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2004 DIGILAW 13 (HP)

VARINDER SUD v. STATE OF H. P.

2004-01-08

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J. :- This Criminal Revision Petition is directed against the judgment dated 7.3.2003 passed by the learned Additional Sessions Judge, Shimla, in Criminal Appeal No. 13-S/10 of 2001 whereby the sentence of imprisonment awarded to the accused-petitioner (hereinafter referred to as the accused) under Section 498-A, I.P.C., has though been reduced but his conviction under Sections 498-A and 323,1.P.C., has been maintained. 2. Case of the prosecution in brief is that Ranjana Devi (PW-6) was married to the accused in August, 1992 at Shimla. After about two months of the marriage the accused started telling PW-6 that her mother had not given anything in dowry and started forcing her to bring money and other articles of day-to-day use from her mother. PW-6 told the accused that her mother could not afford to give money and other articles as she had no means to do so. The accused thereupon started beating and maltreating PW-6.... She had, been writing letters about such maltreatment to her sisters and- had also informed her mother. On 10.1.1994 at about 9.30 p.m. when the accused and PW-6 went to sleep, the accused gave beatings to her and threw her on the ground. When she slept on the bed accused committed carnal intercourse with her. PW-6 then went to the house of one Kishan and telephonically informed her mother about the occurrence. On receipt of this information her sister (PW-7) went to her house and alongwith PW-7 she came to her parents house and lodged the F.I.R. Ext. PW-8/A at Police Station Dhalli. PW-6 was got medically examined and the M.L.C. about medical examination issued by Dr." Dayal Chauhan (PW-3) is Ext. PW-3/A. As per the medical opinion there was evidence suggestive of the fact that penetration of anal region of PW-6 had taken place and five injuries in the form of abrasions/bruises were also noticed on her person. At the time of medical examination of PW-6, her salwar, anal/perianal/rectal swab were taken and sealed by PVV-3 for the purpose of chemical analysis. On arrest accused was also got medically examined and as per the opinion vide MLC Ext. PW-3/B given by PW-3, the accused was found sexually potent and two injuries on his person were also detected. His pyjama and underwear were taken and sealed by PW-3 for the purpose of chemical analysis. On arrest accused was also got medically examined and as per the opinion vide MLC Ext. PW-3/B given by PW-3, the accused was found sexually potent and two injuries on his person were also detected. His pyjama and underwear were taken and sealed by PW-3 for the purpose of chemical analysis. The articles so taken in possession and sealed were sent to the State Forensic Science Laboratory for analysis and as per the report PW-4/A of Assistant Director of the said Laboratory, blood was detected on rectal smear and human semen was detected on pyjama and underwear of the accused. During the course of investigation the police took in possession letters Exts. P-1 to P-3 and envelope Ext. P-4 on production by Sangita Sud (PW-8). On being satisfied of the commission of offences by the accused, the Officer-incharge, Police Station Dhalli, submitted a charge-sheet against the accused who. came to be tried by the learned Additional Chief Judicial Magistrate, Shimla on a charge under Section 498-A, 323 and 377, I.P.C. To prove the charge against the accused the prosecution examined 11 witnesses. Statement of the accused was recorded under Section 313 Cr. P. C. wherein the accused denied demand for dowry but admitted the beatings for which he requested for being excused. The accused, however, did not lead any defence evidence. 3. On appreciation of the material on record the learned trial Magistrate held the accused guilty of the commission of offences under Sections 498-A and 323, I.P.C, however, he was acquitted of the offence under Section 377, I.P.C. After hearing the accused on sentence, the learned trial Magistrate sentenced the accused to undergo rigorous imprisonment for one year and fine of Rs. 2000/- and in default of payment of fine to undergo simple imprisonment for three months under Section 498-A, I.P.C, and fine of Rs. 1000/- and in default of payment of fine to undergo simple imprisonment for three months under Section 323, I.P.C. 4. Being aggrieved by the conviction and sentence, the accused preferred an appeal1, which was heard and decided by the learned Additional Sessions Judge, Shimla, whereby while maintaining the conviction, the sentence of imprisonment awarded to the accused under Section 498-A, I.P.C. was reduced to 6 months. Still being aggrieved the accused has preferred this petition. 5. Being aggrieved by the conviction and sentence, the accused preferred an appeal1, which was heard and decided by the learned Additional Sessions Judge, Shimla, whereby while maintaining the conviction, the sentence of imprisonment awarded to the accused under Section 498-A, I.P.C. was reduced to 6 months. Still being aggrieved the accused has preferred this petition. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone thorough the records. 