Himachal Pradesh High Court
Kalia Ram Alias Kalu vs State Of H.P on 25 October, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 67 of 2011
Date of Decision: 25.10.2016
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___________________________________________________________
[
Kalia Ram alias Kalu .........Petitioner.
Versus
State of H.P. ............Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1? Yes.
For the petitioner: Mr. G.R. Palsra, Advocate,
For the respondent:
rt Mr. P.M. Negi, Additional Advocate General
with Mr. Ramesh Thakur, Deputy Advocate
General.
________________________________________________________
Sandeep Sharma, J.
The present criminal revision petition filed under Sections 397/401 of the Cr.PC, is directed against the judgment dated 4.3.2011, passed by the learned Additional Sessions Judge, Mandi, HP, in Criminal Appeal No. 46 of 2006, partly modifying the judgment of conviction and order dated 18.11.2006 and 21.11.2006, respectively, passed by the learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, HP, in Police Challan No. 812-I/2001, whereby the accused-
petitioner has been sentenced as under:-
"To undergo simple imprisonment for a period of one year for commission of offence punishable under Section 324 IPC and to pay fine of Rs. 1000/-. The petitioner-accused has been further sentenced to pay fine of Rs. 1000/- for the commission of offence punishable under Section 341 of IPC and under Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:26:34 :::HCHP -2-
Section 504 IPC, petitioner is further sentenced to undergo simple imprisonment for six months. In default of payment under Sections 324 & 341 IPC, to further undergo simple imprisonment for a period of one month."
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2. Briefly stated facts as emerged from the record are that on 24.7.2001, at about 8:00 AM, the present petitioner-accused after wrongfully restraining the complainant Chinta Devi, caused her simple injuries on her hand by a sharp edged weapon and also criminally of intimidated and threatened her. As per prosecution story, on the date of occurrence, the complainant (PW1)along with her son Satpal (PW2), was cutting grass from government land and at about 8:00AM, rt accused came on the spot and tried to prevent the complainant from cutting the grass. Complainant inquired as to who was he to make such an inquiry. The accused started abusing the complainant and gave her beatings and inflicted a blow of sickle (Darati) on her left hand, as a result of which, the complainant suffered injury on her hand.
Accused also criminally intimidated and threatened the complainant and thereafter fled away from the spot after raising of alarm by the complainant. Matter was reported to the Police Station, Sundernagar at about 11:00 am, on the basis of which, FIR No. 227/2001 dated 24.7.2001 came to be registered against the accused for having committed offence punishable under Sections 323, 341, 504 IPC. Police got complainant medically examined at Civil Hospital Sundernagar where she was examined by Dr. H.K. Abrol, Medical Officer, who ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP -3- opined that the complainant suffered simple injuries by means of sharp edged weapon. Police, during the investigation, took into possession .
the weapon of offence and after preparing the spot map also recorded the statements of witnesses under Section 161 of the Cr.PC.
After completion of investigation, police presented the Challan before the competent court of law.
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3. Learned Additional Chief Judicial Magistrate, Sundernagar, Mandi, HP, after satisfying itself that prima facie case exists against the accused, put a notice of accusation, to which he pleaded not guilty rt and claimed trial. Learned trial Court on the basis of evidence adduced on record by the prosecution, found the accused guilty of having committed offences under Sections 341, 324 and 504 of the IPC and convicted and sentenced him as per description already given above.
4. Being aggrieved with the judgment of conviction passed by the learned trial Court, present petitioner-accused, filed appeal under Section 374 of Cr.PC before the Court of learned Additional Sessions Judge, Mandi, HP, who vide judgment dated 4.3.2011, partly allowed the appeal by acquitting the accused for the commission of offences punishable under Sections 341 and 504 of the IPC, However, fact remains that his conviction under Section 324 of the IPC was maintained. Hence, this criminal revision petition before this Court.
