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2012 DIGILAW 487 (HP)

Som Dutt v. State of Himachal Pradesh

2012-09-03

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, J. The petitioner has suffered conviction in both the Courts below under Sections 353, 332 IPC and has come in revision against judgment dated 29.10.2005 passed by learned Sessions Judge, Kullu in Criminal Appeal No. 23/2005, affirming judgment dated 1.7.2005 passed by learned Judicial Magistrate Ist Class, Manali in Criminal Case No. 88-1/2002-96-II/2002. 2. The prosecution case in brief is that on 21.1.2002 at about 7.15 p.m., PW-1 Shiv Kumar complaintant while discharging public duty as driver stationed HRTC Bus No.HP-07-5462 at bus stand, Manali for proceeding to Shimla. The petitioner was on the wheels of Bus No.HP34A-1825, struck his bus with the bus of the complainant, side mirror of the bus of the complainant was broken. The complainant asked the petitioner about the damages, the petitioner attacked PW-1 and voluntarily caused hurt to the complainant by giving fist and ring blows and deterred the complainant from discharging his public duty. 3. The matter was reported by the complainant to PW-3 Mangal Singh, Booking Clerk, who in turn reported the matter to the police. Ex.PW-1/A statement under Section 154 Cr.P.C. was recorded and thereupon FIR Ex.PW-7/A was registered. The Investigating Officer prepared spot map Ex.PW-7/B, took into possession ring Ex.P-1 vide seizure memo Ex.PW-5/A. On completion of investigati on Section 173 Cr.P.C. report was filed. 4. The petitioner was charged for offences punishable under Sections 353, 332 IPC. He pleaded not guilty. The prosecution has examined seven witnesses, some documents were also produced. The statement of petitioner was recorded under Section 313 Cr.P.C. He denied the prosecution case but led no evidence in defence. On conclusion of trial, learned Magistrate convicted and sentenced the petitioner under Sections 353, 332 IPC on 1.7.2005. The appeal filed by the petitioner was dismissed by learned Sessions Judge on 29.10.2005, hence revision. 5. Heard and perused the record. The learned counsel for the petitioner has submitted that the Courts below have misconstrued and misinterpreted the evidence on record in convicting and sentencing the petitioner. There are material contractions in the prosecution evidence which go to the root of the case. The two Courts below have not considered such contradictions. The prosecution has not produced independent witnesses, though such witnesses were available, only interested witnesses have been examined. The sentence imposed is excessive. The submission has been made for acceptance of the revision. The learned Dy. The two Courts below have not considered such contradictions. The prosecution has not produced independent witnesses, though such witnesses were available, only interested witnesses have been examined. The sentence imposed is excessive. The submission has been made for acceptance of the revision. The learned Dy. Advocate General has supported the impugned judgment. He has submitted that the two Courts below have rightly appreciated the material on record. The scope in revision is narrow. He has submitted for dismissal of the revision. 6. PW-1 Shiv Kumar complainant has stated that he had been working as driver in Himachal Road Transport Corporation since the year 1991. On the date of occurrence he was driver of Bus No.HP-07-5462. He had brought the bus from Shimla on 21.1.2002 and at about 7 p.m. parked the bus in the bus stand, Manali. The driver of Bus No.HP-34-1825 struck his vehicle with the front of bus No. HP-07-5462 and sped away, as a result of impact of Bus No.HP34-1825 the front glass of Bus No. HP-07-5462 had broken with dent on the front side. 7. PW-1 continued, he asked the said driver what he had done. There were other drivers also but petitioner hit him with sharp edged bracelet/ wristlet (kara) on the right eye, blood oozed out. The conductor Sanjay Kumar, another driver Harvinder Singh, Booking Clerk Mangal Chand had also seen the occurrence. The police reached the spot and his statement Ex.PW-1/A was recorded. In the cross-examination he has stated that there were many persons in the bus stand at that time. The occurrence took place 5-7 minutes before his departure time but the bus left at 11 p.m, another driver drove the bus. He went in the same vehicle and took rest for five days. He denied that the report was lodged by him to pre-empt departmental enquiry. He denied that the front glass had broken due to his own fault. 