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2013 DIGILAW 301 (HP)

GARJA RAM v. STATE OF HIMACHAL PRADESH

2013-04-11

SANJAY KAROL

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JUDGEMENT SANJAY KAROL, J. 1. ASSAILING the judgment dated 1.3.2006, passed by the learned Judicial Magistrate, 1st Class, Bilaspur, District Bilaspur, H.P., in Case No. 850/1 of 99/97, titled as State of H.P. versus Garja Ram, as affirmed by the learned Sessions Judge, Bilaspur, District Bilaspur, H.P., vide judgment dated 1.11.2006, passed in Criminal Appeal No. 9 of 2006, titled as Garja Ram versus State of Himachal Pradesh, the accused petitioner has filed the present Revision Petition under the provisions of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. 2. HAVING heard the learned counsel for the parties as also perused the record, I am of the considered view that ground for interference is made out by the petitioner. In my considered view the Courts below have erred in completely and correctly appreciating the evidence led by the prosecution which has resulted into travesty and miscarriage of justice. The police officials did not associate any independent person from the spot/locality during the course of investigation and the testimonies of material prosecution witnesses who are the police officials i.e. HHC-Dhani Ram (PW-2) and HC-Brij Lal (PW-3), to a great extent, do not inspire confidence being contradictory in nature on a material fact. It is the case of the prosecution that on 5.1.1997 HHC-Dhani Ram (PW-2) and HC-Brij Lal (PW-3) were deputed on patrol duty at Kandraur bridge which is near Bilaspur, District Bilaspur, H.P. At 9.30 p.m. they saw the accused in an inebriated condition. The police party asked the accused to go home but in stead he started abusing them. On inquiry, accused identified himself as Garja Ram. The accused was immediately arrested, brought from village Kandraur to village Ghaghas and them from Ghaghas to Bilaspur Police Station, where rapat (Ext. PW 3/B) was recorded. The accused was taken for medical examination and Dr. Milap Sharma (PW-1) after medical examination issued MLC (Ext. PW 1/A). With the completion of investigation, challan was presented in the Court for trial. 3. NOTICE of accusation was put to the accused for having committed offences punishable under Sections 290 and 510 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. IN order to establish its case, prosecution examined as many as three witnesses. 3. NOTICE of accusation was put to the accused for having committed offences punishable under Sections 290 and 510 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. IN order to establish its case, prosecution examined as many as three witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded in which he took up the plea of false implication. After trial, accused was convicted for having committed offences punishable under Sections 290 and 510 of the Indian Penal Code and sentenced to pay a fine of Rs. 200/- for offence under Section 290 of the Indian Penal Code and simple imprisonment till the rising of the Court for offence under Section 510 of Indian Penal Code. In default of payment of fine, the accused was ordered to undergo simple imprisonment for one month. The lower Appellate Court has affirmed the judgment of conviction and sentence passed by the trial Court. 5. SIGNIFICANTLY in the instant case the medical certificate (Ext. PW- 1/A) reveals that there were injury marks on the body of the accused. Now police has not explained these injury marks. It is not the case of the prosecution that the accused had fallen down as a result of which he had sustained such injuries or that he had been beaten up by someone, prior to the patrolling party seeing him. The injury is no doubt simple in nature but it is fresh. Further, the Doctor (PW-1) has admitted it to be correct that in some medicines alcohol is used. Curiously, the Doctor states that there was no need for examination of blood and urine. Now it is not for the doctor to decide as to whether any further examination was required or not. No breath analyzer test was conducted. Prosecution has not come out with any explanation for not getting the blood and urine of the accused examined. It was not so recommended by the Doctor during investigation. In the backdrop of the entire circumstances it would have been only appropriate and prudent for the investigating authority to have done so. This I say so for the fact that the Doctor himself has admitted that the injuries found on the body of the accused were of less than six hours duration. 6. In the backdrop of the entire circumstances it would have been only appropriate and prudent for the investigating authority to have done so. This I say so for the fact that the Doctor himself has admitted that the injuries found on the body of the accused were of less than six hours duration. 6. COMING to the statement of the police officials, I find that they have not come out with the whole truth. It is a common knowledge that Kandraur is a busy station. In fact, it is a junction between National Highways No. 88 and 21. HHC-Dhani Ram (PW-2) admits that at Kandraur Chowk itself there are 20 to 25 shops. The incident took place at 9.30 p.m. It was not in the middle of the night that the incident occurred. The police officials have no explanation as to why no independent witnesses from the nearby shops or locality were associated at the time when the incident took place. To my mind, the presence of police officials i.e. HHC Dhani Ram (PW-2) and HC-Brij Lal (PW-3) on the spot itself appears to be doubtful. These witnesses have not placed any material on record to show that at the time of occurrence of the incident they were deputed to patrol the place in question. They have specifically not explained their presence on the spot. That apart, PW-2 states that the accused was taken from Kandraur to Ghaghas and then from Ghaghas to Bilaspur in a truck which version stands materially contradicted by PW-3 according to whom the accused was brought from Ghaghas to Bilaspur in a bus. Noticeably, both these witnesses did not remember the number of the vehicles in which the accused was brought from the spot to Bilaspur. It is not the case of the prosecution that the accused was creating public nuisance or had also abused other persons. 7. NON association of any independent witness, also in the absence of any proof, beyond reasonable doubt, with regard to the offence having been committed in a public place, only renders the prosecution version to be doubtful. 8. HENCE, for all the aforesaid reasons, I find that prosecution has not been able to prove its case beyond reasonable doubt by leading clear, cogent and convincing evidence. 8. HENCE, for all the aforesaid reasons, I find that prosecution has not been able to prove its case beyond reasonable doubt by leading clear, cogent and convincing evidence. As stated herein earlier, the Courts below have not properly appreciated the testimonies of the witnesses and the material on record which has resulted into perversity and also travesty of justice. In view of the aforesaid discussions, I am of the considered view that it cannot be said that the judgments passed by the Courts below are sustainable in law. Hence the same needs to be reversed. The finding of conviction and sentence are set aside. Accused is acquitted. Bail bonds furnished by the accused are directed to be discharged. With the aforesaid observations, present revision petition stands disposed of, so also the pending applications, if any. Records of the courts below be immediately sent back.