6. It was contended by the learned Counsel for the accused that there is no cogent and reliable evidence on the record to connect the accused with the commission of the offences for which has been convicted and sentenced. The version of the material witnesses partially has been found to be false by the trial Court, therefore, the statements of the material witnesses are rendered unreliable and could not be acted upon. It was also contended that the documentary evidence consisting of the letters written by PW-6 to her sister Nisha are also fabricated piece of evidence as they have not come on record from proper custody. The mother of the prosecutrix to whom the prosecutrix had narrated about the alleged acts of cruelty has not been examined from which an adverse inference ought to have been drawn against the prosecution. It was further contended that PW-6 wanted that the accused must reside with her mother and also wanted to marry some other person of her choice and had remarried after mutual divorce between her and the accused and the F.I.R. was lodged only to compel the accused to divorce PW-6. The learned Counsel has, therefore, urged that the impugned conviction and sentence are not sustainable. 7. On the other hand, the learned Deputy Advocate General while supporting the judgments of the trial Court and the lower Appellate Court submitted that both the Courts below have recorded concurrent findings and there is no illegality in the judgments of the Courts below, therefore, no interference is called for by this Court. 8. 7. On the other hand, the learned Deputy Advocate General while supporting the judgments of the trial Court and the lower Appellate Court submitted that both the Courts below have recorded concurrent findings and there is no illegality in the judgments of the Courts below, therefore, no interference is called for by this Court. 8. Before proceeding to examine the submissions made by the learned Counsel for the parties, it may be pointed out the revisional powers of the High Court through very wide are purely discretionary and are ordinarily to be exercised only in exceptional cases where there is glaring defect in the procedure or a manifest error on a point of law leading to; miscarriage of justice. The revisional powers are meant for correcting the injustice and not the defects and illegality which do not go to the root of the case. The concurrent findings of the courts of fact are ordinarily not to be interfered with even if a view other than the view taken by such courts is possible. (See : Jagdish Raj v. State of H.P., 2003(2), Shimla Law Cases 7, Harish v. State of H.P., 2003(2) Shimla Law Cases 72, Ramesh Kumar v. State of H.P., 2000(2) SLJ 1401 and Vijay Kumar Sethi v. Kanwar Bhupinder Singh, 2003 Cr. L.J. 2124. 9. In Jaswant Rai v. State of H.P., 2000(1) Cr. LJ. (H.P.) 169 : 2000 Cr. L.J. 1970, para 9 this Court, while dealing with the scope of revisional powers of the High Court, held as under: "9. The accused have been held guilty of the offence punishable under Section 332 of the Indian Penal Code by the trial Court and under Section 332 read with Section 34 of the Indian Pena! Code by the learned Additional Sessions Judge, thus, there are concurrent findings of facts. In such a situation this Court has to necessarily examine the matter keeping in view the well-settled proposition of law that though the revisional powers of this Court are every wide but are purely discretionary and are normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or a manifest error on point of law leading to grave miscarriage of justice. Therefore, the power of revision is to be exercised only for correcting the injustice and not mere illegality which may not go to the root of the case. Therefore, the power of revision is to be exercised only for correcting the injustice and not mere illegality which may not go to the root of the case. Thus, merely because a view other than the one taken by the Courts below is possible, the findings recorded by such Courts are not to bee disturbed." 10. Similarly, in Kehar Singh v. State of H.P, 2000(1) Cri. L.J. (H.P.) 304 this Court had held as under:- "6. It may be pointed out at the very outset that the revisional power of the High Court though very wide is purely discretionary to be exercised fairly according to the exigencies of each case. It is well settled that such power is normally to be exercised only in exceptional cases when there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. It is to be exercised only for correcting injustice and not mere illegality. Revisional Court thus is not expected to act as a Court of appeal and the jurisdiction is not to be ordinarily invoked or used merely because the lower Court(s) have taken a wrong view of the law or mis-appreciated the evidence on record. The Revisional Court would not interfere with the order of the lower Court unless it is shown to be perverse or without evidence or not tenable in law or simply because other view is possible (See Narayan Tewary v. State of West Bengal, AIR 1954 SC 726 : 1954 Cri. L.J. 1808; Amar Chand Agrawalla v. Shanti Bose, AIR 1973 SC 799 : 1973 Crl. L.J. 577; Akalu Ahir v. Ram Deo Ram, AIR 1973 SC 2145 : 1973 Cri. L.J. 1404; Dull Chand v. Delhi Administration, AIR 1975 SC 1960 : 1975 Cri. L.J. 1732; SPS Jayam and Co. v. Neharu Sadan, AIR 1977 SC 1621 : 1977 Cri. L.J. 1101; Thakur Das (dead) by LRs. v. State of M.P., AIR 1978 SC 1 : 1978 Cri. L.J. 1; State of Orissa v. Nakula Sahu, AIR 1979 SC 663 : 1979 Cri. L.J. 594; Pathumma v. Muhammad, AIR 1986 SC 1436 : 1986 Cri.L.J. ^070 and State of Karnataka v. Appa Balu Ingale, AIR 1993 SC 1126 : 1993 Cri.L.J. 1029." 