sections. It has come in the statement of Vandana that she was slapped by Sushil Kumar, as a result of which she suffered injury on her ear. With the aforesaid submissions Mr. Sharma, prayed that present petitioner-accused Pawan Kumar, may be acquitted after setting aside judgment of conviction recorded by learned trial Court and upheld by the appellate court below.
7. Mr. M.L. Chauhan, learned Additional Advocate General, supported the impugned judgment of conviction recorded by learned trial Court and upheld by appellate court below. Mr. Chauhan, while refuting the contentions having been made by Mr. Sharma, contended that there is no illegality or infirmity in the judgments of conviction recorded by both the learned Courts below, rather, ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP -6- perusal of same suggests that same are based upon correct appreciation of evidence adduced on record by the respective parties and as such there is no scope of interference by this Court, .
especially in view of concurrent findings of facts and law recorded by both the learned Courts below. With a view to substantiate his aforesaid submissions, Mr. Chauhan, learned Additional Advocate General, while inviting attention of this Court to the statements PW- 2, PW-3 and PW-4, stated that the prosecution has successfully proved beyond reasonable doubt that injuries were caused on the person of Krishni Devi, Gayatri Devi and complainant Vandana, as such, learned Courts below rightly held petitioner accused guilty of having committed offences punishable under Sections 451, 323 and 325 read with Section 34 IPC.
8. While concluding his arguments, Mr. Chauhan, contended that apart from above, this Court has a very limited jurisdiction to re-appreciate the evidence, while exercising its jurisdiction under Section 397 CrPC. Learned Additional Advocate General, has placed reliance upon the judgment passed by Hon'ble Apex Court in case State of Kerala versus Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been 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 ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP -7- 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 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."
9. I have heard learned counsel representing the parties and have carefully gone through the record made available.
10. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence available on record. But in the present case, where accused has been convicted and sentenced under Sections 279, 337,338 of the Indian Penal Code, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and the same are based upon correct appreciation of evidence available on record, undertook an exercise to critically examine the evidence available on record to reach fair and just decision in the case.
11. 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 case ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP -8- Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, 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 of 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 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 judicial process or illegality of sentence or order."
12. It is undisputed before this Court that petitioner- accused Sushil Kumar, expired on 4.10.2016 and accordingly, proceedings qua him stood abated vide order dated 29.12.2016. After having carefully perused record of the case, especially evidence led on record by the prosecution, this Court finds considerable force in the arguments having been made by Mr. Ajay Sharma, learned ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP -9- counsel representing the petitioner Pawan Kumar, that no reliance, if any, could be placed upon statements of PW-1, PW-2 and PW-3, by the Court below, while concluding that injuries on the persons of .
PW-3 Krishni Devi and PW-4 Gayatri Devi were caused by accused Pawan Kumar, in the absence of any medical evidence, if any, led on record by prosecution. Though, it has come in the statement of aforesaid witnesses that accused Pawan Kumar gave blow of stick on the persons of Smt. Krishni Devi and Gayatri Devi, but, unfortunately, there is no medical evidence on record to support injuries, if any, caused in such incident. In the case in hand, perusal of record suggests that Vandana, complainant was only got medically examined, whereas other victims namely Smt. Krishni Devi and Gayatri Devi were never taken for medical examination by the prosecution.
13. Apart from above, this Court finds that though story of having given beatings to PW-3 and PW-4 with stick by accused was introduced by the prosecution, but, interestingly, neither stick was recovered nor produced in the court, as such this Court has no hesitation to conclude that both the learned Courts below while holding petitioner-accused guilty of having committed offences under aforesaid provisions, swayed by emotion, ignoring material omission on the part of investigating agency, whereby it failed to get PW-3 and PW-4 medically examined after the alleged incident. ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP
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14. As far as entering of courtyard by the petitioner Pawan Kumar, is concerned, no independent witness was associated by the prosecution. There is no explanation worth the name on record why .
no independent witness was associated or cited as prosecution witness to make prosecution story more reliable. It is also not in dispute that alleged incident occurred in the courtyard of complainant's house, which is abutting to the house of accused. After having carefully perused story put forth by the prosecution, it is undisputed that on the day of alleged incident, there was Chaubarkha at the house of accused, and, thus, this Court has every reason to presume that many persons must have gathered in the Chaubarkha in the house of accused. One person, who had an occasion to see the alleged incident i.e. Raj Kumar, unfortunately passed away. But, yet the prosecution could cite another person, namely Baldev as prosecution witness, in support of its story, but, for the reasons best known to the prosecution, he was given up.
15. As far as injuries caused on the person of PW-2 Vandana are concerned, same is of no consequence as of today, because, admittedly, accused, who had allegedly caused injury is no more. It is specifically come in the statement of PW-2 that she was slapped by Sushil, as a result of which, she suffered injury, which was admittedly medically proved. But, since Sushil Kumar has expired, this Court sees no occasion at this stage to examine correctness of ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP
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statement vis-à-vis medial evidence led on record in support of injuries caused on the person of PW-2.
16. Consequently, in view of detailed discussion above, the .
revision petition is allowed. judgment passed by learned Sessions Judge, Kangra at Dharamshala (HP) on 13.2.2009 in Cr. Appeal No. 10-G/X/2006, affirming the judgment of conviction dated 9.1.2006, recorded by learned Additional Chief Judicial Magistrate, Dehra, District Kangra, in Crl. Case No. 105-II/2001 is set aside. Petitioner Pawan Kumar is acquitted of the offences punishable under Sections 451, 323 and 325 read with Section 34 IPC. Bail bonds furnished by him are discharged. Fine amount, if any deposited by the petitioner Pawan Kumar is ordered to be refunded to him. Pending applications, if any, are disposed of.
(Sandeep Sharma) Judge June 19, 2017 (Vikrant) ::: Downloaded on - 21/06/2017 23:59:01 :::HCHP