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2004 DIGILAW 70 (HP)

RAMESH v. STATE OF HIMACHAL PRADESH

2004-04-08

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This revision petition is directed against the judgment dated 1.10.1999 passed by the learned Sessions Judge, Shimla whereby appeal of the accused/petitioners (hereafter referred to as the accused persons No. 1 to 4 as per the seriatum in the cause title) against the judgment dated 29.10.1998 passed by the learned Additional Chief Judicial Magistrate, Rohru has been partly allowed and partly dismissed. 2. The case of the prosecution against the accused persons is that on 4.10.1994 Hari Nand (PW-1) had gone to village Galu where he saw A-1 his nephew gambling. PW-1 rebuked A-l and asked him to shun the company of the gamblers. On 9.11.1994 when PW-1 was returning home from the forest after answering the call of nature A-l accompanied by A-2 to A-4 encountered him near the village temple, caught hold of him and gave him beatings. He was thrown on the ground and was given fist and kick blows resulting in causing several injuries, including fracture of nasal bone. PW-1 reported the matter to the police on the basis of which FIR Ext. PW-1/A was registered at police station, Jubbal. PW-1 was got medically examined and MLC regarding such examination is Ext, PW-8/A. On production by PW-1 blood stained sweater and Dhatu Exts. P-l and P-2 were taken in possession vide Memo Ext. PW-l/B. After collecting the material and on being satisfied of the involvement of the accused persons in the commission of the offences a charge-sheet was submitted against the accused persons who came to be tried by the learned Sub Divisional Judicial Magistrate (1), Rohru on a charge under Sections 451/34, 325/34, 323/34, 441/34 and 506/34, IPC. To prove the charge against the accused, prosecution examined 10 witnesses. The accused in their statements under Section 313 Cr.P.C. denied the prosecution case and claimed to be innocent. On the basis of the evidence on record, the learned trial Magistrate found the accused persons guilty of the commission of the offences punishable under Sections 323 and 325 IPC and accordingly convicted them and sentenced each of the accused to undergo imprisonment till the rising of the court and to pay a fine of Rs. 2,000 and in default of payment of fine to undergo simple imprisonment for a period of two months. 3. 2,000 and in default of payment of fine to undergo simple imprisonment for a period of two months. 3. Being aggrieved, the accused persons preferred an appeal against their conviction and sentence which was partly allowed by the learned Sessions Judge, Shimla to the extent that the conviction of A-l, A-3 and A-4 under Section 325 IPC was set aside but was maintained under Section 323 IPC and they were sentenced to imprisonment till the rising of the court and fine of Rs. 500 each and in default of payment of fine to undergo imprisonment for one month. The conviction of and sentence awarded to A-2 by the trial Court, however, was maintained. Aggrieved accused persons have preferred the present revision petition against such conviction and sentences awarded to them. 4. I have heard the learned Counsel for the accused persons and the learned Deputy Advocate General for the State and have also gone through the records. 5. It was contended by the learned Counsel for the accused persons that the evidence led by the prosecution is inconsistent, unreliable and self contradictory and the statement of the complainant is not corroborated even by the medical evidence, therefore, the Courts below have committed error in convicting and sentencing the accused persons on such evidence and they are entitled to be acquitted. 6. On the other hand, the learned Deputy Advocate General while supporting the impugned judgment had submitted that minor contradictions in the statements of the witnesses have been rightly ignored by the Courts below and have based their judgment on proper appreciation of the material on record. 7. The present petition is against the concurrent findings of facts recorded by the trial court and the appellate Court that the accused persons had beaten up PW-1 and thereby voluntarily caused simple and grievous injuries to him. The law applicable to such a situation is well settled that the revisional powers of the High Court though very wide, are purely discretionary and are to be exercised only to correct grave miscarriage of justice. 8. In Jaswant Rai and others v. State of H.P., 2000 Cri. L.J. 1970, this Court while dealing with the scope of revisional powers of the High Court under the Criminal Procedure Code, held as under :— "9. 8. In Jaswant Rai and others v. State of H.P., 2000 Cri. L.J. 1970, this Court while dealing with the scope of revisional powers of the High Court under the Criminal Procedure Code, 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 Penal 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 very 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. 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 be disturbed." 9. In Ramesh Kumar v. State of H.P., 2000 (2) SLJ1401, this Court reaffirmed the above view and held as follows: "5. Be it stated at the very outset that revisional powers of this Court are discretionary and are normally to be exercised only in exceptional cases when there is any glaring defect in the procedure or a manifest error on a point of law leading to grave miscarriage of justice. The powers of revision are to be exercised only for correcting the injustice and not mere irregularity which does not go to the root of the case. Merely because a view other than the one taken by the Courts below is possible, the findings recorded by such Court are not be interfered with. (See Criminal Revision No. 78/1999, Vimal Kishore v. D.D. Gautam and another, decided on 29.12.1999). It is in view of the above well settled proposition of law that the present petition requires examination and consideration." 