Himachal Pradesh High Court
Relu Ram vs State Of H.P on 30 November, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 30th DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No.65 of 2012
.
Between:
SH. DESH RAJ, SON OF SH.
RELU RAM, RESIDENT OF
VILLAGE JANGEL, SUB TEHSIL
DHARAMPUR, DISTRICT MANDI,
H.P.
....PETITIONER
(BY MR. VIJAY VERMA, ADVOCATE)
AND
STATE OF H.P.
....RESPONDENT
(BY SUDHIR BHATNAGAR AND
MR. DESH RAJ, ADDITIONAL
ADVOCATE GENERALS WITH
MR. NARINDER THAKUR AND
MR. GAURAV SHARMA, DEPUTY
ADVOCATE GENERALS)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Instant Criminal Revision Petition filed under Section 397 read with Section 401 of Cr.P.C, lays challenge to judgment dated 03.03.2012, passed by learned Additional Sessions Judge, Mandi, District Mandi, H.P., in Criminal Appeal No.31 of 2010, titled Desh Raj vs. State of H.P., affirming the judgment of conviction and order of sentence dated 23.03.2010, passed by learned Judicial ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 2 Magistrate, 1st Class, Sarkaghat, District Mandi, H.P. in Police Challan No. 157-II/2002, whereby learned court below while holding .
the petitioner/accused (hereinafter referred to as 'accused') guilty of having committed offence punishable under Section 332 of IPC, convicted and sentenced him to undergo one year rigorous imprisonment and pay fine of Rs.2000/- and in default of payment of fine, to further undergo two months simple imprisonment.
2. Precisely, the facts as emerge from the record are that PW-1, complainant Bir Singh, lodged a written complaint to Naib Tehsildar Ext. PW-1/A, which was sent to Police Station and thereupon FIR Ext.PW-7/A, was registered against the accused under Section 332 of IPC, alleging therein that while he was posted as Patwari in Patwar Circle, Bharori and was discharging his duty on 02.04.2002, at about 2.30. PM., accused Desh Raj came to his office and asked him to issue certificate for getting water connection.
Complainant told the accused that his monthly meeting was fixed in the office of Naib Tehsildar and certificate would be issued after meeting. However, accused told the complainant that he was demanding bribe. Complainant objected to aforesaid allegation levelled by accused, on which, accused started hurling abuses and thereafter gave beatings to him. Allegedly, accused inflicted blow on the stomach of complainant and also threatened to break his leg.
Banka Ram- PW-2 and Rup Lal PW-5 rescued the complainant from the accused. Besides above, accused also tried to tear papers lying ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 3 on the table. After having received written complaint from the Naib Tehsildar, as has been taken note hereinabove, investigation was .
conducted by HC PW-10, Kanshi Ram, who after having visited the spot, prepared site plan Ext. PW-10/A. Medical examination of complainant was conducted by Dr. Sneh Lata, PW-8, who while issuing MLC Ext. PW-8/B found complainant to have suffered injury caused by means of blunt edged weapon. Appointment order and posting order of the complainant Ext. PW-4/A and Ext.PW-4/B, were produced by Durga Dass, PW-4. After completion of investigation, police presented challan in the competent court of law, who having found prima facie case against the accused, charged him under Section 332 of IPC, to which he pleaded not guilty and claimed trial.
3. Prosecution with a view to prove its case, examined as many as 10 witnesses, whereas, accused in his statement recorded under Section 313 Cr.P.C, denied the prosecution case in its entirety and stated that complainant demanded Rs.100/- from him as bribe. He stated that when he refused to pay bribe, he was given beatings by complainant and was thrown out of the office. He also deposed that he filed complaint before the police, but no action was taken by the police. In his defence, he got the statements of two persons, namely Sant Ram and Vijay Pal recorded.
4. Learned trial court on the basis of evidence led on record by the respective parties, held accused guilty of having committed offence punishable under Section 332 of IPC and ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 4 accordingly, convicted and sentenced him, as per description given hereinabove.
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5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by court below, accused preferred an appeal in the Court of learned Sessions Judge, Mandi, which came to be dismissed vide judgment dated 03.03.2012. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting aside the judgment of conviction and order of sentence recorded by courts below.
