Himachal Pradesh High Court
Nagender Singh vs State Of H.P on 28 February, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 250 of 2010.
.
Date of Decision: 28.2.2017.
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[
Nagender Singh ...Petitioner.
Versus
State of H.P. .......Respondent.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
For the petitioner:
rt Mr. V.S. Rathore, Advocate.
For the respondent: Mr. P.M. Negi, Additional Advocate General with
Mr. Ramesh Thakur, Deputy Advocate General.
____________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 397 read with Section 401 of the Cr.PC, is directed against the judgment dated 30.11.2010, passed by the learned Additional Sessions Judge, Mandi, District Mandi, HP, in Criminal Appeal No. 34 of 2007, affirming the judgment and order dated 22.9.2007/24.9.2007, passed by the learned Judicial Magistrate, Ist class, Court No. II, Mandi, District Mandi, HP, in Police Challan No. 47-I/2004/27-II/2004, whereby the accused-
petitioner has been sentenced as per description given herein below:-
"Section 332 of IPC To undergo simple imprisonment for six months and to pay fine of Rs. 1000/- and in default of payment of fine, to further undergo simple imprisonment for a period of fifteen days.
Whether reporters of the Local papers are allowed to see the judgment?::: Downloaded on - 15/04/2017 21:57:20 :::HCHP -2-
Section 506 of the IPC To undergo simple imprisonment for six months and to pay fine of Rs. 500/- and in default of payment of fine, to further .
undergo simple imprisonment for a period of fifteen days.
2. Briefly stated facts as emerge from the record are that the complainant namely Devi Saran, who at that relevant time was working as Lineman in Himachal Pradesh State Electricity Board, received an order of disconnection of electricity supply of certain houses including of the house of present petitioner-accused. As per the complainant, Surender Singh (PW3) (Junior Engineer) directed him to implement the rt aforesaid order dated 5.1.2004 of disconnection of electricity of the house of the accused. Accordingly, on 17.1.2004, the complainant along with labourer namely Surender Singh PW5 disconnected the electricity supply of the house of Nagender Singh, S/o of Sh. Sidhu Ram.
Around, 2.30pm when Devi Saran i.e. the complainant, was cutting the electricity wires of the house of Tej Singh, accused came there and enquired from the complainant that why did he disconnect the electricity supply to his house and thereafter, he picked up plier lying on the ground and gave a blow of the same on the right ear of the complainant. The complainant further alleged that while doing so, accused also took away electricity disconnection order from him. The complainant further complained that while leaving the spot, accused also threatened him to kill him. Subsequently, the complainant ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP -3- reported the matter to Junior Engineer Surender Singh (PW3), who advised him to report the matter to the police and in the aforesaid .
background, entire matter came up before the police, who on the basis of aforesaid complaint having been lodged by the complainant, registered the formal FIR Ext.PW1/A against the accused. After completion of the investigation, police, presented the charge sheet of against the accused in the competent court of law under sections 332, 353, 506 and 189 of the IPC.
3. Learned Judicial Magistrate, Ist Class, Court No. II, Mandi, rt District Mandi, HP, after satisfying itself that prima facie case exists against the accused person, framed charges against the accused, for having committed offences punishable under Sections 332, 506 and 189 of the IPC, to which he pleaded not guilty and claimed trial.
Learned trial Court on the basis of evidence adduced on record by the respective parties, found the accused guilty of having committed offences under the aforesaid Sections and accordingly, convicted and sentenced him as per description already given above. However, fact remains that petitioner accused was acquitted of the charge framed against him under Section 189 of the IPC.
4. The present petitioner-accused being aggrieved with the judgment of conviction passed by the learned trial Court, filed an appeal under Section 374 of Cr.PC before the Court of learned ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP -4- Additional Sessions Judge, Mandi, District Mandi, HP, who vide judgment dated 30.11.2010, dismissed the appeal preferred by the .
petitioner-accused, as a result of which judgment of conviction came to be upheld. In the aforesaid background, the present petitioner approached this Court seeking his acquittal after setting aside the judgment of conviction recorded by the courts below.