::: Downloaded on - 15/04/2017 21:26:34 :::HCHP -4-5. Mr. G.R. Palsra, Advocate, representing the petitioner vehemently argued that the impugned judgments of conviction and .
sentence recorded by the Courts below are not sustainable as the same are not based upon the correct appreciation of material available on record and same deserve to be quashed and set-aside.
He further contended that bare perusal of the judgments passed by of the Courts below clearly suggests that courts below while convicting and sentencing the petitioner accused have not dealt with evidence led on record by the prosecution in its right perspective, rather rt judgments are based upon the conjectures and surmises and as such, same are liable to be quashed and set-aside. Mr. Palsra, with a view to substantiate his aforementioned argument made this court to travel through the judgments passed by the courts below to demonstrate that there was no evidence, which could be termed sufficient to hold petitioner guilty for the charges framed against him. Mr. Palsra, further contended that version put forth by the complainant (PW1)and her son (PW2)could not be given much weightage, as has been done in the present case, especially, in the absence of any independent witness. He further stated that no independent witness was cited by the prosecution to further testify the story put forth on behalf of the complainant and her son. While referring to the statement of PW5, Mr. Palsra stated that though an attempt was made by the prosecution to ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP -5- term the aforesaid witness as independent witness but perusal of deposition made by him nowhere supports the version on behalf of the .
material PW 1 and PW2 because at no point of time, so called witness stated that he saw present petitioner-accused inflicting injury on the hand of complainant and as such, same could not be relied upon by the court below while recording conviction of the present petitioner of that too on the basis of statements of PW1 and PW2. While concluding his arguments, Mr. Palsra specifically invited attention of this Court to the statement of Dr. H.K. Abrol, especially cross-examination, wherein rt he stated that the said injuries are also not possible by blow of sharp edged weapon. Mr. Palsra forcefully contended that medical evidence led on record by the prosecution, nowhere corroborates the version put forth on behalf of the complainant and as such, judgments passed by the courts below deserve to be quashed and set-aside. Mr. Palsra strenuously argued that no conviction, on the basis of statements of interested parties that too contradictory statements, could be recorded by the Courts below and as such, petitioner accused deserves to be acquitted of charges framed against him after setting aside judgment of conviction.
6. Per contra, Mr. P.M. Negi, Additional Advocate General duly assisted by Mr. Ramesh Thakur, Deputy Advocate General, representing the State supported the impugned judgment passed by ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP -6- the courts below. Mr. Negi vehemently argued that bare perusal of the impugned judgments suggests that same are based upon the correct .
appreciation of the evidence available on record and prosecution has been able to prove its case beyond reasonable doubt. He further contended that in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted. It stands proved of on record that accused inflicted a blow of sickle on the left hand of the complainant. He also submitted that this Court has very limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to rt re-appreciate the evidence, especially, when it stands duly proved on record that the courts below have dealt with each and every aspect of the matter very meticulously. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case State of Kerala Vs. 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 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."::: Downloaded on - 15/04/2017 21:26:34 :::HCHP -7-
7. I have heard learned counsel for the parties as well carefully gone through the record .
8. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the of statements of the prosecution witnesses 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 rt record.
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 case 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 ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP -8- 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."
10. During the proceedings of the case, this Court had an of occasion to peruse the entire evidence led on record by the prosecution, perusal whereof, clearly suggests that on the date of rt occurrence, petitioner-accused stopped the complainant from cutting grass and in that process, he inflicted blow of sickle (darati) on her hand, as a result of which, simple injury was caused on the hand of the complainant. Though, petitioner accused in his statement recorded under Section 313 Cr.PC denied the case of the proseuciton in toto but fact remains that he did not lead any evidence in his defence.
