Himachal Pradesh High Court
Onkar Chand vs State Of H.P on 5 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 195 of 2008
Reserved on 26.7.2016
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Date of Decision: 5.8.2016.
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[
Onkar Chand .........Petitioner.
Versus
State of H.P. ............Respondent.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the petitioner:rt Ms. Sunila Bhardwaj, Advocate vice
counsel.
For the respondent: Mr. Rupinder Singh Thakur, Additional
Advocate General with Mr. Rajat
Chauhan, Law Officer.
________________________________________________________
Sandeep Sharma, J. (Oral)
Present criminal revision petition filed under Section 397 of the Code of Criminal Procedure is directed against the judgment of conviction and sentence rendered by learned Sessions Judge, Hamirpur, H.P., in Criminal Appeal No. 24 of 2008, affirming the judgment passed by learned Chief Judicial Magistrate, Hamirpur, HP, whereby the petitioner-accused namely Onkar Chand has been sentenced to undergo simple Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:58:50 :::HCHP -2-imprisonment for a term of six months and to pay fine of Rs. 1,000/-
and in default to undergo simple imprisonment for one month for .
the commission of offence punishable under Section 323 of IPC;
and to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2,000/- and in default to undergo simple imprisonment for a period of two months for the commission of of offence punishable under Section 325 of IPC. Both the substantive sentences of imprisonment have been ordered to run concurrently.
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2. Briefly stated facts as emerge from the record are that on 5.11.2008, complainant, Neelam Kumari, visited the Police Station, Hamirpur and alleged that on 4.11.2006, when she was present in her house along with her son Ankit about 8 PM, accused Onkar Chand neighbourer, started giving beatings to Ankit, by stating that Ankit was abusing him. It also emerges from the record that Ankit is mentally challenged since his birth and as per the complainant; he is/was unable to comprehend anything. She told the petitioner-accused that Ankit cannot understand anything and thereafter, accused entered their house and also gave beatings to the complainant. She specifically alleged that the ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP -3- petitioner-accused tore away her shirt also and in the meanwhile, her husband (Kishori Lal) also returned from the work and he .
intervened. Then, the accused gave blow to her husband on his mouth, as a result of which, blood started oozing out from his mouth. His one tooth was also loosened. On the basis of aforesaid complaint, police registered FIR i.e. Ext.PW8/A and also moved an of application Ext.PW8/B to the Medical Officer, for medical examination of the injured persons and got the complainant, her rt son and her husband medically examined by Dr. S.K. Kashmiri, who vide MLCs Ext.PW1/A, Ext.PW1/C and Ext.PW1/B rendered his medical opinion. Record further reveals that Kishori Lal was also medically examined for teeth injuries by PW5, Dr. Chaman Kant, who conducted his dental examination and advised X-rays. X-rays were taken and the fracture of crown was detected in the X-rays.
PW8 Satish Kumar ASI investigated the matter and after visiting the spot prepared site plan. He after recording the statement of aforesaid witnesses came to conclusion that prima facie case exists under Section 451, 323 and 325 IPC against the accused and accordingly, presented the challan in the Court of learned Judicial Magistrate, Hamirpur, on 17.11.2008.
::: Downloaded on - 15/04/2017 20:58:50 :::HCHP -4-3. Learned Trial Court taking cognizance of the averments contained in the challan as well as documents .
annexed therewith, summoned the accused and framed charges against him for having committed offences punishable under Sections 451, 323 and 325 IPC, to which petitioner-accused pleaded not guilty and claimed trial.
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4. Close scrutiny of record reveals that prosecution with a view to prove its case examined as many as eight witnesses rt whereas learned trial Court also recorded statement of the accused under Section 313 of Cr.PC, wherein he denied all the allegations leveled against him. However he examined DW1 Ranbir Singh in his defence. Learned trial Court on the basis of evidence adduced on record by the prosecution found the accused guilty of having committed offences under Sections 323 and 325 IPC and as such convicted and sentenced him to punishment vide judgment and order dated 1.3.2008, description whereof has already been given above. However, fact remains that petitioner-accused was acquitted of charges framed against him under Section 451 of the IPC.
::: Downloaded on - 15/04/2017 20:58:50 :::HCHP -5-5. Feeling aggrieved and dissatisfied with the aforesaid judgment of conviction/sentence imposed by learned trial Court, .
petitioner-accused filed appeal under Section 374 of the Cr.PC before the Court of learned Sessions Judge, Hamirpur, HP, vide criminal appeal No. 24 of 2008, which was also dismissed vide judgment dated 13.10.2008.
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6. In the aforesaid background, petitioner has approached this Court by way of criminal revision petition seeking rt quashment and setting aside of the aforesaid judgment passed by the Courts below.
