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2016 DIGILAW 1032 (HP)

Yash Pal @ Jassu v. State of Himachal Pradesh

2016-06-03

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. The present petition has been filed against judgment passed by the Court of learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, in Criminal Appeal No. 34- D/2005/03 dated 7.7.2007, vide which the Learned Appellate Court has upheld the judgment of conviction passed by the Court of learned JMIC(1), Dharamshala in Criminal Case No. 11-II/03 dated 3.4.2003 and 4.4.2003 against the petitioner by disallowing his appeal while allowing the appeal of other co-accused, who have been acquitted of the offences alleged against them by modifying the judgment passed by the Learned Trial Court. 2. The case of the prosecution in brief is that on 31.12.2002 at around 9:15 p.m. complainant, Ashwani Kumar, was coming in his personal vehicle Tata-407 from Jassor towards Kangra. When he reached at a place known as Chattri on the National Highway, all accused by forming an unlawful assembly in prosecution of their common object committed rioting and wrongfully restrained the complainant and his driver from proceeding in a direction in which they had right to proceed by standing on the road. The accused also gave beatings to the complainant with a pointed object i.e. Grip and caused injury to him. The matter was reported by the complainant to police, on the basis of which Rapat, Ext.PW5/A, was recorded and FIR Ext.PW6/B was registered against all the accused. After investigation, challan was filed against all accused for trial under Sections 341, 324, 147 and 149 of Indian Penal Code (in short ‘IPC’). The accused pleaded not guilty and claimed trial. 3. The Learned Trial Court on the basis of material produced before it by the prosecution, convicted the accused (5 in number) under Sections 341, 324, 147 read with Section 149 IPC and sentenced them to under simple imprisonment for one month each and to pay fine of Rs. 250/- each under Section 341 IPC and to undergo rigorous imprisonment for six months each and to pay fine of Rs. 500/- each under Section 324 IPC and also to undergo rigorous imprisonment for three months each and to pay fine of Rs. 250/- each under Section 147 IPC. All the sentences were ordered to run concurrently. 4. Feeling aggrieved by the said judgment passed by the Learned Trial Court, all the accused preferred joint appeal. 5. 500/- each under Section 324 IPC and also to undergo rigorous imprisonment for three months each and to pay fine of Rs. 250/- each under Section 147 IPC. All the sentences were ordered to run concurrently. 4. Feeling aggrieved by the said judgment passed by the Learned Trial Court, all the accused preferred joint appeal. 5. The Learned Appellate Court vide its judgment dated 7.7.2007 held that the prosecution had established beyond shadow of doubt that passage of complainant, Ashwani Kumar, was obstructed by the accused when he reached near Chattari and the prosecution had also established beyond any shadow of doubt that one of the person who had obstructed the passage was Jassu @ Yashpal, that is, the present petitioner. The Learned Appellate Court further held that as far as the identity of A2 to A5 is concerned, the prosecution had not succeeded in establishing the same beyond any shadow of doubt that A1 Yashpal was accompanied by A2 to A5 while beating complainant, Ashwani Kumar and his driver. Accordingly, the Learned Appellate Court acquitted A2 to A5 by giving them benefit of doubt. However, as far as the appeal by the present petitioner is concerned, the same was dismissed as it was held by the Learned Appellate Court that it stood established beyond any reasonable doubt that accused had caused injury on the person of Ashwani Kumar accompanied by four other persons and he had been rightly convicted by the Learned Trial Court. 6. Mr. Rajesh Mandhotra has strenuously argued that the judgment passed by both the learned Courts below vide which the petitioner had been convicted for the offences alleged against him were perverse and not sustainable in the eyes of law. He submitted that no offence as alleged against the petitioner was, in fact, ever committed by him. It was a case of mistaken identity and the prosecution had failed to establish on record that petitioner Yashpal, in fact, is accused Jassu who has allegedly identified by the complainant as being one of the assailants who wrongfully restrained him and assaulted him. According to Mr. Mandhotra, the learned Courts below had failed to appreciate that the statements of PW3 i.e. the complainant and his driver PW4 were full of inconsistencies and they do not inspire confidence on the basis of which a person could have been convicted. According to Mr. Mandhotra, the learned Courts below had failed to appreciate that the statements of PW3 i.e. the complainant and his