Himachal Pradesh High Court
Kulwinder Singh vs State Of Himachal Pradesh on 10 August, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Revision No.163 of 2011.
Judgment reserved on 07.08.2018 Date of decision: 10.08.2018.
Kulwinder Singh .......Petitioner.
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr.Anoop Chitkara and Ms.
Sheetal Vyas, Advocates.
For the Respondent : Mr.Vinod Thakur and Mr.Sudhir
Bhatnagar, Additional Advocate
Generals with Mr.Bhupinder
Thakur, Deputy Advocate General.
Tarlok Singh Chauhan, Judge.
The petitioner alongwith one Jastej Singh, was charged for the commission of offence punishable under Section 506/34 IPC and Section 27 of Indian Arms Act (for short 'Act') by the learned Judicial Magistrate Ist Class, Court No.1, Paonta Sahib, District Sirmaur, H.P., and both the accused were sentenced and convicted to undergo simple imprisonment for three months each and to pay a 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 2 .
fine of Rs.1,000/- each under Section 506 IPC and further sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,000/- each under Section 30 of Indian Arms Act and in default of payment of fine to undergo simple imprisonment for one month. Both these sentences were ordered to run concurrently.
2. The appeal filed against the said conviction by co-
accused Jastej Singh was accepted whereas the appeal filed by the present petitioner was dismissed by the learned Sessions Judge vide judgment dated 01.08.2011 and aggrieved thereby, the petitioner has filed the instant revision petition.
3. The case of the prosecution was that on 19.06.2002 at about 10.30.PM, complainant Mukesh Rathore reported to the police vide application Ext.PW1/A that on 19.06.2002, he was on night duty at Govindghat barrier and at about 9.30 PM, one Qualis vehicle came at the barrier, which was followed by one Esteem vehicle bearing No.PB-10AD-6117, the driver thereof was wearing white Kurta and Pyjama and was continuously blowing the horn and was asking to open the barrier. The complainant at that time was busy in issuing slip to Qualis vehicle. The complainant had asked the driver of Esteem vehicle to wait for some time, but the person occupying the rear seat of the vehicle who was none other than the petitioner, ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 3 .
brandished a pistol at him by taking out his hand from the window of the vehicle and while doing so, threatened to do away with his life.
The complainant, on this immediately asked Devinder to open the barrier. The incident was witnessed by the Excise Inspector and one Pinka. As soon as the vehicle left the barrier, the Excise Inspector informed the incident to the police and the police official accordingly informed Police Station, Paonta Sahib. The complainant further reported that in case, he would not have opened the barrier, he could have been killed by the petitioner and Jastej Singh. On this, complaint FIR Ext.PW16/F came to be registered at Police Station, Paonta Sahib. Information was also sent to the respective barriers, upon which, the said vehicle was intercepted at Behral barrier.
During inspection of the vehicle, a box containing 32 live cartridges was recovered. The petitioner produced a pistol Ex.P1, which was carrying 4 live cartridges. The vehicle on being produced by Jastej Singh was taken into possession. The owner of the vehicle during investigation produced the documents of the vehicle vide memo Ext.PW6/A. Both the accused were subjected to medical examination vide MLCs Ext.PW7/A and Ext.PW7/B. Verification about the pistol carried by the petitioner was got done from the office ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 4 .
of D.M. Patiala and the relevant document to that effect was taken into possession vide memo Ext.PW10/A.
4. After completion of investigation, challan under Section 506/34 IPC and Section 27 of the Act was put in the Court of learned Judicial Magistrate Ist Class, Court No.1, Paonta Sahib, Distt.
Sirmaur, H.P., and as stated above, the petitioner was convicted in the manner as aforesaid.
5. It is vehemently contended by learned counsel for the petitioner that the learned Courts below have failed to appreciate the material contradictions in the prosecution case and have further failed to notice the various infirmities on which the case had been set up by the prosecution and, therefore, the petitioner like his co-
accused Jastej Singh ought to have been acquitted.
6. On the other hand, learned Additional Advocate General, would support the judgments as passed by the learned Courts below by arguing that the petitioner has been rightly convicted for the offence.
7. I have heard learned counsel for the parties and gone through the material placed on the record.
8. The revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 5 .
in case the petitioners have been convicted and sentenced without examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on 13.09.2017, wherein the scope of criminal revision has been delineated in the following manner:-
"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.::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 6
.
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 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".
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".
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."::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 7
.
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.
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 re-appreciate the evidence.
In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon'ble Supreme Court held as under:
"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."
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".
In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon'ble Supreme Court held as under:
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"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."
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 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."
9. It is more than settled that some improvements, contradictions and omissions are bound to occur in every case and until and unless the same are very serious, vital and significant so as to disbelieve and discard the substratum and go to the root of the case, the same probably would have no bearing on the case of the ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 9 .
prosecution. However, minor contradictions, consistencies, embellishments and improvements on trivial matters without affecting the core of the prosecution case, should not be made a ground to reject the evidence in its entirety.
