Himachal Pradesh High Court
Balak Ram @ Bala Ram vs State Of Himachal Pradesh on 15 December, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. : 175 of 2011.
Reserved on: 08.12.2016.
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Decided on: 15.12.2016.
Balak Ram @ Bala Ram ....Petitioner.
Versus
State of Himachal Pradesh ... Respondent.
Coram
of
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No For the petitioner : Mr. B.S. Thakur, Advocate.
rt For the respondent : Mr. Vikram Thakur Deputy Advocate General.
Ajay Mohan Goel, Judge By way this revision petition, petitioner has challenged the judgment passed by the Court of learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, in Criminal Appeal No. 51 of 2007, dated 10.06.2011, vide which learned Appellate Court, while dismissing the appeal filed by the present petitioner, affirmed the judgment of conviction and sentence imposed upon the present petitioner by the Court of learned Sub Divisional Judicial Magistrate, Rampur Bushahr, in Case No. 16-2 of 2004/61-2 of 2005, dated 02.11.2007, whereby learned trial 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 2Court while convicting the present petitioner for commission of offences punishable under Sections 377 and 451 of Indian Penal Code (hereinafter referred to as 'IPC' ) sentenced him to .
undergo rigorous imprisonment for one year and to pay a fine of ` 3,000/- for commission of offence punishable under Section 377 of IPC and in default of payment of fine, to undergo rigorous imprisonment for three months and further of sentenced the petitioner to undergo simple imprisonment for a period of six months and to pay a fine of ` 1,000/- for rt commission of offence punishable under Section 451 of IPC and in default of payment of fine, to undergo simple imprisonment for a period of one month.
2. The case of the prosecution was that wife of complainant Brij Lal was working as Anganwari Worker and was residing at her parental house. Complainant had gone to his in-laws house to meet his wife for the last 15-16 days. His father-in-law had constructed one storeyed house and on the backside of the house, they used to tether their cow. On 03.09.2003, at around 3:00 p.m. complainant was told by his wife that accused had gone inside the cowshed and when he (complainant) went to the spot, he found accused performing unnatural sex with the cow. Further as per the prosecution, complainant immediately shut the door and asked his father-
::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 3in-law to lock the same from outside and in the meanwhile, Hans Raj, Sain Ram, Saina Devi and Pradhan Sunder Mani came on the spot. Matter was reported to the police .
telephonically. On the basis of statement of the complainant recorded under Section 154 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) Ext. PW1/A, FIR Ext. PW9/A was registered against the accused at Police of Station Rampur. During the course of investigation, site plan of the place of occurrence was prepared, rapat rojnamcha was rt obtained, lock and key were also taken into possession and the cow was also taken into police custody vide memo Ext.
PW9/D. Cow was got medically examined and medical report was obtained from the Veterinary Doctor. Accused was also got medically examined and his MLC was also obtained. After the completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, he was accordingly charged for commission of offences punishable under Sections 451 and 377 of IPC, to which he pleaded not guilty and claimed trial.
3. Prosecution examined as many as nine witnesses to prove its case. On the basis of evidence led by the prosecution both ocular as well as documentary, learned trial Court held that in the case in hand accused was caught red ::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 4 handed while committing unnatural offence and there was sufficient material against the accused. On these bases, learned trial Court convicted the accused for commission of .
offences punishable under Sections 451 and 377 of IPC.
4. In appeal, judgment of conviction so passed by the learned trial Court and sentence so imposed upon the accused were upheld by the learned Appellate Court. Learned of Appellate Court found the testimony of complainant PW1 and his wife PW2 Maina Devi to be trustworthy and reliable who rt had categorically stated to have seen the accused doing carnal intercourse with the cow. Learned Appellate Court held that accused could not explain as to why he had entered the cowshed without informing the complainant and his wife.
Learned Appellate Court also held that the factum of accused being falsely implicated stood ruled out from the testimony of PW9 Devi Singh. It was further held by the learned Appellate Court that from the evidence on record it stood duly proved that accused had committed house trespass by entering into the cowshed of the complainant in order to commit carnal intercourse with the cow and had committed carnal intercourse with the cow on the relevant date, time and place.
On these bases, it was held by the learned Appellate Court that learned trial Court after proper appreciation of evidence ::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 5 on record had rightly convicted the accused for offences punishable under Sections 451 and 377 of IPC and there was no error in the findings so returned by the learned trial Court.
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5. The findings so returned by the learned Appellate Court are under challenge by way of this revision petition.
6. Mr. B.S. Thakur, learned counsel for the petitioner has argued that the judgments of conviction passed by both of the learned Courts below against the petitioner are not sustainable in the eyes of law as both the learned Courts rt below erred in not appreciating that the prosecution was not been able to prove its case against the accused beyond reasonable doubt. Mr. Thakur further argued that the findings so returned by both the learned Court below against the petitioner were perverse and not borne out from the records of the case. According to Mr. Thakur both the learned Courts below erred in not appreciating that the prosecution witnesses neither proved nor corroborated the case of the prosecution and further their testimonies even otherwise were not reliable as they were interested witnesses being family members and close relatives. Mr. Thakur further argued that there was no medical evidence to prove the guilt of the accused and both the learned Courts below had erred in not appreciating that the petitioner was falsely implicated ::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 6 in the case by the complainant on account of his enmity with the petitioner. On these bases, it was argued by Mr. Thakur that the judgments so passed by both the learned Courts .
below against the accused are liable to set aside and the accused be acquitted of the offences for which he had been convicted by the learned Court below.