6. Mr. Vijay Kumar Verma, learned counsel representing the petitioner/accused while making this Court to peruse the entire evidence led on record by the prosecution vis-a-vis reasoning assigned by courts below while holding the accused guilty of having committed offence punishable under Section 332 of IPC, vehemently argued that since there are material contradictions and inconsistencies in the statements made by prosecution witnesses, courts below erred in concluding the guilt of accused punishable under Section 332 of IPC. Mr. Verma, made a serious attempt to persuade this Court to agree with the contention that since it never came to prove on record that at the time of alleged incident, complainant was discharging his official duty, there was no occasion otherwise for courts below to hold accused guilty of having committed offence punishable under Section 332 of IPC. Lastly, Mr. ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 5 Verma, contended that though this is a clear-cut case of acquittal , but yet if this Court doesn't agree with the submissions made by .
him, benefit of Probation of Offenders Act, may be extended in favour of the petitioner/accused on account of the fact that alleged incident had happened in the year 2002 and during this period, accused has already suffered continuous trauma on account of pendency of criminal case against him and in case, after 19 years of incident, he is sent behind bars, it would cause irreparable loss to him as well as his family, which is wholly dependent upon him.
7. Mr. Sudhir Bhatnagar, learned Additional Advocate General while supporting the impugned judgment of conviction and order of sentence recorded by courts below, strenuously argued that bare perusal of statements of prosecution witnesses nowhere suggests inconsistencies and contradictions, rather all the material prosecution witnesses have stated in unison that petitioner/accused gave beatings to complainant while he was discharging his official duty and as such, no fault, if any, can be found with the findings recorded by courts below. While responding to the prayer made on behalf of petitioner/accused for extension of benefit of Probation of Offenders Act, learned Additional Advocate General argued that person like accused doesn't deserve to be extended benefit of the Probation of Offenders Act because in such like cases, strong message is required to be sent to the disgruntled persons like ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 6 petitioner to not to misbehave with the public officials while they are discharging their official duties .
8. Having heard learned counsel representing the parties and perused the evidence led on record by respective parties vis-a-
vis reasoning assigned by court below while upholding the judgment of conviction and order of sentence passed by trial court, this Court finds no merit in the submissions of Mr. Vijay Kumar Verma, learned counsel representing the petitioner that courts below have failed to appreciate the evidence in right perspective, rather this Court finds that prosecution has successfully proved beyond reasonable doubt that on the date of alleged incident, complainant was given beatings while he was discharging his official duties.
Though, as has been taken note hereinabove, prosecution in toto examined 10 witnesses to prove its case, but to ascertain the guilt of the accused, statements of PW-1, Bir Singh, PW-2 Banka Ram, PW-3 Vinod Kumar and PW-5 Rup Lal are relevant. Besides above, PW-6 Sharat Singh, Naib Tehsildar, who was first person to receive complaint from the complainant, is also relevant.
9. PW-1, Bir Singh deposed that while he was discharging government duty on 2.4.2002, at 2.30 P.M., the accused came and demanded certificate for installing water tap. He told the complainant that he has to leave to attend a meeting in the office of Naib Tehsildar and such certificate would be issued after visiting the spot. He deposed that accused told him to do his work at that ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 7 moment and thereafter he caught him by the neck and inflicted blow on his stomach. He deposed that he was rescued by persons .
namely Rup Lal, Om Chand and Banka Ram. He also stated that accused threatened to kill him. Cross-examination conducted upon this witness nowhere suggests that defence was able to shatter the testimony of this witness or was able to extract something contrary, which was stated in his examination-in-chief. In this cross-examination, this witness admitted that there are other shops, but he did not remember names of the owners of those shops, but such admission, if any, on his part is of no relevance because person namely Sh. Banka Ram, whose shop is located in front of Patwarkhana, has corroborated the version put forth by PW-
1, complainant Bir Singh with regard to beating given to him by the accused. PW-1, complainant, in his cross-examination denied that shop of Banka Ram is located after ten shops from Patwarkhana.
He also denied that Banka Ram came after 30 minutes of the altercation. He also admitted that Kanungo was already present inside the Patwarkhana and probably he had asked for tea. This witness has categorically stated in his cross-examination that PW-2, Banka Ram had come to collect glasses. He denied that he had demanded Rs.100/- for issuing certificate. He also denied that he had earlier entered mutation of one alive lady. This witness though admitted that a criminal case was instituted against him for the commission of offences punishable under Sections 420, 467, 468 & ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 8 471 of IPC, but categorically denied that he and Kanungo had dragged the complainant out of Patwarkhana and Banka Ram had .
given beatings to the complainant. While denying the suggestion put to him that he was not beaten by the accused, this witness categorically denied that he did not suffer injury in the scuffle.
10. PW-2, Banka Ram, fully supported the version of the complainant. He categorically deposed that PW-1 Bir Singh, was present in the office on 02.04.2002, at about 2.30 P.M., when accused caught him by his neck and slapped him. He deposed that he rescued the complainant from the accused. This witness further deposed that four people were inside the Patwarkhana at the time of alleged incident including accused. However, this witness specifically denied the suggestion put to him that at the time of alleged incident, he was present in the shop and he went to Patwarkhana after having heard noise. This witness also denied that complainant and accused had scuffle on the road. He also denied that complainant had demanded Rs.100/- from the accused and had given beatings to him. This witness categorically supported the version of the complainant that he had suffered injury on the face, on account of beatings given by the accused. While denying the suggestion put to him that he was inimical to the accused, this witness categorically stated that complainant Bir Singh, had not beaten the accused in his presence.