7. Ms. Sunila Bhardwaj, counsel appearing for the petitioner vehemently argued that impugned judgment of conviction and sentence passed by the courts below is not sustainable in the eye of law as the same are not based upon the correct appreciation of evidence available on record. It is also contended on behalf of the petitioner-accused that learned courts below have committed material illegality and irregularity by convicting the petitioner because there was no material much less sufficient to conclude that the petitioner- accused had caused injury to the complainant and as such, courts below have fallen in ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP -6- grave error while convicting the petitioner-accused. During arguments having been made by Ms. Bhardwaj, she made this .
Court to travel through the various statements adduced on record by the prosecution to demonstrate that there are material contradictions, which could not be easily ignored by the courts below. She strenuously argued that it stands duly proved on of record that the courts below have wrongly come to conclusion that accused had voluntarily caused simple hurt to the rt complainant, her son and her husband because there was no eye witness whatsoever, to the alleged occurrence and as such, courts below have committed grave illegality while accepting the version put forth on behalf of the complainant that too in the absence of some independent witnesses. She also invited attention of this Court to the statement of the complainant-PW3, wherein she admitted that dispute is pending between them and accused and as such, courts below ought to have exercised due care and caution while dealing with the statements given by the complainant and her husband, who admittedly were inimical towards the accused. Ms. Bhardwaj, also stated that learned courts below have heavily relied upon the witnesses of the ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP -7- prosecution, who were admittedly family members of the complainant and as such, given long enmity between the family .
member and the accused, courts below should not have relied upon the testimonies of these interested witnesses. While concluding her arguments, Ms. Bhardwaj forcefully contended that even the sentence imposed upon the accused vis-à-vis of alleged injuries, caused to the complainant and her husband, is quite harsh and excessive and learned Court below have not rt returned any finding while rejecting the prayer of the accused for grant of benefit of Probation of Offenders Act and as such, prayed that in case this Court comes to conclusion that accused is guilty of having committed offences, he being first offender may be given benefit of the Probation of Offenders Act.
8. Per contra, Mr. Rupinder Singh Thakur, Additional Advocate General, duly assisted by Mr. Rajat Chauhan, Law Officer, representing the State supported the impugned judgment passed by the courts below. Mr. Thakur, 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 ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP -8- beyond reasonable doubt. Mr. Thakur contended that in the given facts and circumstances of the case, no interference, .
whatsoever, of this Court, is warranted. He further contended that it stands proved on record that accused had given beatings to the complainant, her physically challenged son and husband. Mr. Thakur with a view to substantiate his aforesaid contention invited of attention to the statement of PW1 Dr. SK. Kashmiri wherein, he categorically stated that he had medically examined the injured rt persons and found injuries on their persons. He also invited attention of this Court to the statement of Dr. Chaman Kant, Dental Surgeon, who categorically stated that he examined medically Kishori Lal vide MLC Ext.PW5/A and found that there was wound on the upper lip. He also invited attention of this Court to the specific statement of PW5, wherein he stated that it was found that there was fracture with crown of upper left 1st and 2nd premolars and roots stamps were intact. In the aforesaid background, Mr. Thakur, forcefully contended that it stands duly proved on record that accused had given beatings to the complainant, her son and husband without any rhyme and reason and as such, he has been rightly convicted and sentenced by the ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP -9- courts below. Mr. Thakur also opposed the prayer of the accused for extending him benefit of Section of the Probation of Offenders .
Act. Mr. Thakur also stated that this Court has very limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-appreciate the evidence when it stands duly proved on record that the courts below have dealt with each and every of aspect of the matter very meticulously.
9. I have heard learned counsel for the parties as well rt carefully gone through the record
10. 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 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 record.
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 ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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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 of judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
8.rtThe 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/ ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
12. Though, this Court after perusing the judgments passed .
by the courts below as well as statements adduced on record by the proseuciton is fully convinced that present petitioner-accused gave beating to the complainant PW2 and her son and husband and as such, courts below have rightly held him guilty for having of committed offences under Section 323 and 325 IPC, but this Court solely with a view to do complete justice undertook an exercise to rt critically examine the evidence adduced on record by the respective parties to reach fair and just conclusion in the matter.
13. PW2 Neelam Kumari, the complainant categorically stated that accused came into their courtyard and gave beating to her son, who is mentally challenged. She specifically stated that when she interfered, accused started giving beatings to her and also tore away her cloths. It has also come in her statement that when her husband-PW3 returned from work and enquired about the incident, accused also gave beatings to him and as a result of which, his tooth was broken. She also stated that immediately after the incident, they went to the Up-Pradhan, who advised them to go to the Police Station and lodge report. She also ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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proved on record Ext.PW1/A i.e. statement recorded by the police at the time of reporting the matter to the police.
