Himachal Pradesh High Court
Netar Singh vs State Of Himachal Pradesh on 18 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 27 of 2016 Reserved on: November 4, 2016 Decided on: November 18, 2016 ___________________________________________________________________ .
Netar Singh ...Petitioner
Versus
State of Himachal Pradesh ....Respondent
___________________________________________________________________ Coram Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting?1 ___________________________________________________________________ of For the petitioner: Mr. S.D. Sharma, Advocate. For the respondent: Mr. Ramesh Thakur, Deputy Advocate General with Mr. Rajat Chauhan, Law Officer.
___________________________________________________________________ rt Sandeep Sharma, Judge Instant Cr revision under Section 397 /401 CrPC is directed against judgment dated 9.9.2015 passed by learned Sessions Judge, Shimla in Cr. Appeal No. 67-S/10 of 2012, affirming judgment of conviction and sentence dated 30.4.2012/ 7.5.2012, passed by Judicial Magistrate First Class, Court No.2, Shimla, whereby present petitioner-accused was held guilty of having committed offence under Section 379 IPC and Section 25 of Indian Telegraph Act, 1885 and convicted and sentenced to undergo imprisonment, for 3 months and to pay fine of Rs.500 for the offence under Section 379 IPC and in default of payment of fine to undergo simple imprisonment for 15 days. He has been further sentenced to 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 2undergo one month's simple imprisonment and to pay fine of Rs.200 for offence under Section 25 of Indian Telegraph Act, 1885 and in default of payment of fine, to undergo simple imprisonment for .
seven days. Both the sentences are ordered to run concurrently.
2. Briefly stated facts as emerge from record are that vide written complaint PW-3/A, complainant Sanjay Kumar, SDO Telephones informed SHO PS Dhalli, Shimla about the theft of telephone of cable/wire within jurisdiction of Koti Exchange. Complainant, informed the Police that as per telephonic information received from rt Amar Singh, R/M Koti Exchange, 50 pair cable measuring 200 metres has been stolen from working line between Moijubbar and Mundaghat and one culprit alongwith cable has been caught with the help of villagers. Complainant claimed cost of cable to the tune of Rs.15,200/- and services of 28 subscribes were affected due to the theft.
3. On the basis of complaint, police registered case under Section 379 IPC and Section 25 of Indian Telegraph Act at PS Dhalli vide FIR No. 219/2008, Ext. PW-6/A. ASI Chanchal Singh carried out investigation and visited the spot alongwith complainant. As per prosecution story, recovered/ stolen cable was taken into possession from accused Netar Singh. Amar Singh produced two pieces of wire by cutting from each end of cable and taken into possession vide Fard. Police after recording statement of witnesses ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 3 under Section 161 CrPC arrested accused. Though he revealed that another person was with him, but since he had fled, his whereabouts could not be ascertained.
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4. Police filed Challan under Section 379 IPC and Section 25 of Indian Telegraph Act against accused Netar Singh. Learned trial Court on the basis of Challan having been filed by the police, put notice of accusation to the accused-petitioner, to which he pleaded of not guilty and claimed trial. Petitioner-accused in his statement under Section 313 CrPC denied entire case of prosecution, however, rt petitioner failed to lead evidence in defence despite having been afforded sufficient opportunity by the court below.
5. Learned trial Court on the basis of material adduced on record by prosecution found petitioner guilty of offence under Section 379 IPC and Section 25 of Indian Telegraph Act, 1885 and convicted and sentenced him to undergo imprisonment as described herein above.
6. Being aggrieved by judgment of conviction recorded by learned trial Court, accused filed an appeal under Section 374 CrPC before Sessions Judge, Shimla. But the fact remains that appeal was dismissed, and judgment of conviction recorded by learned court below was upheld.
7. Hence, in the aforesaid background, petitioner has approached this Court by way of instant petition praying for ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 4 acquittal after setting aside judgement of conviction recorded by learned court below.
8. Shri SD Sharma, counsel representing accused vehemently .
argued that judgments passed by learned courts below are not sustainable as they are not based on correct appreciation of evidence adduced on record by prosecution, rather same is based on conjectures and surmises and deserve to be set aside. While of referring to the judgment of first appellate Court, Mr. Sharma vehemently argued that learned court below miserably failed to rt appreciate evidence its right perspective, as a result of which prejudice has been caused to the accused, who has been falsely implicated in the case. With a view to substantiate his arguments, he made this Court to travel through the statements of prosecution witnesses to demonstrate that no conviction by the learned courts below could be recorded on the basis of contradictory statements with regard to time and place of occurrence made by prosecution witnesses. Mr. Sharma further contended that bare perusal of prosecution evidence led on record suggests that same was not sufficient to conclude that petitioner was involved in alleged theft of telephone cable. He, while concluding his argument, stated that bare perusal of statements of prosecution witnesses suggests that contradictions in their statements were not minor, as has been held by both the courts below and as such learned courts below wrongly ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 5 believed prosecution story under which some humanly impossible acts were attributed to the petitioner, while making prayer to set aside judgments passed by both the courts below, Mr. Sharma .
forcefully contended that petitioner has been falsely implicated and both the courts have gravely erred while passing judgment of conviction and as such petitioner deserves to be acquitted of the charges framed against him.