11. The Courts below have relied mainly on the evidence of Rsnjana Sood (PW-6), Nisha Caushal (PW-7), Sangita Sood (PW-8), Swaroop Krishan (PW-2), Joginder (PW-9). L.J. 594; Pathumma v. Muhammad, AIR 1986 SC 1436 : 1986 Cri.L.J. ^070 and State of Karnataka v. Appa Balu Ingale, AIR 1993 SC 1126 : 1993 Cri.L.J. 1029." 11. The Courts below have relied mainly on the evidence of Rsnjana Sood (PW-6), Nisha Caushal (PW-7), Sangita Sood (PW-8), Swaroop Krishan (PW-2), Joginder (PW-9). and Chattar Singh (PW-11) and the medical evidence i.e. MLC Ext. PW-3/A read with statement of Dr. Dayal (PW-3) and the letters Exts. P-2, P-2, P-3 and empty envelope Ext. P-4. 12. A perusal of the aforesaid letters clearly reveals that PW-6 was treated with cruelty by the accused. According to the version of the prosecution these letters were addressed by PW-6 to her sister Nisha as mentioned in the F.I.R. Ext. PW-6/A and PW-6 has stated on oath that she had been writing the letters to her sister and she had identified the letters Exts. P-1 to P-3 and the address on the envelope Ext. P-4 being in her hand. These letters were taken in possession vide Memo; Ext. PW-8/A. As per this memo, these letters were produced by PW-8. It is, however, specifically mentioned therein that one of such letters was addressed to Shivanand Kaushal, admittedly, landlord of PW-7. PW-7 has specifically stated that letter Ext. P-1 in envelope Ext. P-4 was sent to her by PW-6. PW-8 Sangita Sood had also supported this version on oath and has claimed that even letter Ext. P-3 addressed to Nisha was produced by her before the police. In these circumstances, it cannot be said that these letters were fabricated letters solely on the ground that the letter addressed to PW-7 had been produced before the Police by PW-8. It is not improbable that these letters addressed to the sisters of PW-6 were collectively handed over to the police by one of such sisters. Merely because these letters were produced by Sangita the genuineness thereof cannot be doubted. 13. The prosecution version that the accused had treated PW-6 with cruelty is fully supported not only by the statements of Kishan Dutt (PW-1), Sarwoop Krishan (PW-2), Ishwar Das (PW-5), Ranjana Sood (PW-6), Nisha Kaushal (PW-7), Sangita (PW-8), Joginder (PW-9) and Chattar Singh (PW-11) but is also fully supported by medical evidence. 13. The prosecution version that the accused had treated PW-6 with cruelty is fully supported not only by the statements of Kishan Dutt (PW-1), Sarwoop Krishan (PW-2), Ishwar Das (PW-5), Ranjana Sood (PW-6), Nisha Kaushal (PW-7), Sangita (PW-8), Joginder (PW-9) and Chattar Singh (PW-11) but is also fully supported by medical evidence. At the time of medical examination of Ranjana Sood (PW-6) as many as five injuries were detected on her person having been caused within 24 hours of her medical examination on 11.1J994at 10.15 a.m. According to PW-6 she was lastly beaten by the accused on 10.1.1994 at about 9.30 p.m. Thus, the injuries found on her person at the time of medical examination lends corroboration to her version regarding her beating by the accused. Above all, the accused in answer to the 3rd question put to him in his examination under Section 313, Cr.P.C, has admitted the beatings given to PW-6 and had requested for being excused for the same. He has not explained any reason for such beatings therefore, the cause for beatings can be the cause as stated by PW-6. In view of this evidence on record it was not incumbent on the prosecution to examine the mother of PW-6 who admittedly died during trial of the case. Therefore no adverse inference can be drawn against the prosecution for non-examination of the mother of the prosecutrix. 14. The testimony of the material witnesses can also not be discarded solely on the ground that the version regarding the accused having committed carnal intercourse with the prosecutrix has not been believed by the trial Court because it had acquitted the accused of the said head of charge by giving him the benefit of doubt. Even otherwise it is well settled that if a certain part of the statement- of a witness is found doubtful that does not mean that statement of such a witness must be disbelieved as a whole. The only caution to be taken by Court law in such a situation is that the statement of such a witness has to be scrutinized with a care and caution. If the remaining statement is confidence inspiring as in this case, the Court can act on such statement. 15. The only caution to be taken by Court law in such a situation is that the statement of such a witness has to be scrutinized with a care and caution. If the remaining statement is confidence inspiring as in this case, the Court can act on such statement. 15. The contention of the learned Counsel that this case has been fabricated for the reason that PW-6 wanted that the accused should reside with her mother and she herself wanted to marry some other person of her choice is self-contradictory and self-destroying, therefore, cannot be sustained. 16. The concurrent findings of facts recorded by the Courts below are based on correct appreciation of evidence on record, and they have not committed any illegality going to the root of the case, therefore, the impugned conviction and sentence do not call for any interference by this Court. 17. As a result, this petition merits dismissal and is accordingly dismissed.