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5. Mr. Virender Singh Rathore, Advocate, representing the petitioner, vehemently argued that the judgment of conviction and sentence recorded by the courts below, are not sustainable as the rt same are not based upon the correct appreciation of evidence available on record and, as such, same deserves to be quashed and set-aside. While referring to the impugned judgments passed by the courts below, Mr. Rathore strenuously argued that bare perusal of the judgments suggest that courts below failed to appreciate the evidence in its right perspective and the judgments are based upon mere conjectures and surmises. Mr. Rathore further contended that no conviction, if any, could be recorded by the courts below on the basis of evidence adduced on record by the prosecution because bare reading of the same clearly suggests that there are material contradictions and as such, same could not be taken into consideration, especially, while holding the petitioner guilty of having committed offences under Sections 332 and 506 of the IPC. With a ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP -5- view to substantiate his aforesaid argument, Mr. Rathore specifically invited attention of this Court to the statement of PW1, who in his .
statement stated that incident took place at about 2:30 or 3:30pm, whereas PW5 in his statement stated that incident had taken place at 10:00am. He also stated that PW1, nowhere stated that plier was not snatched from him and hence, it is not understood from where court of below came to conclusion that prosecution was able to prove that the complainant was hit by the petitioner accused by means of a plier.
While concluding his arguments, Mr. Rathore specifically invited rt attention of this Court to the Statement of PW5 i.e. so called independent witness to suggest that his statement could not be taken into consideration by the court below because he admittedly stated that he is making the statement in favour of the complainant, as he is an employee of the department. Mr. Rathore, also stated that none of the independent witness supported the case of the prosecution; rather they turned hostile. While referring to the statement of PW2, Soma Patyal. Mr. Rathore, forcefully contended that she herself admitted that they are not in talking terms with the accused as they have inimical relation. In the aforesaid background, Mr. Rathore prayed for acquittal of the petitioner accused after setting aside the judgment of conviction recorded by the courts below.
::: Downloaded on - 15/04/2017 21:57:20 :::HCHP -6-6. Per contra, Mr. P.M. Negi, learned Additional Advocate General, duly assisted by Mr. Ramesh Thakur, learned Deputy .
Advocate General, representing the respondent-State supported the impugned judgments passed by 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 of evidence available on record and prosecution has been able to prove its case beyond reasonable doubt and courts below have very meticulously dealt with each and every aspect of the matter. With a rt view to substantiate aforesaid arguments having been made by the counsel representing the petitioner, Mr. Negi, made this Court to travel through the entire evidence led on record by the prosecution to state that there are no contradictions as alleged by the learned counsel representing the petitioner, rather, all the prosecution witnesses unequivocally stated that accused gave blow of plier on the right ear of the complainant and as such, there is no illegality and infirmity in the judgment of conviction recorded by the courts below. He further contended that it stands duly proved on record that at that relevant time, the complainant was on official duty and he was obstructed by the petitioner accused from discharging his duty and in that process, the accused manhandled him and gave a blow of plier, as a result of which, the complainant suffered simple injury which was also proved on ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP -7- record by the prosecution by placing reliance on medical evidence.
He further contended that in the given facts and circumstances of the .
case, no interference, whatsoever, of this Court, is warranted, especially, in view of the concurrent findings of facts as well as law, recorded by the courts below. Mr. Negi, also reminded this Court of its limited powers while exercising its revisionary powers under Section 397 of of the Cr.PC, to 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 rt 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."
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 ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP -8- instant case, where accused person 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.
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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, rt (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 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 ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP -9- 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 .
occasion to peruse entire material adduced on record by the prosecution as well as statements of prosecution and defence witnesses, perusal whereof clearly suggests that proseuciton successfully proved on record that on the relevant date, the of complainant was on official duty. Prosecution led on record ample evidence to suggest that the complainant had gone to the spot of rt incident to implement the order passed by his superior, whereby he was called upon to disconnect the electric meter of those persons who had not paid the electricity charges. Moreover, as emerge from the record, there is no dispute, if any, qua the presence of the complainant on the spot of accident in his official capacity and as such, this Court sees no need to examine the matter from that angle. Question which remains to be decided by this Court is "whether the complainant who was in the process of implementing official orders was estopped/obstructed by the petitioner accused or not or whether he was assaulted by the accused while discharging official duty?"