driver PW4 were full of inconsistencies and they do not inspire confidence on the basis of which a person could have been convicted. He further argued that there is no material on record to substantiate that the person identified to be Jassu by the complainant, in fact, was petitioner Yashpal. According to him, the complainant nowhere identified petitioner Yashpal to be the same person i.e. Jassu who along with four other persons wrongfully restrained him and assaulted him. Besides this, Mr. Mandhotra argued that even otherwise the said judgments were bad and not sustainable because the findings arrived at by both the learned Courts below as far as the petitioner is concerned, were not borne out from the record. Both the Courts below have failed to appreciate that there was no material on record to substantiate that it was, in fact, the petitioner who had inflected injury on the complainant. He further argued that keeping in view the fact that the alleged incident took place during night hours and total number of assailants was five in number, out of which four have been acquitted by the Learned Appellate Court in appeal, the petitioner also deserved acquittal because he was also entitled to the same benefit of doubt which the Learned Appellate Court gave to other four accused i.e. A2 to A5. 7. On the other hand Mr. Chauhan, learned Addl. Advocate General submits that there was no perversity in the judgment passed by the learned Courts below vide which the present petitioner had been convicted for the offences with which he was charged. Mr. Chauhan has further argued that there is no cross-examination of the complainant on behalf of the present petitioner to the effect that the petitioner was not Jassu who was identified by the complainant as one of the assailants on the fateful night. He has further argued that, in fact, neither in the grounds of revision petition nor in the grounds of appeal filed before the Learned Appellate Court it has been urged on behalf of the present petitioner that it is a case of mistaken identity and that he was not Jassu who was allegedly identified by the complainant to be one of the assailants. According to Mr. According to Mr. Chauhan, it was a total new case which was being built up by the petitioner which otherwise was without any substance. According to him, the statements of the prosecution witnesses and other material placed on record by the prosecution proved beyond reasonable doubt that it was the petitioner who had wrongfully restrained the complainant along with four other persons and had also caused injuries upon the person of the complainant and therefore, the judgments passed by learned Courts below convicting the said petitioner were not perverse and the findings of the learned Courts below were based on the material on record. 8. I have heard learned counsel for the parties and also gone through the records of the case. 9. The complainant has appeared in the witness box as PW3. In his statement, he has deposed that on the fateful night he was traveling in his vehicle along with his drivers Budhi Singh and Raj Kumar and when they reached Chattri five persons were drunk blocked the road of their vehicle. On this, his driver Budhi Singh stopped the vehicle. The accused opened the driver’s door and started beating the driver. When the complainant intervened they started beating him and in this course they hit him with a grip on his face. He has further deposed that he identified one of the assailants who was Jassu, whereas he could not identify the other persons. In his cross-examination he has reiterated that when they reached Chattri at around 9:20 p.m. all accused came and stood in front of their vehicle. He has also stated in his cross-examination that he knows accused Jassu. There is no cross-examination of this witness to the effect that accused Yashpal was not the same Jassu who was identified by the complainant as one of the assailants on the fateful night. PW4, Budhi Singh, driver of the complainant has also supported the story of the prosecution and a perusal of his statement as well as his cross examination demonstrates that there was no major contradiction between his statement and that of PW3 as far as occurrence of the event is concerned. He has stated that when his employer had lodged report with the police, he had the name of Jassu recorded by him with police. ASI Kailash Chand has deposed as PW6 and he has stated that accused were identified by the complainant. 10. He has stated that when his employer had lodged report with the police, he had the name of Jassu recorded by him with police. ASI Kailash Chand has deposed as PW6 and he has stated that accused were identified by the complainant. 10. PW1 Dr. Mohan Chaudhary has substantiated that the complainant had received injuries which was caused by a pointed weapon. 