Himachal Pradesh High Court
Amrik Singh vs The State Of Himachal Pradesh on 15 June, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. : 85 of 2011.
Reserved on: 25.05.2017
Decided on: 14.06.2017.
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Amrik Singh ....Petitioner.
Versus
The State of Himachal Pradesh ... Respondent.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No For the petitioner : Mr. N.S. Chandel, Advocate.
For the respondent : Mr. Vikram Thakur Deputy Advocate General.
Ajay Mohan Goel, Judge By way this revision petition, accused/petitioner has challenged the judgment passed by the Court of learned Sessions Judge, Kangra, in Criminal Appeal No. 31/I/X/2007, dated 08.04.2011, vide which learned Appellate Court, while dismissing the appeal so filed by the present petitioner, upheld the judgment of conviction and sentence imposed upon the present petitioner by the Court of learned Judicial Magistrate 1st Class, Indora, District Kangra, in Criminal Case No. 948-III/99/04, dated 11.09.2007, whereby learned trial Court had convicted the present petitioner for commission of offences punishable under 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 2Section 61(1) (iii) of the Punjab Excise Act, as applicable to the State of H.P. and sentenced him to undergo simple imprisonment for a period of three months alongwith fine of .
` 3,000/- and in default of payment of fine, accused/ petitioner was ordered to further undergo simple imprisonment for a period of one month.
2. Case of the prosecution was that on 10.11.1997, at about 4:00 p.m., when police party headed by ASI Om Prakash was on patrolling duty at Bakradwan, they saw accused Amrik carrying a green plastic Can of five litres capacity, who was approaching the metalled road. As soon as accused saw the police party, he turned and tried to flee. On apprehension, he was nabbed by the police party and when the plastic Can being carried by the accused was checked, it was found full of illicit liquor. After removing a nip as sample from the plastic Can, the same was sealed with seal impression 'OP' and the same was seized vide memo Ext.
PW1/A. Rukka was sent to police station, on the basis of which, FIR Ext. P-A was registered. The Investigating Officer prepared the site plan. During the course of investigation, sample of the illicit liquor so recovered from the accused was sent to CTL Kandaghat and report whereof Ext. P-X was obtained which proved that sample was containing 40.4% ::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 3 proof alcoholic strength. Statements of witnesses under Section 161 of The Code of Criminal Procedure (for short 'Cr.P.C) were also recorded during the course of investigation.
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3. After 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 offence punishable under Section 61(1) (iii) of the Punjab Excise Act, as applicable to the State of H.P., to which he pleaded not guilty and claimed trial.
4. On the basis of material produced on record by the prosecution, learned trial Court held that the prosecution had duly proved on record that accused was nabbed in conscious and exclusive possession of five litres of illicit liquor and accordingly, it convicted the accused for commission of offence punishable under Section 61(1) (iii) of the Punjab Excise Act, as applicable to the State of H.P. and sentenced him to undergo simple imprisonment for a period of three months as well as fine of ` 3,000/-. While arriving at the said conclusion, it was held by learned trial Court that prosecution evidence demonstrated that case property was not produced in the Court but the prosecution had justified non-production of the same by demonstrating that the same stood destroyed by a mob on 30.07.1998, qua which FIR No. ::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 4 221 of 1998 was lodged against the accused therein. Learned trial Court held that said fact was not disputed by the accused as PW3 Kirpal Singh, who had deposed in the Court .
that the case property was destroyed in a mob attack at the police station, was not cross examined by the defence on this aspect of the matter. It was further held by learned trial Court that the contents of the Can stood proved, which demonstrated the contents of the sample and this also was not disputed by the accused as there was no cross examination of PW2 by the defence on this count. Learned trial Court also held that simply because no independent witness was associated by the police at the time of seizure of illicit liquor from the accused, could not vitiate the trial as the said sole fact could not undermine the entire prosecution case which remained un-controverted and un-contradicted.
On these bases, learned trial Court convicted the accused for the charged offence.