10. (See Criminal Revision No. 78/1999, Vimal Kishore v. D.D. Gautam and another, decided on 29.12.1999). It is in view of the above well settled proposition of law that the present petition requires examination and consideration." 10. In view of the above settled position in law, a High Court can interfere in exercise of its revisional powers only in exceptional cases where any glaring defect in the procedure or a manifest error on a point of law has led to grave miscarriage of justice which requires to be undone. 11. In the case in hand PW-1, who is victim of the offence, has fully supported the case of the prosecution. It is in his evidence that the occurrence was witnessed by Narendra Devi (PW-7) and Mohan Lai (PW-4). In his evidence PW-4 Mohan Lai has corroborated the statement of PW-1 and PW-7 has also by and large corroborated the statement of PW-1 about the beatings and the injuries thereby sustained by him. Though PW-7 in her cross-examination had said that she had not properly seen the accused persons except A-l at the time of the occurrence but learnt about their names subsequently The fact, however, remains that she had corroborated the statement of the complainant and Mohan Lai about the beating given to the complainant by four persons including accused Ramesh and according to PW-1 and PW-4 accused persons were the assailants. Therefore, PW-7 has substantially corroborated the statement of PW-1 on material particulars. Dr. Laxmi Nand (PW-8) though in cross-examination admitted that the injuries as found on the person of PW-1 were capable of being caused by a fall but this admission by PW-8 does not mean that he is giving a definite opinion that the injuries on the person of PW-1 were caused by a fall and not otherwise. In the face of the statements of PWs 1, 4 and 7, the injuries sustained by PW-1 cannot be attributed to a fall. 12. While referring to the evidence on record, the learned Counsel for the accused persons has contended that there are contradictions and improbabilities in the statements of the material witnesses. In the face of the statements of PWs 1, 4 and 7, the injuries sustained by PW-1 cannot be attributed to a fall. 12. While referring to the evidence on record, the learned Counsel for the accused persons has contended that there are contradictions and improbabilities in the statements of the material witnesses. It was pointed out that according to PW-1 the accused persons had assaulted his brother Bala Nand (PW-5) in the morning of 9.1.1994 at Patsari bridge and thereafter the accused persons came to his house in village Badaal where they were informed by Birma Devi (PW-3) wife of PW-1 that he had gone out to ease himself. The accused persons left the house and came on the way through which PW-1 was returning to his house and was caught hold of by the accused persons and was beaten up whereby he sustained injuries and that on the same day they had beaten up his son also. According to the prosecution, pointed out the learned Counsel, PW-1 was beaten up by the accused persons at about 8 a.m. whereas PW-5 was beaten up at 7.30 a.m. In fact, it is so stated by PW-4 and PW-5. On the strength of this version the learned Counsel submitted that because of the distance between Patsari and Badaal it was improbable to beat PW-5 at Patsari at about 7.30 a.m. and then beat PW-1 at Badaal at 8 a.m. and this improbability renders the prosecution version highly unreliable. It was also submitted that though as per the admitted case of the prosecution PW-1 was beaten up by the accused persons at 8 a.m. on 9.11.1994 but according to HC Hira Singh (PW-9), PW-1 had lodged FIR Ext. PW1/A at 8 a.m. on 9.11.1994 which is again improbable because the occurrence and lodging of the report at police station which is at some considerable distance from the place of occurrence could not be at the same time. 13. As per the version of the prosecution the occurrence took place at 8 a.m. on 9.11.1994. PW-1 who lodged the FIR has stated that he lodged the report at the Police Station at 11 a.m. It is not in dispute that after the occurrence had taken place at 8 a.m. the informant could reach the police station by 11 a.m. to lodge the report. PW-1 who lodged the FIR has stated that he lodged the report at the Police Station at 11 a.m. It is not in dispute that after the occurrence had taken place at 8 a.m. the informant could reach the police station by 11 a.m. to lodge the report. According to PW-9, however, PW-1 had visited the Police Station at 8 a.m. and lodged the report. The contemporaneous record is the FIR itself. As per the FIR Ext. PW 1/A it was lodged at 11. a.m. whereas the time of occurrence as given in the FIR is 8 a.m. There is no suggestion to PW-1 that time of lodging the FIR as recorded therein is wrong. On the contrary it is specifically stated by PW-1 that he lodged the report at 11 a.m. Therefore, statement of PW-9 that PW-1 had come to the Police Station at 8 a.m. is rendered unreliable and appears to be a result of loss of memory as a result of lapse of time between the date of occurrence and the date of making the statement by this witness in the Court which is almost four years. 