Himachal Pradesh High Court
Bharti Rana vs State Of Himachal Pradesh on 18 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 47 of 2009 a/w
Cr.Appeal No. 213 of 2009.
Date of Decision: 18.11.2016
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______________________________ ________________________________________
[
1. Cr.R. No. 47 of 2009
Bharti Rana .........Petitioner.
Versus
State of Himachal Pradesh ..........Respondent.
of
2. Cr.A. No.213 of 2009
State of HP .........Appellant
rt Versus
Bharti Rana ..........Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the petitioner: Mr. V.S. Rathore, Advocate for the
petitioner.
For the respondent: Mr. P.M. Negi, Additional Advocate
General with Mr. Ramesh Thakur, Deputy
Advocate General, for the respondent(s)-
State.
_______________________________________________________________
Sandeep Sharma, J. (Oral)
Criminal revision petition No. 47 of 2009 filed under Section 397 of Cr.PC read with Section 401 of the Cr.PC, is directed against the judgment dated 23.3.2009, rendered by the learned Sessions Judge, Chamba Division, Chamba, HP, in Criminal Appeal No.20/2008, Whether reporters of the Local papers are allowed to see the judgment? No. ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP -2- modifying the judgment of conviction recorded by the learned Judicial Magistrate, Ist Class, Dalhousie, District Chamba, H.P., in Cr. Case .
No.138-II of 1999, whereby the petitioner herein was held guilty of having committed offences under Sections 353 and 332 of the IPC and accordingly, was convicted and sentenced to undergo simple imprisonment for one year and to pay fine of Rs. 2000/- under Section of 332 of the IPC and in default of payment of fine, to undergo further simple imprisonment for three months and under Section 353 of the IPC, simple imprisonment for one year and to pay fine of Rs. 2000/- and in rt default of payment of fine, to further undergo simple imprisonment for three months. However, fact remains that the petitioner herein feeling aggrieved and dis-satisfied with the judgment passed by the learned trial Court preferred an appeal before the learned Sessions judge, who vide judgment dated 23.3.2009, modified the judgment by convicting and sentencing the petitioner only under Section 332 of the IPC and imprisonment till the rising of the Court and to pay a fine of Rs. 2000/-
and in default, to further undergo simple imprisonment for three months, whereas, criminal appeal No. 213 of 2009 has been filed by the State under Section 377 of the Cr.PC, against the judgment dated 23.3.2009, passed by the learned Sessions Judge Chamba in criminal appeal No. 20/2008, for enhancement of sentence of the petitioner.
::: Downloaded on - 15/04/2017 21:35:06 :::HCHP -3-2. Since both the cases have arisen from the common judgment dated 23.3.2009 passed in Criminal Appeal No. 20/2008, this .
Court vide order dated 4.10.2016 clubbed the same for final adjudication together, accordingly, same are being taken for disposal together since common question of law and facts are involved.
3. Briefly stated facts necessary for adjudication of the case of are that on 18.5.1999, complainant Suresh Kumar lodged report with police Station R.H. Chowari, District Chamba, that petitioner-accused gave beatings to him while he was discharging his duty as a public rt servant. Police on the basis of aforesaid compliant registered FIR i.e. Ext.PA and thereafter carried out investigation. After the completion of investigation, police presented the challan under Sections 353 and 332 of IPC, in the competent Court of Law.
4. Learned Judicial Magistrate, Ist Class, Dalhousie, District Chamba, HP, after satisfying itself that prima facie case exists against the accused, put a notice of accusation, to which she pleaded not guilty and claimed trial. Learned trial Court on the basis of evidence adduced on record by the prosecution, found the accused guilty of having committed offence under Sections 353 and 332 of IPC and accordingly, convicted and sentenced her as per description already given above.
::: Downloaded on - 15/04/2017 21:35:06 :::HCHP -4-5. 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 Sessions Judge, Chamba Division, Chamba, HP, who vide judgment dated 23.3.2009, modified the appeal (as has been mentioned herein above).