10. In the light of the aforesaid exposition of law, it would be noticed that the occurrence had taken place on 19.06.2002 as aforesaid, which had been witnessed by the Excise Inspector Gulab Singh, Mahinder Kumar, Devinder Singh and Gagan Deep Singh.
11. The complainant had appeared as PW-1 and his statement had been duly supported by other witnesses, which as per the findings of the learned Sessions Judge, were consistent and harmonious with the narration of facts as contained in Ext.PW-1/A.
12. PW-3 Excise Inspector was there at the barrier at that time and not only identified the pistol Ext.P1, which had been brandished on the complainant by the petitioner, but he in fact also identified the petitioner in the Court to be the same person, who was occupying the rear seat of the vehicle at the relevant time and had brandished the pistol. The presence of this witness had been duly established on the spot and, therefore, his testimony has to be given due credence.
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13. Likewise PW-5 Gagan Deep Singh had identified the accused in police station and the mere fact that he had been unable to identify the petitioner in the Court, was obviously not a ground to have discarded his testimony in its entirety.
14. Learned Sessions Judge has, therefore, rightly observed that as PW-5 swaying in favour of the accused in his cross-
examination only demonstrates his interestedness in securing an acquittal for the accused.
15. Likewise, if the testimony of PW-2, Devender Singh, is adverted to, he has categorically stated that at the relevant time a vehicle had come from Dehradun side and the persons sitting therein pointed something at Mukesh Kumar and at the same time asked him to open the barrier. The complainant at the relevant time was issuing slip to another vehicle. Even though, this witness was cross-examined but nothing material could be elicited therefrom.
16. At this stage, learned counsel for the petitioner, would argue that the material contradictions in the prosecution case with regard to (1) the number of vehicles present at the toll gate at the time of incident; (2) contradiction whether abuses were hurled or not; (3) contradiction as to what was pointed at, pistol or some imitation or hoax; (4) contradiction regarding presence of ladies in the car; (5), ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 11 .
contradiction in the make of vehicle whether Esteem or Ikon.
However, I do not find any of the so called contradictions, which may cast doubt on the prosecution story, more particularly, when the petitioner does not dispute his presence at the relevant time and place.
17. It is then vehemently argued that the Court could not have adopted two different parameters to acquit the co-accused Jastej Singh and at the same time convict the petitioner on the same set of evidence. Even this contention is equally without merit as the allegation and the nature of offence against both these persons is entirely different and this aspect of the matter has been meticulously analyzed and discussed by the learned Sessions Judge. In the complaint, Ext.PW-1/A, there is no reference that co-accused Jastej Singh had intimidated the complainant. Even the act of brandishing a pistol is equally attributed to the petitioner, as he was occupying the rear seat of the vehicle, whereas co-accused Jastej Singh was its driver. As rightly observed by the learned Sessions Judge, no role has been attributed to the driver of the vehicle nor the evidence in this regard has been adduced against accused Jastej Singh.
18. It is then vehemently argued by Mr. Anoop Chitkara, learned counsel for the petitioner that the prosecution case must fail, ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 12 .
as there is no prosecution sanction under Section 39 of the Act.
Thus, there could be no conviction under Section 30 of the Act. On perusal of the Arms Act, it would be noticed that offence under the Act does not require previous sanction of the District Magistrate, as is evident from Section 39 of the Act, which reads thus;
"39. Previous sanction of the district magistrate necessary in certain cases.--No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate."
19. Thus, it is only with respect to the offence under Section 3 of the Act that previous sanction of the District Magistrate is required. Section 3 of the Act reads thus;
"3. Licence for acquisition and possession of firearms and ammunition:
(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder: Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 13
.
[(2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub- section (3), shall acquire, have in his possession or carry, at any time, more than three firearms: Provided that a person who has in his possession more firearms than three at the commencement* of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement*, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section. (3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.
(4) The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that section."
20. According to Section 3, no person shall acquire or in his possession or carry any firearm or ammunition without a direct ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 14 .
licence issued in his favour in accordance with law or in favour of the person in whose direction or authorization, he acquires, possesses or carries any such firearm or ammunition. A contravention of provision in Section 3 of the Act has been made punishable under Sub-Section 1(B) and 1(C) of Section 45 of the Act.
21. As observed above, Section 39 does not prescribe for obtaining of sanction for any other offence, other than the offence under Section 3 which is punishable under certain penal provisions as provided in Chapter V of the Act. Therefore, merit of the contention of the petitioner has to be considered from the language used in the charge while framing charge against them by the trial Court. In that context, the charge reads thus;
'CHARGE' I, Hans Raj, Judicial Magistrate Ist Class, Court No.1, Paonta Sahib, District Sirmaur, do hereby charge you accused as under:
That on dated 19.6.2002 at about 9.30 PM at place Gobindghat Yamuna barrier, you accused alongwith your co- accused Jastej Singh came in Esteem vehicle No.PB-10-AD- 617 and accused Jastej Singh started threatening complainant Mukesh Rathor with dire consequences by saying that if he does not open the barrier he will bring 30-40 persons from ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 15 .