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9. Shri Ramesh Thakur, Deputy Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer, supported the judgment of both rt the courts below. Mr. Thakur vehemently argued that bare perusal of impugned judgments passed by courts below nowhere suggests that same are not based on correct appreciation of evidence, rather it suggests that both the courts below have dealt with each and every aspect of matter meticulously and there is no scope of interference by this Court, especially in view of concurrent findings of facts. With a view to refute submissions having been advanced by Mr. Sharma, that there are major contradictions in the statements of witnesses, Mr. Thakur invited attention of this Court to the statements of prosecution witnesses to demonstrate that all the prosecution witnesses unequivocally stated that petitioner accused was nabbed from site of occurrence with the cable and as such there is no error in the judgments of learned courts below. While concluding his arguments, Mr. Thakur reminded this Court of its ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 6 limited jurisdiction under Section 397 CrPC to re-appreciate the evidence especially in view of concurrent findings recorded by both the learned courts below. Learned Additional Advocate General, has .
placed reliance upon the judgment passed by Hon'ble Apex Court in case State of Kerala versus Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
of " 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 rt 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."
10. I have heard learned counsel representing the parties and have carefully gone through the record made available.
11. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-
appreciate the evidence available on record. But in the present case, where accused has been convicted and sentenced under Sections 279, 337,338 of the Indian Penal Code, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and the same are based upon correct appreciation of evidence available on record, undertook an exercise ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 7 to critically examine the evidence available on record to reach fair and just decision in the case.
12. 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 of 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 rt the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or 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 committed by inferior criminal court in its judicial process or illegality of sentence or order."
13. While examining the genuineness and correctness of aforesaid submissions having been advanced by Mr. Sharma, counsel for petitioner, this Court extensively sifted the entire evidence led on ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 8 record by the prosecution, perusal whereof clearly suggests that prosecution successfully proved beyond reasonable doubt that petitioner was caught at the site of occurrence while stealing .
telephone cable. All the prosecution witnesses have very specifically stated that after having received telephonic information, they visited the spot of occurrence, from where petitioner-accused was caught cutting the telephone wires. Prosecution, with a view to prove its of case, examined PW-1 Amar Singh, who had actually received telephonic call from owner of building, where telephone exchange at rt Koti was situated. Amar Singh PW-1 specifically stated that on 11.10.2008, he received telephone call from his landlord that some persons on Moijubbar road were uprooting cable. He stated that at that time, telephone exchange was in the building of Parveen and after receiving aforesaid information, he informed Munshi Ram and Yashwant and all of them reached the spot. He specifically stated that he alongwith Munshi Ram and Yashwant reached spot and saw 50 pairs of cable wire uprooted and heard sounds of whispering.
After hearing sounds, they hid themselves and saw two persons coming upward uprooting wire. He further stated that they caught hold of accused Netar Singh on the spot and another person fled under cover of darkness. He further stated that wire was in the hands of Netar Singh who was apprehended by them. He stated that accused was carrying black coloured bag carrying Khilna and hexa ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 9 blade. It has come in his statement that he informed SDO, who further informed police and reached the spot with police officials.
He also stated that 50 pairs of telephone wire, Khilna and hexa .
blade were taken into possession from the petitioner, which were further identified by him in the Court. He also stated that he had also cut two pieces from each wire and handed over same to IO who after sealing the same into a cloth parcel, took into possession vide of Ext. PW-1/B. He identified Ext. P1 and piece of wire, Ext. PX-2 and PX-3 in the Court.
14. rt PW-2 Munshi Ram and PW-4 Yashwant Singh, who had accompanied PW-1 Amar Singh, to the site of occurrence also supported the version put forth by PW-1 by reiterating the stand taken by him, in their examination-in-chief. If cross-examination conducted on aforesaid prosecution witnesses is read in its entirety, it nowhere suggests that defence was not able to extract anything contrary to what they stated in examination in chief. This Court, after examining answers by prosecution witnesses to the suggestion put forth by defence, is fully convinced that these prosecution witnesses were specific, straight forward and candid in stating that on 11.10.2008,they nabbed accused Netar Singh stealing cable wire from the site of occurrence.
