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2016 DIGILAW 1220 (HP)

Ajay Kumar @ Aju v. State of HP

2016-06-29

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of present petition, the petitioner has challenged judgment dated 27.8.2009 passed by the Court of learned Additional Sessions Judge, Fast Track Court, Hamirpur, in Cr. Appeal No. 6 of 2008 vide which judgment, the learned Appellate Court has dismissed the appeal of the accused and upheld the judgment of conviction and sentence passed by the Court of learned CJM, Hamirpur in Cr. Case No. 8-1 of 2006/72-II of 2006 dated 22.2.2008 under Sections 452, 427, 325 and 506 IPC. 2. The case of the prosecution was that PW1-Rakesh Kumar was working as a receptionist in Hotel Hill Side. PW2- Durga Dass was working as cook. Subhash Mahanti was working as House Keeper. Ram Chand was working as Masalchi and Sanjeev Sharma was working as Waiter in the said Hotel. On 31.8.2005 at about 8:30 p.m., accused Aju placed an order for chilli chicken with Sanjeev Sharma and thereafter went into the kitchen and enquired from Ram Chand as to who else was present in the kitchen. Onkar Chand went to bathroom. Ram Chand asked him as to whom did he want. This infuriated Aju and he picked up jug and splashed water in the jug on the face of Subhash and also slapped him. Durga Dass came out. Aju inflicted 2-3 blows on the head of Durga Dass by means of steel jug and entered inside the bar room. He threw and broke one bottle bearing mark Bagpiper on the floor. Efforts were made to pacify him (accused), however, he entered the kitchen and gave beatings to Ram Chand. When efforts were made to contact police, accused ran away. On the basis of telephonic intimation, entry was recorded in Daily Diary vide Ext. PW3/A. HC-Pardeep Kumar (PW5) visited the spot and recorded statement of Rakesh Kumar, Ext. PW5/A on the basis of which, FIR Ext.PW5/B was registered. After completion of the investigation, challan was prepared and presented before the Court. As a prima facie case was made out, accordingly, accused was charged for the offences punishable under Sections 451, 323, 427 and 506 IPC. The accused pleaded not guilty and claimed to be tried. 3. In order to substantiate its case, the prosecution, in all, examined five witnesses. One witness was examined by the defence. 4. As a prima facie case was made out, accordingly, accused was charged for the offences punishable under Sections 451, 323, 427 and 506 IPC. The accused pleaded not guilty and claimed to be tried. 3. In order to substantiate its case, the prosecution, in all, examined five witnesses. One witness was examined by the defence. 4. On the basis of material placed on record by prosecution, the learned Trial Court came to the conclusion that prosecution had succeeded in proving its case beyond reasonable doubt against accused for offences punishable under Sections 451, 323, 427 and 506 IPC and accordingly it convicted the accused for the offences under said Sections. The accused was sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs. 3,000/- and in default to undergo simple imprisonment for a period of three months for the offence punishable under Section 451 IPC. He was further sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs. 1,000/- and in default to undergo simple imprisonment for a period of one month for the offence punishable under Section 323 IPC. He was also sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2,000/- and in default to undergo simple imprisonment for a period of two months for offence punishable under Section 427 IPC, and to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2,000/- and in default to undergo simple imprisonment for a period of two months for offence punishable under Section 506 IPC. All the substantive sentences of imprisonment were ordered to run concurrently. 5. Feeling aggrieved by the said judgment passed by the learned Trial Court accused preferred an appeal before the learned Appellate Court. The learned Appellate Court vide its judgment dated 27.8.2009 upheld the judgment of conviction passed by the learned Trial Court as well as the sentences passed by the learned Trial Court and dismissed the appeal filed by the accused. The leaned Appellate Court also refused the contention of the accused to give him benefit of Probation of Offenders Act. 6. Feeling aggrieved by the said judgments passed by learned courts below, the accused has filed the present revision petition. 7. The leaned Appellate Court also refused the contention of the accused to give him benefit of Probation of Offenders Act. 6. Feeling aggrieved by the said judgments passed by learned courts below, the accused has filed the present revision petition. 7. Learned counsel for the petitioner argued that the judgments passed by both the learned Courts below were perverse and not sustainable in law. According to him, the conclusions which have been arrived at by the learned Trial Court and which were upheld by the learned Appellate Court were not borne out from the records of the case. According to him, both the learned Courts below erred in convicting the accused. He submitted that both the learned Courts below erred in not appreciating that the petitioner had not committed any offence punishable under Section 427 of the IPC, as there was no proof that the value of the bottle allegedly broken by accused was more than Rs. 50/-. He further argued that similarly no offence was made against the petitioner under Section 452 IPC because the place where the alleged incident took place was a public place. It was further submitted that there was no medical evidence placed on record by the prosecution to substantiate that the petitioner had committed offence under Section 323 IPC nor there was corroboration by the prosecution to the effect that the petitioner had committed an offence under Section 506 IPC. The learned counsel for the petitioner also argued that the learned Trial Court had erred in not granting the benefit of Section 360 of the Cr.P.C. to the petitioner and the judgment passed by the learned Courts below were thus liable to be set aside on this ground alone. It was also contended that both the learned Courts below had erred in not appreciating the provisions of Section 95 of the IPC. 8. On the other hand, learned Addl. Advocate General argued that the prosecution had successfully proved on record beyond reasonable doubt that the petitioner was guilty of commission of offences for which he has been convicted. He also argued that the contention being raised on behalf of the petitioner with regard to provisions of Section 360 Cr. P.C. was totally misplaced and further the provisions of Section 95 of IPC had no applicability in the facts of the case. 9. He also argued that the contention being raised on behalf of the petitioner with regard to provisions of Section 360 Cr. P.C. was totally misplaced and further the provisions of Section 95 of IPC had no applicability in the facts of the case. 9. I have heard learned counsel for the parties and also gone through the records of the case as wells as the judgments passed by the learned courts below. 