Haryana and blow horn and threatened him with dire consequences and thus you accused alongwith your co- accused committed an offence punishable under u/s 506 read with S.34 IPC and within my cognizance.
That on the aforesaid date, time and place accused Kulvinder took out his licenced gun/revolver having licence No.905/DM/P/Feb.87 and pointed the same on Mukesh Kumar by threatening that he will be shot and thus accused Kulvinder Singh used this gun for an unlawful purpose and thus you accused committed an offence punishable u/s 27 of the Arm Act and within my cognizance.
And, I hereby direct that you be tried by me on the aforesaid charge.
Sd/-
Judicial Magistrate, Ist Class, Court No.1 Paonta Sahib Certified that the contents of the abovesaid charge have been readover and explained to accused in Hindi and local vernacular language by me.
Sd/-
Judicial Magistrate, Ist Class, Court No.1 Paonta Sahib Statement of accused Kulwinder Singh son of Sada Singh, resident of Village Badnipur, Tehsil Amlok, District Fatehgarh Sahib, aged 34 years.
Without oath 29.12.2004 Q.1 Have you heard and understood the aforesaid charge?
Ans. Yes Sir, Q.2. Do you plead guilty or claim trial.
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Ans. I plead not guilty and claim trial.
Sd/-
Kulwinder Singh.
RO&AC Sd/-
Judicial Magistrate, Ist Class, Court No.1 Paonta Sahib"
22. It is apparent on the face of the record that the charge under Section 27 of the Act has been framed against the petitioner.
Though there is no charge for contravention of the provisions in Section 3 of the Act. Hence, sanction as stipulated under Section 39 of the Act , in the present case, was not required for prosecuting either of the accused. Accordingly, even this contention of the petitioner is rejected.
(Ref. Laxmi Prasad Agarwal Vs. State of Bihar, 1995(1) CRIMES (HC) 161 Patna, Khyali Vs. State of M.P., 1994 Crl. Law Reporter (MP) page 45, Krishna Nandan Vs. State of Bihar, 2000 Crl. Law Journal 2102 Patna, Ratan Deo Singh Vs. State of Bihar, 1989 Crl. Law Journal 1348).
23. Thus, in view of the aforesaid discussions, this Court has no hesitation to conclude that the Courts below have completely and correctly appreciated the evidence on record. There is no illegality, ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 17 .
infirmity or perversity in the judgment so rendered by the Courts below. Therefore, the conviction of the petitioner is upheld.
24. Learned Counsel for the petitioner at the time of arguments pleaded that in case the petitioner eventually is to be convicted, then in that eventuality, he be released on probation as the incident in question had taken place more than 16 years back on 19.06.2002, therefore, a lenient view in the matter be taken and he be released on probation. He further argued that after the incident, the house of the petitioner was burnt and in case, he again sent to custody, he along with his family would be stigmatized.
25. Section 4 of the Probation of Offenders Act empowers the Court to release the convict on entering into a bond, with or without sureties, on probation when he/she is found guilty of committing any offences not punishable with death or imprisonment for life. Relevant portion of Section 4 is reproduced as under:-
"4.Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 18 .
notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavior;
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond."
26. For exercising the power which is discretionary, the Court has to consider various circumstances of the case, like the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take realistic view of the gravity of the offence, the impact which the offence had on the victim, the benefit available to the accused under this provision is subject to the limitation embodied in the provision as is evident from the use of the word "may" which clearly indicates that the discretion vested with the Courts whether to release the offender in exercise of the power under Sections 3 or 4 of the Act having regard to the nature of the offence and character of the offender and ::: Downloaded on - 10/08/2018 23:03:56 :::HCHP 19 .
over all circumstances of the case. The powers under Section 4 of the Act vest with the Court when any person is found guilty of the offence committed not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Courts come to a conclusion by considering the circumstances of the case including the nature of the offence and the character of the offender, benefit should be given to the accused. Obviously, this power is not available and can be exercised by the Court even at the appellate stage.
27. Having regard to the rival contentions of the learned counsel for the parties, and having gone through the circumstances emanating from the record and after in depth consideration of the entire matter, I find no legal impediment for considering the case of the petitioner for grant of probation, particularly, in light of the fact that the incident in this case (i) pertains to the year 2002; (ii) the petitioner has already faced the pangs and suffered agony of protracted trial and appeal/revision for the last more than 16 years.
28. Even the modern trend of penology also leads to the reformation of the offender so as to make him/her useful citizen of the society. No useful purpose is otherwise going to be achieved by again sending the petitioner to jail.
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29. Accordingly, let the Probation Officer of the area concerned where the petitioner permanently resides place before this Court his report qua the antecedents of the petitioner on or before next date of hearing.
List on 11.09.2018.
August 10, 2018
(rana)
r to (Tarlok Singh Chauhan)
Judge
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