::: Downloaded on - 31/01/2022 23:21:46 :::CIS 911. PW-5, Rup Lal, deposed that on the date of alleged incident, he was called to Dharampur for disbursing wages and .
complainant was present in the office when the accused came and started demanding certificate for taking connection for water tap.
He deposed that complainant told accused to come after sometime, but thereafter, they started beating each other. Though, this witness was declared hostile, but if his statement is read in its entirety, it clearly establishes factum with regard to scuffle inter se complainant and accused.
r In his cross-examination, this witness admitted that complainant was discharging his official duties and he had suffered injury in the incident. He also stated in his cross-
examination that 3-4 people were also present inside Patwarkhana.
This witness also denied suggestion put to him that complainant demanded Rs.100/- from the accused. Most importantly, this witness denied in his cross-examination that accused was beaten by the complainant. Similarly, PW-3 Vinod Kumar was also declared hostile, but if cross-examination conducted upon this witness is perused in its entirety, it also clearly establishes on record factum with regard to beatings given by the accused to the complainant while he was discharging his duties. If statements made by all the prosecution witnesses, as discussed hereinabove, are read in-
conjunction, juxtaposing each other, this Court finds it difficult to agree with the contention of Mr. Vijay Kumar Verma, learned counsel representing the petitioner that there are material ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 10 contradictions and inconsistencies, rather this Court finds from the statements made by prosecution witnesses that they all in unison .
categorically deposed that at the time of alleged incident, petitioner was discharging his official duties and he was given beatings by the accused and as such, there appears to be no justification at all to discard the testimony of the prosecution witnesses, as taken note hereinabove.
12. DW-1 Sant Ram and DW-2 Vijay Pal, examined in defence by the accused, nowhere supported the version put-forth by accused in his statement recorded under Section 313 Cr.P.C.
Moreover, if the statement made by accused under Section 313 Cr.P.C is perused, he nowhere stated that DW-1, Sant Ram and DW-2, Vijay Pal were present on the spot at the time of alleged incident and as such, courts below rightly proceeded to conclude that presence of aforesaid defence witnesses, namely Sant Ram and Vijay Pal, on the spot is doubtful. Moreover, DW-1 Sant Ram and DW-2 Vijay Pal deposed that complainant had given beating to the accused with the help of scale, but such version of them is not supported by any of the persons present on the spot. Medical evidence adduced on record clearly reveals that in the alleged incident, complainant suffered simple injuries. PW-8, Dr. Sneh Lata, who had an occasion to conduct medical examination, while proving MLC Ext.PW-8/B, categorically deposed that she had noticed abrasions on the person of the accused, which could be caused in a ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 11 scuffle. She also stated that she noticed lacerated wound on the ring finger of right hand and a`brasions on the right arm of the .
complainant which clearly corroborates the version of the complainant that he was injured by the accused.
13. Consequently, in view of the detailed discussion made hereinabove, this Court finds no illegality and infirmity in the judgment of conviction and order of sentence recorded by courts below and as such, same are upheld. However, having taken note of the fact that alleged incident had taken place 19 years back and during this period, criminal case remained pending against petitioner/accused and as such, there appears to be merit in the claim of learned counsel representing the petitioner that petitioner has already undergone trauma of pendency of criminal case against him. Besides above, this Court also finds that at the time of alleged incident, petitioner was young and during the pendency of criminal proceedings against him, he has turned 57 years old; and in case, at this stage, he is sent behind bars, he is not only the person, who would suffer, rather his entire family would suffer and as such, it is a fit case where benefit of Section 4 of the Probation of Offenders Act, can be extended. Reliance is 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.::: Downloaded on - 31/01/2022 23:21:46 :::CIS 12
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). 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 r 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."
14. The reliance is also placed upon Hon'ble Apex Court judgment Hari Kishan and State of Haryana versus Sukhbir Singh 1988 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 ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 13 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/-
compensation to Joginder. The High Court as 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 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 ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 14 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 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 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 r 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."
15. In view of the aforesaid law as well as submissions having been made by Mr. Vijay Verma, learned counsel appearing on behalf of the accused 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 ::: Downloaded on - 31/01/2022 23:21:46 :::CIS 15 payment of adequate compensation which would be determined after the receipt of the report of Probation Officer.
.
16. Accordingly, Registry is directed to call for the report of the Probation Officer, Mandi, District Mandi, H.P. on or before 07.01.2022. Registry to list this matter on 07.01.2022.
30th November, 2021 (Sandeep Sharma)
(reena) Judge
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