Hence, this criminal revision petition before this Court.
of
6. Mr. Virendrer Rathore, Advocate representing the petitioner-accused vehemently argued that the impugned judgments of conviction and sentence recorded by the Courts below are not rt sustainable as the same are not based upon the correct appreciation of evidence available on record and as such, same deserve to be quashed and set-aside. While referring to the judgments passed by the Courts below, Mr. Rathore further contended that the entire prosecution evidence led on record is not worth lending any credence being unreliable and untrustworthy and as such, no conviction could be recorded on the basis of the same. Mr. Rathore further contended that both the courts below miserably failed to determine the question as to whether the complainant was performing the official duty when the alleged dispute in question occurred between the parties. With a view to substantiate his aforesaid argument, Mr. Rathore, invited attention of this Court to the fact that it has come in the statement of PW3 Rattan Chand that at that relevant time, the file was in his custody, which was ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP -5- demanded by the petitioner and he took out the file in question from the Almirah and showed to the petitioner. Mr. Rathore stated that in .
view of the aforesaid material fact, there was no occasion for the petitioner to ask file from the complainant Suresh Kumar. He also stated that it stands nowhere proved that Suresh Kumar (complainant ) was in charge of the file and same was in his custody, rather it is ample clear of from the evidence on record that Suresh Kumar prevented the petitioner from taking the file to SMO for initiating action against Kanchan Rana (nurse), who had in fact encroached upon the hospital rt land by constructing the septic tank. Mr. Rathore, with a view to prove motive of complainant Suresh Kumar in falsely implicating the petitioner accused, invited attention of this Court to the examination in chief as well as cross-examination conducted on prosecution witnesse Suresh Kumar (complainant), whereby he has admitted his relation with Kanchan Rana, who allegedly raised construction on govt. land by raising septic tank. While concluding his arguments, Mr. Rathore forcefully contended that bare perusal of the judgments vis-a vis statement adduced on record by the parties clearly suggest that both the courts below committed grave irregularity and illegality by ignoring the fact that both the parties (complainant as well as the accused) are public servants and complaint, if any, at the first instance, was lodged at the behest of the petitioner namely Bharti Rana. He further stated that ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP -6- Suresh Kumar only lodged complaint to counter the FIR of the petitioner.
Mr. Rathore further informed that the complainant Suresh was also .
convicted under Sections 525 and 323 IPC in the FIR lodged by the petitioner accused by the learned trial Court. Mr. Rathore further stated that the courts below committed glaring mistake by not trying both the cases together especially in view of the fact that both the complaints of had arisen from one event. In the aforesaid background, Mr. Rathore prayed that this petition may be allowed after setting aside the judgments passed by the Courts below. He also prayed that in view of rt the fats and circumstance of the case, there is no force, if any, in the criminal appeal preferred by the State for enhancement of the sentence and same may be ordered to be dismissed, in the interest of justice.
7. On the other hand, Mr. P.M. Negi, learned Additional Advocate General duly assisted by Mr. Ramesh Thakur, Deputy Advocate General, representing the State supported the impugned judgments passed by the courts below. Mr. Negi, strenuously argued that the judgments passed by the courts below are based upon the correct appreciation of the evidence available on record and as such, in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted, especially in view of the fact that courts below have dealt with each and every aspect of the matter very ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP -7- meticulously. He further argued that learned first appellate Court while accepting the appeal preferred by the petitioner has taken very lenient .
view and has modified the sentence till rising of the Court, which is not in consonance with the alleged offence having been committed by the petitioner and as such, same deserves to be enhanced. He further stated that bare perusal of the statements adduced on record by the of prosecution suggests that prosecution was able to prove its case beyond reasonable doubt and the petitioner-accused had given beatings to the complainant Suresh Kumar, who was discharging his rt official duty at the time of the incident and as such, no leniency, if any can be showed to the petitioner by this Court. While concluding his arguments, Mr. Negi, also reminded this Court that it has very limited powers while exercising its revisionary powers under Section 397 of the Cr.PC as far as re-appreciation of the evidence is concerned. In this regard, he placed reliance 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 ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP -8- the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
8. I have heard learned counsel for the parties as well .
carefully gone through the record
9. 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 of would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain rt that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record.
10. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:-
::: Downloaded on - 15/04/2017 21:35:06 :::HCHP -9-8. 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 committed by inferior criminal court in its judicial process or of illegality of sentence or order."
11. During the proceedings of the case, this Court had an occasion to peruse the entire evidence adduced on record by the rt respective parties, perusal whereof clearly suggests that complainant Suresh Kumar as well as the petitioner accused were posted and working as clerk and staff nurse, respectively in Rural Hospital, Chowari, at the time of alleged incident. It also emerge from the record that both the aforesaid persons lodged counter complaint against each other in the police station, which ultimately culminated into trial and conviction of both the parties, as recorded by the trial Court.
12. It appears that though complainant Suresh Kumar was convicted by the learned trial Court under Sections 325 and 323 IPC but later on he was acquitted of the charges by learned first appellate Court in the appeal preferred by him and thereafter, State chose not to file any appeal against his acquittal in FIR lodged by the petitioner accused. In the present case, which has arisen on the complaint of ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP
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PW1, proseuciton with a view to prove its case examined was many as seven witnesses.
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13. PW1 Dr. C.B.P. Singh, SMO, deposed before the Court below that on 18.5.1999, petitioner Bharti Rana reported to him that complainant Suresh Kumar (clerk) gave beatings to her. He further stated that thereafter Suresh also came there and stated that Bharti of Rana gave him beating with slaps and shoes. He further stated that Prehlad Singh rescued Suresh Kumar from Bharti Rana and thereafter complainant also gave a slap to Bharti Rana.
rt But in is cross-
examination, he specifically denied that Suresh Kumar gave beatings to Bharti.
14. PW2 Suresh Kumar (complainant) deposed that on 18.5.1999, he was sitting in his office along with Rattan Chand and Yashpal. He further stated that in the meantime, accused came there and asked for file pertaining to some Govt. land. It has come in his statement that file was handed over to her but she insisted that papers were not complete. He further stated that thereafter he handed over the file to the Rattan Chand but accused demanded all the papers of file but she was advised to get the same with the permission of the Senior Medical Officer. PW2 further stated that thereafter accused mis-
behaved and started pulling the file and thereafter accused snatched the file and started beating him with the shoe but he was rescued by ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP
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the Rattan Chand and Yashpal Verma. He also stated that in the meantime, Sanjay Kumar also came to the room and also stopped the .
accused from beating him. PW2 also stated that after aforesaid incident, accused went to the office of SMO and accused again gave beating to him with shoe in the office of SMO. He further stated that he also slapped accused in order to rescue himself from being beaten by of the accused however, in his cross-examination; he denied that he gave beatings to Bharti Rana and inflicted injuries on her person.
15. PW3 Rattan Chand also supported the version of PW2 by rt stating that at about 12 am, Bharti Rana demanded the file from PW2 concerning land papers. She asked him to separate the papers in the file but he showed is inability to do the same without the permission of SMO and thereafter the complainant closed the file and the accused started pulling the file. He specifically stated that when she pulled the file towards him, Bharti gave him beatings with Chappal. He further stated that Suresh Kumar was rescued by Yashpal, who was in the room.
PW3 further stated that thereafter Bharti went to the room of SMO and Suresh also followed her. However fact remains that in his cross examination, he denied that Suresh Kumar ever gave beatings to Bharti Rana.