11. In my considered view the petitioner has not been able to establish on the basis of material on record that this is a case of mistaken identity. Statements of PW3, PW4 and PW6 read harmoniously do not leave any iota of doubt that it was the petitioner who had identified by the complainant as one of the accused who wrongfully restrained him and caused injury to his body. 12. There is no suggestion at any stage given to PW3 by the defence on behalf of the present petitioner that Jassu who was being referred to by the complainant as one of the assailants was not petitioner but someone else. Further the petitioner has not only been named in the FIR by the complainant as the person who was identified by him as one of the assailants but he has also identified by the complainant in the Court as one of the assailants. 13. Further in my considered view, there was no need to hold any test identification parade. The contention of the learned counsel for the petitioner that there is no material on record that any test identification parade was held in which the present petitioner was identified as one of the assailants by complainant is also misconceived because in the present case the petitioner was known to the complainant and the complainant has identified him as one of the assailants by stating that he has identified one of the five assailants, who was Jassu, that is, the present petitioner. 14. Even otherwise, it is well settled law that failure to hold test identification parade even after the demand of accused is not always fatal and it is only one of the relevant factors to be taken into consideration along with the other evidence produced on record. If the claim of the eye witnesses that they knew accused is found to be correct then failure to hold test identification parade has been held inconsequential by the Hon’ble Supreme Court in Surendra Narain alias Munna Pandey Vs. If the claim of the eye witnesses that they knew accused is found to be correct then failure to hold test identification parade has been held inconsequential by the Hon’ble Supreme Court in Surendra Narain alias Munna Pandey Vs. State of U.P. AIR 1998 Supreme Court 192. 15. Therefore, in my considered view there is no infirmity that the judgments passed by learned Courts below in convicting the petitioner of the offences alleged against him. There is no merit in the contention of the petitioner that this is a case of mistaken identity or that the prosecution even otherwise has not been able to prove its case against the accused beyond reasonable doubt. The judgment passed by the learned Courts below are well reasoned judgments and the findings arrived at by the learned Courts below with regard to the present petitioner are substantiated on the basis of record/material produced on record by the prosecution. Therefore, it cannot be said that the findings of conviction returned by learned Courts below against the accused are either perverse or not sustainable in the eyes lf law. 16. As far as the contention of learned counsel for the petitioner that the present petitioner ought to have been acquitted by the Learned First Appellate Court keeping in view the fact that all other co-accused were acquitted by giving them benefit of doubt is concerned, it is settled law that acquittal of one or more accused is no ground to acquit other co-accused in case there is sufficient material available on record to bring home guilt of a particular accused. In the present case, the prosecution has produced on record sufficient material to bring home the guilt of present accused/petitioner. It has also been stated at the bar by learned Addl. Advocate General that the judgment of acquittal passed against the co-accused has been assailed by way of an appeal by the State in this Court. 17. Lastly the learned counsel for the petitioner has argued on the quantum and has submitted that even otherwise the sentence imposed upon the petitioner is harsh as compared to the offences alleged against him. Advocate General that the judgment of acquittal passed against the co-accused has been assailed by way of an appeal by the State in this Court. 17. Lastly the learned counsel for the petitioner has argued on the quantum and has submitted that even otherwise the sentence imposed upon the petitioner is harsh as compared to the offences alleged against him. However, keeping in view the fact that incident took place as far back as in the year 2002 and the present petitioner has been undergoing the trauma of trial since then, in my considered view, the interest of justice will be served in case the sentence imposed upon the petitioner is modified as under:- Section Sentence imposed Fine 341 Simple Imprisonment of one month Rs. 250/- 324 Simple Imprisonment of one month Rs. 10,000/- 147 Simple Imprisonment of one month Rs. 10,000/- All the sentences shall run concurrently. With the said modification, the petition stands disposed of, so also pending application(s) if any.