11. Prosecution with a view of prove its case examined as many as thirteen witnesses and defence examined one witness. PW1 Devi Saran is the complainant, whereas PW2 Smt. Soma Patyal and PW5 Surender Singh are the alleged eye witnesses. PWs 3 and 4 ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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(Surender and Bheem Singh) are formal witnesses, who produced the disconnection order as well as record. Another so called independent .
witnesses PW6 namely Krishan Chand and PW7 Shankar Dass were declared hostile as they did not support the case of the prosecution.
PW8 Dr. Anuradha Shrama, conducted medical examination of the complainant and Dr. D.P Handa (PW11) examined the complainant on of the advice of PW8 Anuradha Sharma,. Similarly, PWs 9 and 10 are the official witnesses, who produced certain record and proved the same.
PW12 Mast Ram registered the FIR Ext.PW1/A, whereas PW13 ASI Paras rt Ram conducted the investigation.
12. PW1 Devi Saran (complainant) deposed before the Court that he and Baildar namely Surinder Singh were directed to disconnect the electricity connection of Tek Chand, Goverdhan, Tej Singh, Sidhu Ram and 3-4 other persons. He also stated that they had disconnected the connection and had gone to the house of Goverdhan to reconnect the electricity supply. He further stated that he had gone to the house of the accused Tej Singh at about 2:30-2:45pm. He further testified that when he was putting the tape on the wire, the accused came and inflicted a blow on his right ear by means of his plier. He further stated that he was rescued by Surender Singh. It has also come in the statement that while leaving the spot, accused abused him and threatened to shoot him. He also stated that he ran towards the house ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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of the Goverdhan and informed the J.E. about the incident. In his cross examination, when he was confronted with his previous statement .
made to the police, wherein it was not recorded that he was deputed to disconnect the electricity connection of Tek Chand, Goverdhan Sidhu Ram and 3-4 other persons, he stated that his statement was recorded at the spot around 2:30-3:00pm and he had disconnected of the connection of Goverdhan and thereafter, he went towards the village. He also stated that there was no pole near the house of Tej Singh and the wire passed from one house to other. He had seen the rt accused in his house. However, he denied that accused had not visited the house of Tej Singh and he had fallen. He also stated that he was not on talking terms with the accused as he did not know him.
PW1 also stated that he had disconnected the electricity connection from the pole.
13. PW5 Surender Singh, who happened to be with the complainant at the time of the disconnection deposed before the Court that he along with the complainant, visited the village Shilla-
Kipper, for disconnecting the electricity connections. He further stated that when he was disconnecting the line, accused came and inquired as to why his connection was disconnected and thereafter accused picked up the plier of the lineman and inflicted a blow of the same on his right year, as a result of which, he suffered injury. He also ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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corroborated the version put forth by the complainant that while leaving, accused threatened to kill the complainant. In his cross .
examination, he specifically stated that incident took place at 10 am.
He also stated that at that relevant time one connection of the accused and one connection of the owner of the house was disconnected. He also stated that accused was present in his house of and the electricity connection was disconnected in his presence.
14. Conjoint reading of the aforesaid statements having been made by PW1 and PW5 who happened to be present at the spot at rt the time of the incident, certainly compels this Court to conclude that version put forth by the complainant as well as PW5 is contradictory and as such, not trustworthy. Close scrutiny of the statement of aforesaid PWs clearly suggests that there are material contradictions in the statements made by both the persons. PW1 (complainant) specifically stated that incident took place at about 2:30-3:00 pm, and at the time of disconnection, accused was present in the house and electricity connection was disconnected in his presence. On the other hand, PW1 stated that he had disconnected all connections and had gone to the house of the Goverdhan, who had produced the receipt of payment of electricity. He further stated that he had gone to the house of the Tej Singh at about 2:30-2:45 pm and when he was putting tape on wire, accused came and inflicted a blow by means of plier ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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and was rescued by the Surender Singh. Interestingly, PW5, who was present on the spot of incident along with the complainant .