10. In my considered view there is neither any infirmity nor any perversity with the judgments passed by the learned Courts below. The learned Trial Court has rightly convicted the accused for the commission of offences because all the charges leveled against him were duly substantiated by the prosecution on the basis of material placed on record. 11. It has come in the statement of PW4 that the value of bottle which was broken by the accused and which was only partly consumed was Rs. 276/-. The testimony of the said witness to this effect has not been impinged by the defence. Therefore, it cannot be said that the findings returned by the learned Courts below to the effect that the petitioner had committed an offence punishable under Section 427 IPC are perverse and are not borne out from the record. 12. It has come on record that the accused had entered the premises of the kitchen in Hotel Hill Side. The evidence placed on record in this regard by the prosecution has also remained unshattered. It is apparent that in his capacity as a customer the accused had no right to enter the kitchen of the Hotel and accordingly in my considered view he has been rightly convicted for an offence punishable under Section 451 IPC. 13. In the present case, it has been established on record by the prosecution that accused after trespassing hit Durga Dass with a jug and before that he picked up a jug filled with water and threw the same on the face of Subhash and also slapped him. He also gave beatings to Ram Chand. The prosecution witnesses have duly corroborated the same. Therefore, it cannot be said that the learned Courts below have erred in convicting the accused for commission of offence punishable under Section 323 IPC. 14. Section 319 IPC defines ‘hurt’ as under:- “319. He also gave beatings to Ram Chand. The prosecution witnesses have duly corroborated the same. Therefore, it cannot be said that the learned Courts below have erred in convicting the accused for commission of offence punishable under Section 323 IPC. 14. Section 319 IPC defines ‘hurt’ as under:- “319. Hurt.-Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” 15. Section 321 IPC defines ‘voluntarily causing hurt’ as under:- “321. Voluntarily causing hurt.-Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said ‘voluntarily to cause hurt’.” 16. Section 322 IPC provides as under:- “322. Voluntarily causing grievous hurt.-Whoever voluntarily cause hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said ‘voluntarily to cause grievous hurt.’. Explanation.- A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.” 17. In my considered view, the argument of the learned counsel for the petitioner that in the absence of any medical evidence, there could not have been any conviction under Section 323 IPC deserves outright rejection because there is no mandate of law that there can’t be any conviction under Section 323 IPC in the absence of medical evidence. 18. Similarly, testimony of PW1 clearly proves that the offence of criminal intimidation was committed by the petitioner. It has come in the statement of said witness that accused had given abuses and warnings. This deposition of PW1 has not been shattered by the defence. Therefore, in my view the learned Trial Court has rightly convicted the accused for commission of offence punishable under Section 506 IPC and the learned Appellate Court has rightly upheld the said conviction. 19. This deposition of PW1 has not been shattered by the defence. Therefore, in my view the learned Trial Court has rightly convicted the accused for commission of offence punishable under Section 506 IPC and the learned Appellate Court has rightly upheld the said conviction. 19. Learned counsel for the petitioner has not been able to draw the attention of this Court towards any major contradictions or improvements in the statements of prosecution witnesses from which it can be inferred that the findings returned by the learned Courts below are either perverse or not borne out from the material on record. 20. It has been held by the Hon’ble Supreme Court in Janta Dal Vs. H.S. Chowdhury & others, 1992 (4) SCC 305 that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals. 21. This Court has to exercise its revisional powers sparingly. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case. 22. As far as the applicability of provision of Section 95 IPC is concerned, in my considered view the provision of Section 95 of IPC do not have any applicability in the facts and circumstances of the present case because this is not a case where it can be said that no person of ordinary sense and temper would complain of such harm as has been inflicted by accused. 23. Now, I will deal with the contention of learned counsel for the petitioner with regard to applicability of Section 360 Cr.P.C. The argument of learned counsel for the petitioner that learned Courts below have failed to appreciate the provision of Section 360 Cr.P.C. also deserves outright rejection. 24. This is for the reason that it has been held by Full Bench of this Court in State of Himachal Pradesh Vs. 24. This is for the reason that it has been held by Full Bench of this Court in State of Himachal Pradesh Vs. Lat Singh and others, 1990 CriLJ 723 that the provisions of Section 360 of the Criminal Procedure Code (Cr.P.C.) are inapplicable to the State of Himachal Pradesh, as the provisions of Probation of Offenders Act have been brought into force in the State. 25. In Chhanni Vs. State of U.P. (2006) 5 SCC 396 this view has been reiterated by Hon’ble Supreme Court in Daljit Singh and others Vs. State of Punjab (2006)6 SCC 159 which has been further reiterated by the Hon’ble Supreme Court of India in Gulzar Vs. State of M.P. (2007) 1 SCC 619 that when the provisions of Probation of Offenders Act are applicable, the employment of Section 360 of Cr.P.C. is not to be made. 26. Further as far as the grant of benefit of Probation of Offenders Act is concerned, the learned Appellate Court has held by recording reasons that the present petitioner does not deserves benefit of probation and leniency and further the sentences imposed against him by the learned Trial Court were appropriate. This court concurs with the findings so arrived at by the learned courts below. Accordingly, in my considered view there is neither any perversity nor any infirmity with the judgments passed by the learned Courts below and the findings returned by the said Courts are duly substantiated from the records of the case. In this view of the matter, the present revision petition is dismissed being devoid of any merit.