11. Prosecution with a view to prove its case, examined as many as six witnesses. PW1 Chinta Devi, the complainant, in her statement stated that she and her son Satpal (PW2) had gone to cut the grass from the government forest and in the meantime, accused enquired as to why she was cutting the grass. She replied that everybody cuts grass form the Govt. land but accused gave her beatings. She further stated that accused started giving her beatings ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP -9- and her sickle fell down, which was picked up by the accused and accused inflicted blow on her hand with the same. She further stated .
that when she raised alarm, the accused fled away from the spot leaving the sickle on the spot. She admitted that she used to cut grass from the place earlier also, however, she denied the suggestion put to her that she was cutting grass forcibly. She further stated that noise of could be heard in the village. In her cross-examination, she denied the suggestion put to her by the defence that no injury was inflicted on her hand by the accused, and she suffered injury herself while cutting rt grass.
12. PW2 Satpal, corroborated the version put forth on behalf of PW1-the complainant. He stated that he and his mother were cutting the grass in the jungle on 24.7.2001. The accused came and stopped the complainant from cutting the grass and gave beatings to her. He further stated that the sickle fell down and the accused picked up the same and inflicted a blow on her left hand and ran away. In his cross examination, he admitted that he was not aware that the accused used to cut grass from the government forest earlier. He denied that complainant continued to cut grass despite the protest of the accused.
He also denied that he had not given any beatings. This witness also denied the suggestion put to him that the accused had asked the complainant not to cut the grass but she continued to cut the grass ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP
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13. Careful reading of version put forth by these PWs in examination-in-chief as well as cross-examination conducted upon .
them clearly suggests that on 24.7.2001, accused while stopping the complainant from cutting the grass inflicted blow of sickle on her left hand, as a result of which, simple injury was caused on her left hand.
Close scrutiny of cross examination conducted on these PWs, nowhere of suggests that the defence was able to extract anything contrary to what they stated in their examination-in-chief, rather, careful reading of depositions made by these PWs clearly suggests that they have been rt very very consistent, candid and straightforward while narrating the sequence of events allegedly occurred at the time of the incident.
14. This Court after perusing the suggestions which were put to the PWs in their cross examination, is compelled to draw the conclusion that accused had gone to the spot at the time of occurrence because admittedly, suggestion was put to the aforesaid PWs that the complainant kept on cutting the grass despite being stopped by the accused, not to cut the grass, meaning thereby accused petitioner himself admitted his presence on the spot at the time of occurrence.
Similar suggestion was put to PW1, whereby she was asked that accused used to cut the grass at the place of incident and she objected to cutting of the same by the petitioner-accused, which also indicates towards the fact that at the time of occurrence, petitioner-
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accused was present at the site of occurrence and there was dispute with regard to cutting of grass.
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15. PW4, Dr. H.K. Abrol, who conducted medical examination of the complainant specifically found incised wounds on the index finger and the middle finger towards the palmer aspect. He categorically stated that injury (supra), could have been caused by of means of sharp edged weapon like sickle. Doctor in his cross examination specifically denied that injury could be caused while cutting the grass or by fall on sharp objects. In the later part of his cross rt examination, he admitted the suggestion that this injury is not possible by way of sharp weapon; however, it depends upon the direction of force used. But if statement of Doctor is read in its entirety, it clearly proves case of the prosecution that on the date of occurrence, injury was caused to the complainant by the petitioner with the blow of sickle.
16. PW5 Pawan Kumar, who was though declared hostile admitted that complainant told him that her fingers were cut by the accused and thereafter, accused ran away. In his cross examination by APP, he denied that he deposed to help the complainant. Though, this witness did not support the case of the prosecution but fact remains that he categorically admitted that he heard shouting of the complainant and her son and thereafter, he was told by the ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP
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complainant that accused cut her finger and fled away from the spot.
If his statement is carefully read, it clearly corroborates the version put .
forth by PW1 and PW2 and proves the presence of the petitioner accused on the site at the time of alleged occurrence.
17. Mr. Palsra while seeking quashing of the impugned judgment specifically argued that version put forth by PW1 and PW2 of could not be relied upon in the absence of any independent witness.