categorically admitted in his cross examination that incident took place at 10:00am and electricity connection of the accused was disconnected in his presence. If the complainant had disconnected the connection of the accused at 10:00am in his presence, it remains of unexplained that why complainant kept mum for approximately 3½ hours, when allegedly the accused gave blow of plier on the right ear of the complainant. As per own statement of PW1, accused came at rt spot around 2:30-2:45pm and inflicted a blow on his right ear by means of his plier. Similarly, it emerge from the statement of PW5 that electricity was disconnected by Surender Singh PW5, not by the complainant because PW5 specifically stated that when he was disconnecting the line, accused came and enquired as to why the electricity connection was disconnected and accused picked up a plier of lineman and inflicted a blow on his right ear, as a result of which, he suffered injury. If the version of PW5 as put forth by him is taken to be true, it certainly compels this Court to presume that line was disconnected by PW5 and blow of plier on the right ear of the lineman i.e. complainant, was given then and there i.e. at 10:00am. But interestingly, PW1 narrated entirely different version and nowhere corroborated the case as put forth by PW5. Similarly, statement of PW5 ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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nowhere corroborates the version put forth by PW1. As per PW1 after disconnecting the electricity connection of the accused, he along with .
PW5 Surender Singh was in process of connecting the electricity of one Goverdhan Singh and at about 2:30 -2:45pm, accused came and inflicted a blow of plier on his right ear.
15. This Court, after carefully examining the aforesaid material of witnesses, who were actually present on the spot at the time of incident, has no hesitation to conclude that learned courts below fell in grave error while recording conviction of the petitioner accused under rt Section 332 and 506 of the IPC on the basis of evidence as has been discussed above. Statement of aforesaid PWs is not only contradictory to each other, rather there is no consistency in the same and same by no means, could be made basis for recording conviction of the petitioner accused.
16. PW2 Soma Patyal, who is another independent witness stated that on 17.1.2004 around 1PM, Devi Saran (PW1) along with one helper came to her house and disconnected the supply of electricity.
She further stated that since she had paid the electricity bill, her son brought the lineman to her house around 1:30 pm and showed the electricity receipt to the lineman, whereupon he reconnected the supply of electricity to her house. She further stated that thereafter, he went to the house of Tej Singh. It has also come in his statement that ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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after some time, she heard some noise and soon thereafter, lineman came running to their house and disclosed her that accused had given .
a plier blow on his right ear. She further stated that lineman made a telephonic call to his office. She also stated that in the meanwhile, accused also came and asked him to come out.
17. In her cross examination, PW2 specifically admitted that of father of the accused had expired long time back and since then, they are not in talking terms with him. She further stated that they were having land dispute.
rt She also admitted that she was having prier acquaintance with the complainant as he used to come to the village for electricity repair. She again stated that around 1:30 pm, she heard noise and soon thereafter, the complainant had come to her house.
She denied the suggestion put to her that lineman told her that she had sustained injury by fall from the aforesaid pole.
18. Careful perusal of version put forth by PW2, nowhere corroborates the version put forth by the material prosecution witnesses No. 1 and 5 because she nowhere stated that she saw the accused hitting the complainant, rather she said that after connecting his electricity connection, lineman (complainant) went to the house of the accused. She further stated that after some time, she heard some noise and soon after, lineman came running to her and disclosed that accused gave blow of plier on his ear. She also admitted in her cross ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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examination that they are not having cordial relations with the accused and they are not in talking terms. Similarly, PW2 stated that .
the complainant had come to connect her electricity meter at 1:30 pm. As per PW5, who was physically present with the complainant at the time of disconnection, incident took place at 10:00 am. After carefully perusing the version put forth by aforesaid PW2, this Court is of of the view that the learned courts below erred in placing undue reliance upon the statement of PW2, who was not present at the spot of incident at the time of alleged incident. Moreover, it stood duly proved rt on record that PW2 had inimical relation with the accused and they had long pending litigation in the Court and as such, no much reliance could be placed on her version.