16. PW4 Sanjay Gupta also supported the version of PW2 that on 18.5.1999, he was in the office of SMO, and while passing through the ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP
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corridor, he heard noise of quarrel from the office room. He went inside the room and saw that accused was holding shoe in her hand to give .
beatings to the complainant. PW4 further stated that he advised both the complainant and the accused to report the matter to SMO. But in is cross-examination, he feigned ignorance, if the complainant had given beatings to Bharti Rana.
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17. PW5 Dr. Rameshwar Jyoti, who medically examined the complainant Suresh Kumar stated that while examining the complainant, he found two injuries on his person as mentioned in the rt MLC Ext.PW5/A.
18. PW6 HC, Pritam Singh, I.O. stated that he had moved an application for medical examination of complainant Suresh Kumar and during investigation, he had prepared spot map Ext.PW6/A. He also stated that on 21.5.1999, Bharti Rana handed over one Sandal Ext.P1, which was taken into possession vide memo Ext.PW3/A.
19. Petitioner-accused in her statement recorded under Section 313 Cr.PC, denied the case of the prosecution and stated that the complainant Suresh Kumar is brother of Kanchan, who is having litigation with her and she has been falsely implicated by the complainant, Suresh Kumar at the behest of the Kanchan.
20. Close scrutiny of the prosecution evidence, as has been discussed in detail above, clearly suggests that on 18.5.1999, the ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP
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complainant Suresh as well as petitioner accused had dispute over some file pertaining to land of RH hospital, which resulted in the .
allegation and counter allegation of assault on each other. PW1 Dr. CBP Singh categorically stated that the complainant Suresh Kumar also gave slap to the Bharti petitioner-accused. If his statement is read in its entirety, it clearly emerges from the record that both the parties of (petitioner as well as complainant) gave beatings to each other. It is also undisputed that both the persons were posted and working as clerk and Staff nurse respectively in the same hospital and at that time, both rt were discharging official duties at that particular time.
21. PW2 in his own statement stated that accused came to his room and demanded file pertaining to govt. land from him, meaning thereby, she had asked for file, if any, in the capacity of official of that particular office because none of the prosecution witnesses have stated that documents as were asked for, by the petitioner accused, were of private in nature. PW2 in his statement specifically stated that he showed file to her, whereupon petitioner accused told that her papers were not on file and she started abusing him. He further stated that thereafter accused Bharti asked him to separate the documents from the file, which he refused to do by saying that same cannot be done without permission of SMO.
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22. This Court, after perusing the aforesaid portions of statements made by PW2 as well as PW3, has reason to presume that .
petitioner accused was asking for certain papers which belonged to her. Though all the prosecution witnesses have stated that petitioner accused gave beatings to the complainant but none of the PWs have specifically stated that petitioner accused prevented Suresh Kumar from of discharging his public duty. Though, PW1 in his cross-examination denied that Suresh Kumar gave beatings to her but in examination he specially stated that Prehlad Singh rescued him from Bharti and rt thereafter Suresh Kumar also gave slap to Bharti Rana, meaning thereby dispute in question between the parties, which ultimately resulted into scuffle, was admittedly personal in nature.
23. PW2 complainant also admitted that he slapped the accused in order to rescue himself from being beaten by the accused.
It has come in the statements of PW2 i.e. the complainant Suresh Kumar and PW3 Rattan Chand clerk that the complainant Suresh Kumar was rescued by the Yashpal Verma, who was in the room but interestingly, he was not cited as prosecution witnesses and as such, no much reliance could be placed upon the statement of PW2 and PW3, who were admittedly in the room when scuffle between the parties took place. Rather after perusing the statements of PW2 and PW3, it clearly emerges that information, as was being asked by the petitioner-
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accused, was denied by tPW2 Suresh Kumar as well as Rattan Chand in whose custody those document were. PW4 Dr. Sanjay Gupta though .
stated that when he was going to office of SMO, he heard noise coming from the office room. He further stated that he saw Bharti Rana was holding a shoe in her hand to give beating to Suresh Kumar.