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14. Careful perusal of the cross-examination conducted on this witness, clearly suggests that defence has not been able to shatter the testimony of this witness, who has been very very candid, specific and straightforward in narrating the incident. She of also admitted that they have a land dispute with the accused.
She also admitted that there are 100-150 houses in village Aghar rt but at that time, villagers were in their house. She also admitted that Rakesh (brother in law of the complainant) had also gone to the police station, when the FIR was lodged. She categorically admitted in her cross-examination that at the time of incident, none was present at the spot and as such, incident was not witnessed by anybody. She also admitted in her cross-examination that tooth of her husband was broken.
15. Similarly, PW3 husband of the complainant reiterated the same what was stated by her wife PW2 in her examination-in-
chief. Careful perusal of their statements clearly suggests that accused had given beatings to him (PW3), his son and his wife. He (PW3) also stated that cloths of her wife were torn by the accused.
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He also corroborated the statement of PW2, where she had stated that when her husband returned from work, he inquired from the .
weeping child about the incident. He also stated that when he asked the accused why did he give beatings to his son and wife, accused gave beatings to him and broke his tooth.
16. Similarly, cross-examination conducted on this witness of also suggests that defence has not been able to extract anything contrary to what he stated in his examination-in-chief, rather, rt aforesaid witnesses, PW2 and PW3 have been very very candid, specific and straightforward in making allegations against the accused. Bare perusal of the testimonies of these witnesses appears to be confidence inspiring and trust-worthy and as such both the courts below have rightly placed reliance on their statements while holding the accused guilty of having committed offences, as has been already mentioned above.
17. PW4 Rakesh Kumar, brother in law of the complainant has also been very very candid and specific in stating when he heard the noise, he came out and found that blood was oozing out from his brother's mouth i.e. PW3 Kishori Lal and accordingly, he went to Ward Panch Up Pradhan and narrated the incident, ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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who advised him to report the matter to the police. He also stated that he was told about the incident by the complainant and Ankit .
also. In his cross-examination, he admitted that his house is at a distance of hundred meters from the house of PW3. He also admitted that there are 4-5 houses adjacent to the house of PW3 but as per him, none resides there. He also admitted in his cross-
of examination that there are 40-50 houses in the village and none from the village came to the spot. He specifically admitted in his rt cross-examination that incident did not take place in his presence.
He also admitted that there is a dispute about land between PW3 (Kishori Lal) and the accused.
18. Perusal of the statement given by PW4 corroborates the version put forth by the PWs No. 2 and 3, who categorically stated that blood was oozing out from the mouth of the Kishori Lal when he reached the spot after hearing his noises. PWs No. 2, 3 and 4 have specifically admitted in their cross-examinations that though there were houses adjacent to the house of PW3, but none from the village came to the spot. These prosecution witnesses also admitted that there is a dispute about the land between PW3 and the accused. But interestingly, no suggestion worth the name ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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was put to these prosecution witnesses by defence specifically qua the motive, if any, to depose falsely against the petitioner-
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accused. Careful perusal of the cross-examination conducted on this witness suggests that though defence put suggestion that there is land dispute inter-se them but no specific suggestion with regard to motive, if any, at that juncture to falsely implicate the of accused, was put to them. After conjoint reading of these aforesaid witnesses, it can be safely inferred that accused gave rt beating to the complainant, her son and husband for no reasons, whatsoever.
19. PW1 Dr. SK. Kashmiri and PW5 Dr. Chaman Kant, Dental Surgeon, who had examined the injured persons and issued MLCs Ext.PW1/A to Ext.PW1/C categorically stated that they had medically examined the injured. He (PW1) while deposing before the Court below categorically stated that he had examined aforesaid persons and had rendered MLCs as mentioned above.
Bare perusal of MLCs (Supra) clearly suggests that injuries were caused to the complainant, her son and her husband. Moreover, PW5 specifically stated that he medically examined PW3 Kishori Lal ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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(husband of the complainant), who was referred to him by medical officer for dental opinion and found following injuries:-
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"Extra oral examination. There was slight haemotoma on upper and lower lip. Intra oral Examination. There was lacerated wound on the upper lip corresponding to upper left 1st and 2nd premolars."
of Careful perusal of testimony of PW1 clearly suggests that simple injuries were found on their persons. Aforesaid prosecution witness rt categorically stated that he noticed injuries on the person of Kishori Lal and referred him to dental surgeon (PW5), who issued opinion that there was fracture and the nature of injury was grievous. It has also come in his statement that all these injuries could have been caused by kicks and fist blows. PW1 in his cross-examination admitted that these injuries can be caused by way of fall on a hard surface as well as by barbed wire, which was merely an alternative possibility but interestingly, no suggestion worth the name in this regard, was put to the aforesaid prosecution witnesses (PW2 to 4) and hence, this Court sees no reason whatsoever, to disbelieve the version put forth on behalf of PWs 2 and 5.