He further stated that statement of PW5 (Pawan Kumar) could not be taken into consideration by the Courts below while holding the rt petitioner accused guilty of having committed offence (supra), because he nowhere supported the case of the prosecution. The aforesaid statement made by Mr. Palsra, deserves to be rejected outrightly, on the ground that even if statement of PW5 is ignored, version put forth by PW1 and PW2 is sufficient to conclude that on the alleged date, injury was caused on the hand of the complainant by the accused by inflicting blow of sickle because there is nothing in the cross-examination, of the aforesaid prosecution witnesses, from where it could be inferred that there was prior enmity, if any, between the parties and they had some motive to falsely implicate the present petitioner. Cross-examination conducted upon the PWs, nowhere suggests that any suggestion worth the name with regard to motive, if any, to falsely implicate the present petitioner-accused was put to ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP
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witnesses. Moreover, as has been discussed above, statement of PW 5, who could be termed as an eye witness, though declared hostile, was .
also rightly relied upon by the Court below to the extent of proving presence of the present petitioner accused on the site of occurrence at the time of incident.
18. After carefully going through evidence led on record by of the prosecution, this Court sees no reason to interfere with the well reasoned judgment of conviction recorded by both the courts below, which otherwise appear to be based upon the correct appreciation of rt evidence available on record and as such, same deserves to be upheld.
19. Faced with this situation, counsel representing the petitioner prayed that, if it is presumed that injury which is admittedly simple in nature, was caused by the petitioner-accused by inflicting blow of sickle on the hand of the complainant, the petitioner deserves to be given benefit of Section-4 of the Probation of Offenders Act keeping in view of his being first offender. Mr. Palsra, also stated that mitigating circumstance in this case is that approximately, more than sixteen years have passed after happening of that incident and ten years have been passed after passing of the judgment of conviction dated 18.11.2006 and the accused petitioner has already suffered much agony during the pendency of the appeal in the court of ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP
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learned Additional Sessions Judge Mandi (H.P.), as well as in High Court of Himachal Pradesh. In support of the aforesaid argument, learned .
counsel for the petitioner-accused also invited the attention of this Court to the judgment passed by this Hon'ble Court in Yudhbir Singh versus State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been held as under:
of "9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the rt petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act.
Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to keep peace and to be of good behavior for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons."
20. In this regard, reliance is also placed upon Hon'ble Apex Court judgment Ramesh Kumar @ Babla versus State of Punjab 2016 AIR (SC) 2858, wherein it has been held as under:
"7. Accordingly the appeal is allowed in part by converting appellant's conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant).::: Downloaded on - 15/04/2017 21:26:34 :::HCHP
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He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such circumstances, it is not deemed necessary to send .
the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life.
8. In view of aforesaid, in our view the ends of justice would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour."
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21. The reliance is also placed upon the Hon'ble Apex Court judgment Hari Kishan and State of Haryana versus Sukhbir Singh 1988 rt AIR (SC) 2127, wherein it has been held as under:
"8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate.
9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to section 357 Criminal Procedure Code Section 357, leaving aside the unnecessary, provides:-
"357. Order to pay compensation: (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP
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Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or .
injury caused by the offence, when compensation is in the opinion of the Court, recoverable by such person in a civil Court; Xxxxxxxxxxxxxx Xxxxxxxxxxx Xxxxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation. Such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused of person has been sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision.
(5) At the time of awarding compensation in any subsequent civil rt suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section.
11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default."
22. In view of the aforesaid law as well as submissions having been made by the learned counsel appearing for the petitioner and after taking into consideration the facts and circumstances of the present case, I am of the considered opinion that the present petitioner-accused can be granted benefit of Section 4 of the Probation of Offenders Act, 1958 subject to payment of adequate ::: Downloaded on - 15/04/2017 21:26:34 :::HCHP
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compensation, which would be determined after the receipt of the report of Probation Officer.
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23. Accordingly, Registry is directed to call for the report of the Probation Officer, Mandi, District Mandi, H.P., within six weeks and list this matter on 30th December, 2016.
of
25th October, 2016 (Sandeep Sharma),
manjit Judge.
rt
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