15. Similarly, PW-3 Sanjay Kashyap stated that on 11.10.2008, after receiving call from Amar Singh, he informed the matter to the ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 10 police and thereafter, visited the spot alongwith the police officials.
He specifically stated that he visited the spot alongwith the police, where Amar Singh had caught the petitioner and 8-10 persons were .
present there. It has come in his statement that he could identify the accused in case produced before him.
16. PW-5 Naveen Thakur, owner of building in which telephone exchange was housed, also stated that he received telephonic call of that some people were uprooting telephone cable at Moijubbar and he informed Amar Singh over the phone. This witness was unable to rt give the correct statement with regard to time and date of incident, he was declared hostile but if his cross examination by the learned APP is examined, it corroborates the version put forth by prosecution witnesses and proves the case of prosecution that on 11.10.2008, petitioner was caught stealing telephone cable by Amar Singh and other persons.
17. PW-6 Dy.SP Manohar Lal who was posted as SHO, PS Dhalli, also admitted that complaint Ext. PW-3/A was registered by SDO Sanjay, PW-3. He further proved FIR Ext. PW-6/A, whereupon he had made endorsement PW-6/B.
18. PW-8, HC Shiv Kumar, who was posted as MHC stated that on 12.10.2008, ASI Chanchal Singh deposited bag containing a Khilna, hexa blade and also a Pullinda sealed with seal 'B' stated to be containing two pieces of cable wire and besides that 6 bundles of ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 11 cable wire 50 pairs. He further stated that he entered articles in register No. 17 and proved extract Ext. PW-8/A.
19. PW-7 ASI Chanchal Singh stated that SDO, PW-3, moved an .
application at 12.30 AM before police and on the basis of same, FIR Ext. PW-6/A was registered. He stated that he visited the spot and prepared spot map Ext. PW-7/A. It has also come in his statement that stolen wire was taken into possession alongwith hexa blade and of one hoe. Most importantly, he stated that Amar Singh PW-1 cut the wire from both ends and put in the parcel, which was taken into rt possession vide Ext. PW-1/A. It has also come in the statement that accused was arrested from spot and effort was made to nab the companion of accused but he could not be arrested on the spot.
20. Conjoint reading of aforesaid statements leaves no doubt in the mind of the Court that prosecution successfully proved on record that on 11.10.2008, petitioner-accused was stealing cable from Moijubbar and he was nabbed by Amar Singh and others on the spot. All the prosecution witnesses supported the version put forth by the prosecution and this Court is unable to accept the contention of Mr. Sharma, counsel for petitioner, that there are major contradictions in the statements having been made by these prosecution witnesses. True it is that PW-5 Naveen Kumar was unable to give exact timing and date of alleged incident but even if ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 12 his cross-examination is perused carefully, it supports the version of prosecution and proves the guilt of the accused.
21. Hence, this Court, after close scrutiny of evidence, is .
compelled to draw the conclusion that the prosecution led on record cogent and convincing evidence to prove guilt of accused and as such, sees no illegality or infirmity in the judgments passed by both the courts below.
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22. This Court solely with a view to ascertain the correctness of submission of Mr. Sharma minutely examined the statements rt adduced on record by prosecution witnesses, which nowhere suggest that there are major contradictions, which could be termed fatal to the case of prosecution.
23. Faced with this situation, counsel representing accused stated that in view of the fact that accused is a first offender and incident being very old, benefit of Section 4 of the Probation of Offenders Act can be extended to the accused. He stated that the mitigating circumstance in the present case is that the alleged offence was committed on 11.10.2008 and more than eight years have passed after rendering of judgment by the learned trial Court.
He also stated that the accused is the sole bread-winner of the family and in case he is sent behind bars, entire family would be placed in precarious circumstances.
::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 1324. 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 .
State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been held as under:
"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 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 sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the rt Probation of Offenders Act. Accordingly, it is ordered that he shall furnish 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."
25. In this regard, 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. 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 ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 14 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 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 of 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."
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26. 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 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.::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 15
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/- as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation.
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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-
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(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 rt 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 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 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, ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP 16 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."
27. In view of the aforesaid law as well as submissions having been made by Mr. Sharma, learned counsel appearing on behalf of the of accused and after taking into consideration the facts and circumstances of the present case, I am of the considered opinion that rt the present petitioner-accused can be granted benefit of Section 4 of the Probation of Offenders Act, 1958.
28. Accordingly, Registry is directed to call for the report of the Probation Officer, Shimla, District Shimla, H.P. on or before 20.12.2016. Registry to list this matter on 23.12.2016.
(Sandeep Sharma) Judge November 18, 2016 Vikrant ::: Downloaded on - 15/04/2017 21:34:44 :::HCHP