8. PW-2 Harvinder Singh has stated that he is a driver in HRTC. He reached Manali from Shimla at about 6.45 p.m. and at that time Bus No.HP-07-5462 of Shiv Kumar was on the counter. Shiv Kumar was standing out side. A bus of Sood Transport came and struck the bus of Shiv Kumar, who asked the said driver what he had done. On this, the other driver hit him with bracelet which caused injuries on the eye and blood oozed out. Shiv Kumar was standing out side. A bus of Sood Transport came and struck the bus of Shiv Kumar, who asked the said driver what he had done. On this, the other driver hit him with bracelet which caused injuries on the eye and blood oozed out. 9. PW-3 Mangal Singh Negi has stated that on 21.1.2002 he was sitting in his office, Shiv Kumar, Harvinder and Sanjay Kumar came there and told him that driver of Sood Bus No.HP-34-1825 quarreled with the complainant, who was injured. He advised them to report to the police. He has stated that occurrence took place 100 feet away from his office. 10. PW-4 Dr. Dorje Angroop has stated that he examined Shiv Kumar on 21.1.2002 and issued MLC Ex.PW-4/A. The injuries could be caused with a ring or kara. In cross-examination he has stated that injuries can be caused by fall on a hard surface. PW-5 Prem Chand has stated that Som Dutt produced ring Ex.P-1 which was recovered vide memo Ex.PW-5/A. 11. PW-6 Sanjay Kumar has stated that on 21.1.2002 he was conductor on Bus No. HP-07-5462. As soon as his bus reached the gate, Bus No.HP-34-1825 entered and broke the driver side back glass, Shiv Kumar asked the driver of Bus No.HP-34-1825 what he had done, Shiv Kumar was beaten but he does not know with what beatings were given. It was dark. In the cross-examination he has stated that he and Shiv Kumar took the bus to Shimla. 12. PW-7 Sub Inspector K.S. Guleria is the Investigating Officer. He has proved FIR Ex.PW-7/A, spot map Ex.PW-7/B, ring Ex.P-1, appointment and posting orders of complainant Ex.PW-7/D and Ex.PW-7/E. In the statement under Section 313 Cr.P.C. the petitioner has denied the prosecution case. 13. The complainant has stated that as a result of impact of Bus No.HP34-1825, front glass of Bus No. HP-07-5462 had broken. PW-6 Sanjay Kumar conductor of Bus No. HP-07-5462 has stated that driver side back glass of Bus No. HP-07-5462 had broken. PW-6 has also stated that as soon as Bus No. HP-07-5462 reached the gate, Bus No.34A-1825 came there and hit Bus No. HP-07-5462. In other words complainant Shiv Kumar was still in his bus, however, PW-2 Harvinder Singh has stated that Bus No. HP-07-5462 was on the counter when he brought Bus No.HP-42-0783 from Shimla to Manali. Shiv Kumar was standing out side the bus. In other words complainant Shiv Kumar was still in his bus, however, PW-2 Harvinder Singh has stated that Bus No. HP-07-5462 was on the counter when he brought Bus No.HP-42-0783 from Shimla to Manali. Shiv Kumar was standing out side the bus. Sood Transport Bus came and hit the Bus No. HP-07-5462. 14. In view of statement of PW-6, the very presence at the place of accident of PW-2 Harvinder Singh is doubtful. There are major contradictions in the statement of PW-2 and PW-6 regarding the position of Bus No. HP-07-5462 at the time of accident. PW-1 Shiv Kumar has not stated that at the time of accident he was standing out side Bus No. HP-07-5462. On the contrary, in his statement under Section 154 Cr.P.C. Ex.PW-1/A, PW-1 has stated that petitioner struck the Bus No. HP-07-5462. The complainant was continuously blowing the horn for stopping the bus, thereafter complainant came out of the bus. 15 In the statement under Section 154 Cr.P.C. Ex.PW-1/A, the complainant has stated that petitioner gave fist blow on his face which hit him on the right eye. He sustained injuries due to the impact of bracelet or ring. PW-5 has stated that petitioner produced ring Ex.P-1 which was recovered vide recovery memo Ex.PW-5/A. PW-1 has stated that he was hit by bracelet. PW-1 was not shown ring Ex.P-1 nor he has stated that he was hit by ring Ex.P-1. 