7. Mr. Vikram Thakur, learned Deputy Advocate of General, on the other hand, argued that there was neither any perversity with the judgments passed by both the learned rt Courts below against the petitioner not it could be said that findings so returned by both the learned Courts below were not borne out from the records of the case. Mr. Thakur argued that the case of the prosecution was duly proved and corroborated by the prosecution witnesses, whose credibility could not be impeached in cross examination by the defence.
Mr. Thakur further argued that there were eye witnesses to the occurrence whose testimony nailed the guilt of the accused. Mr. Thakur also argued that the factum of alleged enmity had been discussed by both the learned Courts below and the conclusion arrived at by the learned Courts below to the effect that petitioner in fact was not falsely implicated by the complainant on account of enmity was duly borne out from the records of the case. Mr. Thakur further argued that ::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 7 even otherwise in view of the fact that both the learned Courts below have returned the judgment of conviction against the petitioner/convict, the same did not warrant any .
interference from this Court especially in exercise of its revisional jurisdiction. On these grounds, it was urged by Mr. Vikram Thakur that there was no merit in the revision petition and the same be dismissed.
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8. I have heard the learned counsel for the petitioner as well as learned Deputy Advocate General and also gone rt through the records of the case as well as the judgments passed by both the Courts below.
9. A perusal of the record demonstrates that PW1 and PW3 are the eyewitnesses to the offence. PW3 Maina Devi has stated in her testimony that on 03.09.2003 between 2:30- 3:00 p.m. when she was performing her household chores, her sister-in-law Kamla Devi informed her that accused had entered their cowshed. She further deposed that she brought this fact into the notice of her husband and both of them went to the cowshed and found the door of the cowshed slightly open. She further deposed that from there they saw accused having sexual intercourse with the cow.
10. Her husband complainant Brij Mohan, who entered the witness box as PW1 has deposed that on ::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 8 03.09.2003, his sister Kamla Devi informed his wife that the accused had entered their cowshed and when he and his wife went to the cowshed, they found the door of cowshed partially .
closed and partially opened and from therein, they saw accused having sexual intercourse with the cow. PW1 also deposed that after this, they closed the door of the cowshed from outside and called his father-in-law who locked the door of and informed the police, who took the accused in custody from the cowshed after opening the lock.
11. rt Sister of the complainant Kamla Devi entered the witness box as PW2 and deposed that on 03.09.2003, at about 2:30-3:00 p.m. she saw Balak Ram entering their cowshed and she brought this fact into the notice of her sister-in-law.
12. Shri Sunder Singh who entered the witness box as PW4 corroborated the case of the prosecution by stating that on 03.09.2003, police unlocked the door of the cattle-shed in his presence as well as in the presence of other persons and the accused was taken out from the cattle-shed by the police.
13. It is on the basis of statements of these witnesses coupled with the testimony of other prosecution witnesses that both the learned Courts below held the accused guilty of offences for which he was charged. The defence of the ::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 9 accused that he has been falsely implicated on account of his enmity with the complainant could not be substantiated by him. The contention of the learned counsel for the petitioner .
that PWs 1 to 3 and PW5 were interested witnesses being family members and close relatives and hence their testimony could not be made basis for convicting the accused also does not have any merit. Though all these witnesses are family of members and close relative but their testimonies inspire confidence, are truthful and trustworthy. All these witnesses rt were subjected to lengthy cross examination by the defence but their credibility could not be impeached. The alleged element of enmity introduced by the accused stands negated on the basis of record produced before the learned Courts below by the prosecution, as is also evident from the judgment passed by the learned Courts below. Therefore, it cannot be said that the learned Courts below have either misread or mis-appreciated the testimony of the prosecution witnesses or the finding of conviction returned by both the learned Courts below is not borne out from the records of the case.
14. As far as medical evidence being relied upon by the petitioner to contend that the medical evidence does not support the case of the prosecution is concerned, I am afraid ::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 10 that a perusal of the statement of Veterinary Doctor as well as Ext. PW6/A does not in any way absolve the petitioner of the crime for which he stands convicted. Besides this, when the .
offence of the petitioner has been duly proved by PW1 and corroborated by PW3, who are eye witnesses to the incident, then the petitioner, in my considered view, cannot even otherwise take the benefit of medical evidence in the mode of and manner in which he wants to take benefit of the same.
The statement of Dr. Tara Chauhan who entered the witness rt box as PW6 and Ext. PW6/A as well as MLC Ext. PW8/A nowhere even remotely suggested that petitioner had not committed any such offence with which he was charged. In addition to this, the petitioner has not been able to satisfactorily explain as to what was he doing in the cattle-
shed of father-in-law of the complainant because he has not been able to shatter the case of the prosecution that he was not apprehended from inside the cattle-shed of father-in-law of the complainant on the fateful day by the police. Therefore, in view of the above, it cannot be said that the finding of conviction returned against the accused by both the learned Courts below is perverse and not borne out from the records of the case.
::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 1115. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision .
cannot in absence of error on a point of law, re-appreciate evidence and reverse a finding of law.
16. It has been further held by the Hon'ble Supreme Court in Janta Dal Vs. H.S. Chowdhury & others, 1992 (4) of SCC 305 that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of rt paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals.
17. Thus it can be safely inferred that this Court has to exercise its revisional powers sparingly. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case.
::: Downloaded on - 15/04/2017 21:45:03 :::HCHP 1218. In view of the above discussion, I am of the considered view there is neither any perversity nor any infirmity with the judgments passed by the learned Courts .
below. Therefore, there is no merit in the revision petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, also stands disposed of.
of (Ajay Mohan Goel) Judge 15th December, 2016.
(narender) rt ::: Downloaded on - 15/04/2017 21:45:03 :::HCHP