24. Careful perusal of statement of PW4 nowhere suggests that of he saw Bharti Rana beating Suresh Kumar. He also stated that he advised both the complainant and the accused to report the matter to SMO. However, in his cross examination, he feigned ignorance, if Suresh rt PW2 also gave beatings to the petitioner but that may not be of any consequence, especially in view of the candid admission of the complainant himself that he gave beatings to the accused Bharti Rana with a view to rescue himself.
25. This Court, after bestowing thoughtful consideration upon the evidence led on record by the prosecution as well as stand taken by the petitioner-accused in her statement recorded under Section 313 Cr.PC, is of the view that prosecution was not able to prove its case that petitioner-accused Bharti tried to prevent/obstruct the complainant from discharging his duty and in this process, she gave beating to the complainant. At the cost of the repetition, it may be stated that none of the PWs stated that the petitioner obstructed the complainant from discharging his public duties and as such, this Court sees force in the ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP
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contention raised by the petitioner that since prosecution was unable to prove that the complainant was given beating while he was .
discharging public duties, no conviction, if any, could be recorded under Section 332 of the IPC. Though , perusal of prosecution evidence available on record indicates towards the use of criminal force by the petitioner-accused over the complainant but definitely, there is no of evidence to suggest that same was done to deter public servant from discharging his public duty and as such, conviction, if any, under Section 332 IPC, cannot be held to be valid and legal.
rt
26. Moreover as emerge from the record that both the parties (petitioner and the complainant) were discharging their public duty in the same office at that relevant time. It also stands proved on record that both the parties gave beating to each other. Learned trial Court has also convicted the complainant under Sections 325 and 323 of the IPC, but later on he was acquitted by the learned first appellate Court.
27. This Court after carefully examining the evidence led on record has no hesitation to conclude that the prosecution was not able to prove the offence under Section 332 of the IPC allegedly having been committed by the petitioner-accused because there is no evidence on record to suggest that intention of petitioner-accused was to prevent or deter the complainant from discharge of his duty. None of prosecution witness has specifically sated that petitioner-accused made ::: Downloaded on - 15/04/2017 21:35:06 :::HCHP
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an attempt to prevent or deter complainant from discharge of his duty, rather, this Court, after perusing the entire evidence led on record, is of .
the view that dispute, if any, between the parties was personal in nature. Apart from above, prosecution has not been able to prove that alleged assault had any nexus or casual connection or consequent relation with the performance of the duty by the complainant as public of servant. It is settled law that to punish a person under Section 332 of the IPC, there should be evidence suggestive of the fact that accused had intent to prevent or deter the victim from discharge of his duty as such rt public servant. In this regard, reliance is placed upon D. Chattaiah and Anr. V. State of Andhra Pradesh, (1979) 1 SCC 128, wherein Hon'ble the Apex Court has held as under:-
"10. It was thus manifest that the assault on the Typist (P.W.1) had no real nexus or casual connection, or consequential relation with the performance of his duty as public servant. There was not even a soientilla of evidence from which it could be reasonably inferred that the intent of the assailants was to prevent or deter P.W.1. from the discharge of his duty as such public servant,
11. In view of the above, the charge as laid under Section 332 I.P.C. and, the conviction of the appellant on that count, cannot be sustained. The appellants could, at the most, be held guilty under Section 323 I.P.C. the injuries caused being simple."
28. Consequently, in view of the detailed discussion made herein above, present petition is allowed and judgments passed by the courts below are quashed and set-aside, as a result of which, criminal appeal preferred by the State for enhancement is also dismissed.
Petitioner accused is acquitted of the charges framed against her.
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Interim order, if any, vacated. Bail bonds of the accused are discharged. Pending application, if any also stands disposed of .
18th November, 2016 (Sandeep Sharma),
manjit Judge.
of
rt
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