16 PW-4 Dr. Dorje Angroop has noticed two injuries on the person of PW-1 in MLC Ex.PW-4/A. The complainant has stated that petitioner gave him single blow. PW-4 has not stated that both the injuries mentioned in MLC Ex.PW-4/A could be caused with one blow. Similarly, Ex.P-1 was not shown to doctor to seek his opinion whether injuries mentioned in MLC Ex.PW-4/A can be caused by ring Ex.P-1. The distinction between bracelet and ring (anguthi) is well know even to ordinary person. 17. PW-1 complainant in the Court and PW-2 Harvinder Singh have stated that complainant was hit by bracelet but no such bracelet has been recovered during investigation and produced in the Court. There is no explanation to this effect. PW-3 Mangal Singh Negi, Booking Clerk is not an eye witness. PW-6 Sanjay Kumar has not stated that petitioner hit complainant either with bracelet or ring. 18. There is no explanation to this effect. PW-3 Mangal Singh Negi, Booking Clerk is not an eye witness. PW-6 Sanjay Kumar has not stated that petitioner hit complainant either with bracelet or ring. 18. In statement under Section 313 Cr.P.C., question No.4 was put to petitioner that he voluntarily caused hurt to complainant by giving fist and iron ring blows. In other words, it was put to petitioner that he gave more then one blow to the complainant, ring Ex.P-1 was not specifically put to him. It has come in the evidence that there were many persons in the bus stand at that time but surprisingly during investigation no independent person was joined and examined in the Court. The Investigating Officer joined all material witnesses from H.R.T.C. only which according to the petitioner are interested as complainant is an employee of H.R.T.C. This submission of the petitioner cannot be out rightly rejected in the facts and circumstances of the case. 19. The learned counsel for the petitioner has submitted that prosecution has not placed duty roster of the complainant in order to prove that at the relevant time he was discharging public duty. The appointment and posting orders of the complainant have been placed on record. The petitioner during trial at no point disputed that complainant was not discharging public duty at the relevant time. There is no force in this contention. 20. The Dy. Advocate General has submitted that in revision the scope of interference is limited. In Krishnan and another vs. Krishnaveni and another (1997) 4 SCC 241 , it has been held 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 juridical process or illegality of sentence or order. In the present case, the two Courts below have misconstrued and misinterpreted the evidence. The material contradictions which go to the root of the case have not been considered. 21. The prosecution is required to prove the case beyond reasonable doubt. In the present case, the two Courts below have misconstrued and misinterpreted the evidence. The material contradictions which go to the root of the case have not been considered. 21. The prosecution is required to prove the case beyond reasonable doubt. In view of contradictions which have come on record in the evidence led by the prosecution, it cannot be said that prosecution has proved the case against the petitioner beyond reasonable doubt. PW-4 Dr. Dorje Angroop has stated that injuries noticed by him in the MLC Ex.PW-4/A can be caused due to fall on hard surface. The petitioner is entitled to benefit of doubt. The judgments of conviction and sentence of petitioner recorded by two Courts below are not sustainable. 22. In view of above, the revision is allowed. The judgment dated 29.10.2005 passed by learned Sessions Judge, Kullu in Criminal Appeal No.23/2005, affirming judgment dated 1.7.2005 passed by learned Judicial Magistrate Ist Class, Manali in Criminal Case No.88-1/2002-96-II/2002, convicting and sentencing the petitioner under Sections 353, 332 IPC are set aside, petitioner is acquitted of the charge. The fine amount, if any deposited by the petitioner, be refunded to him, his bail bonds are discharged.