4. In appeal, learned Appellate Court while upholding the judgment so passed by learned trial Court held that learned counsel for the accused could not point out any material contradiction which went to the root of the case and prosecution had proved the case against the accused beyond reasonable doubt which was evident from the testimony of ::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 5 PW1 to PW4 as well as documentary evidence which was exhibited by the prosecution during the course of trial. It was held by learned Appellate Court that prosecution had proved .
beyond reasonable doubt that accused had committed the offence punishable under Section 61(1) (iii) of the Punjab Excise Act, as applicable to the State of H.P. Learned Appellate Court also held that eyewitnesses PW1 Jainshi Ram and PW4 Om Prakash had stated in positive manner that five litres of illicit liquor was found in conscious and exclusive possession of the accused vide seizure memo Ext. PW1/A. On these bases, learned Appellate Court dismissed the appeal so filed by the accused.
5. Feeling aggrieved, the petitioner/accused has filed the present revision petition.
6. Mr. N.S. Chandel, learned counsel for the petitioner argued that there was perversity with the findings returned by learned Courts below convicting the accused as learned Courts below erred in not appreciating that prosecution had not been able to prove its case against the accused beyond reasonable doubt. Mr. Chandel argued that the judgments passed by both the learned Courts below even otherwise were not sustainable in the eyes of law as both the learned Courts below erred in not appreciating that ::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 6 prosecution had not been able to prove that the case property in fact was burnt by a mob as was the case put forth by the prosecution and alleged nip which was sent to CTL .
Kandaghat for chemical analysis was not produced in the Court by the prosecution. It was further contended by Mr. Chandel that there was no connecting evidence which could link the petitioner with the commission of alleged offence. On these points, it was urged by Mr. Chandel that judgments of conviction passed against the accused by both the learned Courts below were perverse and liable to be set aside.
7. On the other hand, learned Deputy Advocate General has submitted that there was no merit in the present petition as there was neither any perversity nor any infirmity with the judgments passed by the learned Courts below. It was urged by learned Deputy Advocate General that the findings returned by both the learned Courts below were duly borne out from the records of the case. Learned Deputy Advocate General also urged that even otherwise in exercise of its revisional jurisdiction, it was not open for this Court to re-appreciate the evidence which in fact the petitioner wanted this Court to do. On these bases, it was submitted by learned Deputy Advocate General that as there was no merit in the present revision petition, the same be dismissed.
::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 78. I have heard the learned counsel for the petitioner as well as learned Deputy Advocate General and also gone through the records of the case as well as the judgments .
passed by both the learned Courts below.
9. I will deal with all the three submissions made by Mr. Chandel, learned counsel for the petitioner independently.
a) According to Mr. Chandel there was perversity in the judgments passed by both the learned Courts below as both the learned Courts below erred in not appreciating that there was no material on record from which it could be inferred that the case property which was allegedly recovered by the police from the accused was destroyed by a mob. Mr. Chandel submitted that neither any FIR in this regard was placed on record by the prosecution, nor any daily diary rapat was placed on record, from which it could be inferred that the police station in question was attacked by the mob and in the said attack, the case property was destroyed. A perusal of the record demonstrates that the factum of the police station concerned having been attacked by a mob has been proved in the Court by PW3 Kirpal Singh. A perusal of his deposition in the Court demonstrates that he inter alia deposed in the Court that on 30.07.1998, a mob had attacked the police ::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 8 station in issue and had destroyed the case property pertaining to the present case qua which FIR No. 221/1998 was registered against the accused there. Incidentally, he also .
deposed in his examination-in-chief that the case property was deposited with him by ASI on 10.11.1997. Now, this witness has not been cross examined at all by the defence. In other words, the contention of this witness that the case property which was deposited with him by the ASI on 10.11.1997 was destroyed by the mob which attacked the police station on 30.11.1997 has gone un-rebutted. Now, in these circumstances, in my considered view, when the statement of PW3 HC Kirpal Singh to the effect that the case property was destroyed in a mob attack on 30.07.1998 qua which FIR No. 221/1998 was duly registered was not disputed by the defence by subjecting the said witness to cross examination, the only conclusion which has to be drawn from the same is that the prosecution had duly established on record that the case property which was deposited by ASI Om Prakash pertaining to the present case on 10.11.1997 was destroyed in a mob attack upon the police station which took place on 30.07.1998. In this background, in my considered view, there is no merit in the contention of Mr. Chandel that learned Courts below erred in not ::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 9 appreciating that in the absence of their being any FIR on record or the relevant entries of daily dairy rapat from which it could be inferred that the case property in issue was .