19. Similarly, PW3 Surender, while deposing before the court below, stated that he received intimation from the complainant around 2:30 pm on 17.1.2009 with regard to the alleged incident of beating given to the complainant by the accused. PW6 Krishan Chand stated that for the last two years, he was posted as Sanskrit teacher in Govt. Middle School, Bindrabani and about two years back, around 11:00 pm when he was in his class, he heard some noise. He came out but he saw nothing. He further deposed that after sometime, he saw one person going towards the house of Soma, who later on told him that the said man had come to make telephone call. In his cross ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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examination by the prosecution, this PW admitted that he had heard sound of quarrel but he denied that the complainant had disclosed his .
name as Devi Saran and told him that the accused gave a blow of plier to him. Similarly, in his cross examination by the defence, this witness denied that the lineman had told that he had sustained injuries from the fall from the pole.
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20. Another independent witness Shankar Dass PW7 stated that about 1½ years back when he was in school, he heard some noise and came out and saw that one man was running to the house rt of Soma Patyal. He also stated that Soma had told him that he had come to make a call. In his cross-examination, by the prosecution, PW7 denied that one official came running to them however; he self stated that he had gone to the house of Soma to make a call and later on, he came to know that he was a line man. He also stated that though police had come to the spot in the evening but he was not enquired about this incident by the police. If the statements of aforesaid witnesses PW6 and 7, who were declared hostile are read juxtaposing each other, there is a clear cut contradiction with regard to the timing of the alleged incident. Moreover, none of the independent PWs stated that they saw accused giving blow of plier on the ear of the complainant. Both the aforesaid PWs stated that on hearing noise, they went out and saw person running towards house of one Soma.
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They nowhere stated that they saw the complainant Devi Saran running towards the house of Soma, rather they stated that later on .
Soma told them that lineman had come to make a telephonic call.
This court after carefully examining the aforesaid prosecution evidence in detail sees substantial force in the arguments having been made by the counsel representing the petitioner that there are material of contradictions in the statements of the PWs and certainly, those were insufficient to hold the petitioner accused guilty of having committed offence under Section 332 of the IPC. There are material contradictions rt in the versions put forth by PW1 and PW5, who happened to be at the spot at the time of incident. Both the PWs have narrated altogether different versions, especially with regard to the timing of the incident.
Apart from the above, as has been noticed above, version put forth by PW5 Surender Singh could not be accepted by the Courts below at all in view of his candid admission having been made in cross examination, wherein he unequivocally admitted that since he is an employee of electricity department, he is making statement in favour of the complainant.
21. True it is, medical evidence led on record in the shape of MLC Ext.PW8/A, which was further proved in accordance with law by Dr. Anirudh Sharma, who appeared as PW8, suggests that the complainant sustained minor injuries, which could be caused by blunt ::: Downloaded on - 15/04/2017 21:57:20 :::HCHP
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weapon but same may not be sufficient to conclude that injury as referred above, was caused by the petitioner-accused. Since .
prosecution miserably failed to connect the petitioner accused with injury allegedly suffered by the complainant, learned courts below erred in recording the conviction of the petitioner accused by holding him guilty of having committed offences under Section 332 and 506 of of the IPC. Interestingly, there is no evidence worth the name led on record with regard to threat, if any, advanced to the complainant by the accused while leaving the spot of incident save and except rt statement of PWs 1 and 5, whose statements otherwise appear to be untrustworthy. None of the PWs other than PW1 and PW5 stated anything with regard to the threat advanced to the complainant.
Under Section 332 of the IPC, prosecution was necessarily required to prove on record that accused voluntarily caused hurt to the complainant while he was discharging his public duty as public servant.
Though evidence on record suggests that prosecution was successful in proving that at that relevant time, the complainant was on official duty but certainly evidence available on record, nowhere suggests that prosecution was able to prove on record that accused voluntarily caused hurt to the complainant and as such, conviction recorded by the courts below under Section 332 and 506 of the IPC, cannot be allowed to sustain.
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22. Consequently, in view of the detailed discussion made herein above, this Court is of the view that learned courts below failed .
to appreciate the evidence in its right perspective and wrongly held petitioner guilty of having committed offences under Sections 332 and 506 of the IPC, which by no means was sufficient for holding him guilty. .
Accordingly, present petition is allowed and judgments passed by the of Courts below are quashed and set-aside. Petitioner accused is acquitted of the charges so framed against him. Bail bonds are discharged. Interim order, if any, vacated. Pending applications, if any, rt also stand disposed of.
28th February, 2017 (Sandeep Sharma),
manjit Judge.
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