14. The distance between Patsari where the accused persons are alleged to have beaterTPW-5 and Badaal where PW-1 was beaten by them has not been specifically brought on record. What emerges from evidence of PW-10 is that it takes about half an hour or 3/4 of an hour to reach Badaal from Dochi on foot. However, this distance does not lead any where because it is not the distance between Patsari and Badaal. According to PW-1, the distance between Dochi and Badaal is about 1 or 1-1/2 km. However, this distance brought on record by the accused persons in the cross-examination is also of no help to find out whether there was sufficient time for the accused persons to reach Badaal by 8 a.m. after having beaten PW 5 at Patsari at 7.30 a.m. The incontroverted fact, however, is that as per PW-5 the accused persons after having beating him at Patsari left towards Badaal by a bus. It is further evident from the statements of PW-5 and PW-1 that the distance between villages Badaal and Chamshu is 11 kms. and while going from Badaal to Chamshu, Patsari falls on the way. It evidently means that distance between Patsari and Badaal is less than 11 kms. It is further evident from the statements of PW-5 and PW-1 that the distance between villages Badaal and Chamshu is 11 kms. and while going from Badaal to Chamshu, Patsari falls on the way. It evidently means that distance between Patsari and Badaal is less than 11 kms. According to the unchallenged statement of PW-1 distance between Badaal and Chamshu is covered by a bus between 10-15 minutes. Thus, the distance between Patsari and Badaal can be covered by a bus in less than 10-15 minutes. Thus, the accused persons who had beaten PW-5 at Patsari at about 7.30 a.m. and came towards Badaal by a bus could be at Badaal by 8 a.m. Thus, the contention of the learned Counsel that it was improbable for the accused persons to be at Badaal by 8 a.m. cannot be sustained. 15. There are minor contradictions in the statements of the prosecution witnesses but because of errors in individual perceptions and observations such contradictions are bound to occur. Secondly with the passage of time lapse of memory can also lead to minor contradictions and discrepancies in the statements of the witnesses. Human tendency to back up good cases by exaggerated version can be yet another reason for contradictions and discrepancies in the evidence of the witnesses. Therefore, while appreciating the evidence the Courts are not to attach undue importance to minor contradictions and discrepancies in the version given by the witnesses and not to disbelieve such statements as a whole because of such minor discrepancies/contradictions unless they go to the root of the case. The Court may ignore exaggerated part of the testimony and may act upon the part which may be otherwise reliable and trustworthy. 16. The Court may ignore exaggerated part of the testimony and may act upon the part which may be otherwise reliable and trustworthy. 16. In Bharwada Bhogindbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, the apex Court held as under : "A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment The sub-conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment/ "Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" achoes in favour of the version narrated by the witnesses." 17. In Appabhai and another v. State of Gujarat, AIR 1988 SC 696, the Apex Court took similar view and held as under : "13. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witness altogether if they are otherwise trustworthy." 18. In the case in hand, the occurrence took place in the year 1994 and prosecution witnesses were examined in the years 1997-98. This delay evidently was sufficient to make the witnesses forget about the minor details like time etc. Therefore, the minor contradictions occurring in the statements of the witnesses are of no use and consequence and the material account given by the concerned witnesses relating to the causing of injuries to the injured by the accused persons can, therefore, not be suspected and both the courts below have rightly believed the version about the beating of PW-1 by the accused persons. 19. In view of the above, no fault could be found with the impugned judgment convicting the accused persons. 20. It was contended by the learned Counsel for the accused persons that in case the accused persons are not found entitled for acquittal, benefit of the provisions of Section 3 of the Probation of Offenders Act may be given to them as by now they have grown up into sensible and responsible citizens and are well settled in life. 21. It may be pointed out that PW-1 is the uncle of the accused persons. The reason for beating him by the accused persons as appears from the material on record is that PW-1 who is an Ex-serviceman had been advising A-l to leave bad company and smocking etc. It led Ramesh to retaliate in the manner as he did in connivance with A-2 to A-3. Therefore, this is a case where the accused persons deserved more deterrent punishment than what has been imposed on them. It led Ramesh to retaliate in the manner as he did in connivance with A-2 to A-3. Therefore, this is a case where the accused persons deserved more deterrent punishment than what has been imposed on them. Therefore, the accused persons are not entitled for the benefit of probation as prayed for. 22. In view of the above conclusions the impugned judgment does not call for any interference by this Court. 23. As a result, this petition merits dismissal and is accordingly dismissed.