destroyed in a mob attack, the conclusion arrived at to this effect was perverse. It is again reiterated that as the deposition in this regard by PW3 was not controverted by the defence by subjecting the said witness to cross examination, the petitioner cannot be permitted to take the plea that the conclusion drawn to this effect by both the learned Courts below is perverse.
b) The contention of Mr. Chandel that the judgments of conviction passed by both the learned Courts below were liable to be set aside on the ground that the nip which was sent as sample to CTL Kandaghat was never produced in the Court is also without any merit. Mr. Chandel could not point out as to under which provisions of law, the sample was supposed/required to be produced before the Court. The factum of sample having been sent to CTL Kandaghat has been duly proved in the Court by PW2 Shri Satish Singh and this witness has also not been cross examined by the defence.
Report of CTL Kandaghat has been duly proved on record as Ext. PX and the same categorically demonstrates that sample of illicit liquor contained 40.4 % proof alcoholic strength.
::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 10Defence has not been able to cloud the veracity of report Ext.
PX, nor any material has been produced on record by the defence from which it could be inferred that either this report .
is incorrect or it does not pertain to the sample which was taken from the illicit liquor recovered from the accused by the police. Therefore, there is no merit in the contention of Mr. Chandel that the judgments passed by both the learned Courts below were liable to be set aside on the found that sample nip, which was sent to CTL Kandaghat, was not produced in the Court of law.
c) The submission of learned Counsel for the petitioner that there was no link of accused with the commission of offence is also without any merit. Recovery of illicit liquor from the accused has been duly proved on record by PW1 Jainsi Ram who was part of the police party and who has proved the case of prosecution in the Court. Though this witness has been subjected to lengthy cross examination by the defence, however, credibility of this witness could not be impeached by the defence. Besides this, remaining evidence produced on record by the prosecution also duly proves and corroborates the case of the prosecution.
10. I have also gone through the judgments passed by both the learned Courts below and a perusal of the same ::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 11 demonstrates that the conclusions arrived at by both the learned Court below are duly borne out from the records of the case and the same are thus not perverse. In my .
considered view, it is evident from a perusal of the judgments passed by both the learned Courts below that learned Courts below took into consideration all aspects of the matter including the evidence which was placed on record by the prosecution and after a careful examination of the evidence, the findings of conviction have been returned against the accused.
11. 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 the absence of error on a point of law, re-appreciate evidence and reverse a finding of law. It has been further held by the Hon'ble Supreme Court that the object of the revisional jurisdiction was to confer upon superior criminal Courts a kind of 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 in undeserved hardship to individuals.
::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 1212. It has been reiterated by the Hon'ble Supreme Court in Shlok Bhardwaj Vs. Runika Bhardwaj and others (2015) 2 Supreme Court Cases 721 that the scope of .
revisional jurisdiction of the High Court does not extend to re-
appreciation of evidence.
13. It has been further reiterated by the Hon'ble Supreme Court in Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others (2015) 3 Supreme Court Cases 123:
"14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence.
::: Downloaded on - 20/06/2017 23:59:01 :::HCHP 13Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal.
Unless the finding of the court, whose .
decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.
14. In view of the above discussion, I am of the considered view that there is neither any perversity nor any infirmity with the judgments passed by the learned Courts below. Therefore, as there is no merit in the revision petition, the same is dismissed accordingly. Pending miscellaneous application(s), if any, also stands disposed of.
(Ajay Mohan Goel) Judge June 14, 2017.
(narender) ::: Downloaded on - 20/06/2017 23:59:01 :::HCHP