20. Similarly PW7 Amin Chand deposed before the ld. trial Court that on 1.11.2004 at about 8:30pm Kishori Lal (PW3)and ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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Rakesh (PW4) had come to him. Mouth of PW3 was oozing out blood He also stated that they narrated the incident to him and .
he advised him to lodge report with the police as the incident was beyond the jurisdiction of Panchayat.
21. In his cross-examination, he admitted that no written complaint was made to him but he also admitted that no quarrel of had taken place in his presence. He also stated that there is five minute walk distance between his house (PW7) and of Kishori Lal (PW3).
rt Careful perusal of the examination-in-chief and cross-
examination of this aforesaid witness corroborates the version put forth on behalf of PW2 and PW4, who unequivocally stated that after the incident they had gone to PW7 Amin Chand, Up-
Pradhan, who advised them to report the matter to the police.
22. Similarly, PW8 ASI Satish Kumar I.O. stated that during the intervening night on November, 4/5, 2008, he recorded the FIR Ext.PW8/A and recorded the statement of the complainant and got them medically examined vide application Ext.PW8/B. He also stated that he went to the spot and prepared site plan Ext.PW8/C. In his cross-examination, he admitted that there are many houses near the house of Kishori Lal. He also admitted that he associated ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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Pradhan and Up-Pradhan in his investigation and it has come in the investigation that there is land dispute between the parties.
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23. Conjoint reading of aforesaid prosecution witnesses critically analyzed hereinabove, leaves no doubt in the mind of the court that accused had given beatings to PW2, PW3 and their mentally challenged son Ankit, as a result of which, simple as well of as grieves injuries were caused to them, which stands duly proved with the medical evidence led on record by the prosecution. This rt Court after perusing the record in detail, specifically the statements of PWs, sees no reason to differ with the finding returned by the courts below, where they have concluded that prosecution has been able to prove its case beyond reasonable doubt.
24. During the arguments having been made by the counsel for the parties, this Court had an occasion to go through the statements made by each and every prosecution witnesses, perusal whereof clearly suggests that all the prosecution witnesses have been very very candid, specific and straightforward and their versions appear to be trustworthy. No doubt, as has been noticed by the Courts below, that there are minor contradictions in the ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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statements given by the prosecution witnesses, but those are not of that magnitude, which could compel this Court as well as courts .
below to draw the inference that story put forth on behalf of the proseuciton is not trustworthy.
25. Another contention put forth by counsel representing the petitioner that no independent witness was associated by the of prosecution witnesses and as such, courts below ought to have drawn adverse inference. In this regard, this Court after perusing rt the statements given by PWs 2 to 4 and PW7 sees no necessity for the prosecution to cite some independent witnesses because aforesaid PWs have categorically stated that none came at the site of occurrence at the time of incident and as a matter of fact, nobody saw the incident. Hence, this Court sees no illegality and infirmity in the findings returned by the both the Courts below, where they have concluded that omission of independent witness is not a fetal to the case of proseuciton. Moreover, bare perusal of the judgment passed by learned trial Court clearly suggests that learned Judge has dealt with each and every argument having been made on behalf of the accused by applying the ratio of law ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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laid down by this Court as well as Hon'ble Apex Court from time to time.
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26. Faced with this situation, learned counsel for the petitioner-accused also prayed that accused may be given the benefit of probation under Section 4(b) of the Probation of Offenders Act, 1958 keeping in view his being first offender. She of also stated that mitigating circumstance in this case is that approximately, ten years have passed after happening of that rt incident and eight years have been passed after passing the judgment dated 01.3.2008, whereby the accused was convicted and he has already suffered much agony during the pendency of the appeal in the court of learned Sessions Judge, Hamirpur as well as in High Court of Himachal Pradesh. Counsel representing the petitioner also submitted that accused is young and has a long career ahead and in case, he is not extended the benefit of Probation of Offenders Act, great prejudice would be caused to him. In support of the aforesaid arguments, 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 ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been held as under:
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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 of sending the 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 rt 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.
27. Consequently, in view of the detailed discussion made herein above, this Court sees no illegality/infirmity in the judgments passed by the courts below and, as such, same are upheld.
However, at this stage, keeping in view the facts and circumstances narrated in para (supra), this court is of the opinion ::: Downloaded on - 15/04/2017 20:58:50 :::HCHP
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that benefit of Section-4 of Probation of Offenders Act, 1958, can be extended in favour of the petitioner. Accordingly, Registry is .
directed to call for the report of the Probation Officer, Hamirpur, HP, within six weeks. Registry to list this matter on 30th September, 2016.
of
5th August, 2016 (Sandeep Sharma),
manjit Judge.
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