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Himachal Pradesh High Court · body

2016 DIGILAW 1749 (HP)

State of H. P. v. Sarwan Singh

2016-08-22

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present criminal revision petition filed under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure is directed against the judgment of acquittal dated 8.7.2008, rendered by the learned Sessions Judge, Hamirpur, H.P., in Criminal Appeal No. 46 of 2007, affirming the judgment of acquittal dated 30.5.2006 passed by the learned Judicial Magistrate, Ist Class, Court No.1, Hamirpur, HP, in Police Challan No. 44-II-1999. 2. Briefly stated facts as emerged from the record are that on 20th November, 1998, S/Sh. Gian Singh, Assistant Mining Inspector (PW3), and Ved Parkash, Mining Guard (PW1) had gone towards Dosarka area for inspection purpose on their official duty. They found unauthorized mining going on there. They inquired from the Munshi/Clerk of the contractor Saligram, namely Shiv Prasad to produce M-Form Book. As per the complainants (PW1 and 3), when they were returning with the M-Form Book, the accused-Sarwan Singh came from behind and assaulted them with ‘danda’ and caused injuries to them. Aforesaid officials filed the complaint Ext.PW1/A before the Mining Officer, Hamirpur, who in turn filed complaint Ext.PW8/A, enclosing therewith complaint Ext.PW1/A before the police on November 20, 1998. Police on the basis of aforesaid complaint, registered the FIR Ext.PW4/A. ASI OM Chand investigated the matter and prepared the site plan Ext.PW6/A after visiting the spot. He also took in possession receipt book Ext.PB from (PW1)Ved Prakash vide memo Ext.PW1/B. Record further reveals that aforesaid officials were medically examined. Police also procured their transfer orders Ext.PW7/A and Ext.PW7/B respectively, which was produced by PW1 Ved Prakash to the Police vide memo Ext.PW7/C. Police after recording the statements of witnesses under Section 161Cr.PC prepared the challan and presented the same before the Court of learned Judicial Magistrate, Ist Class, Court No.1, Hamirpur. Learned trial Court having been satisfied that prima facie case exists against the accused, framed charges under Sections 353 and 332IPC against the accused, to which he pleaded not guilty and claimed trial. Learned trial Court on the basis of material available on record adduced by the prosecution, acquitted the accused from the charges (supra). 3. Feeling aggrieved and dissatisfied with the judgment passed by the learned trial Court, present petitioner-State filed Criminal Appeal before the Court of learned Sessions Judge, Hamirpur, H.P., however, the same was dismissed. Hence this criminal revision petition before this Court. 4. Mr. 3. Feeling aggrieved and dissatisfied with the judgment passed by the learned trial Court, present petitioner-State filed Criminal Appeal before the Court of learned Sessions Judge, Hamirpur, H.P., however, the same was dismissed. Hence this criminal revision petition before this Court. 4. Mr. Rupinder Singh Thakur, learned Additional Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer, representing the petitioner-State vehemently argued that the judgments passed by the courts below are wrong on facts as well as on law and as such, same deserves to be quashed and set-aside. Mr. Thakur vehemently argued that the impugned judgments are not based upon the correct appreciation of record and the same are based upon hypothetical reasoning, surmises and conjectures and as such, the same cannot be allowed to be sustained. Mr. Thakur with a view to substantiate the aforesaid plea, made this court to travel through the evidence adduced on record by the prosecution to demonstrate that courts below have not dealt with evidence in its right perspective, rather, set unrealistic standards to evaluate direct and cogent evidence. He contended that the learned Sessions Court has fallen in grave error while dismissing the appeal of the petitioner-State on the ground that original complaint has not been brought on file and its photocopy Ext.PW1/A is not admissible as the same has not been proved with the help of the original. Similarly, Mr. Thakur, stated that finding of courts below is illegal and wrong. FIR Ext.PW4/A was duly proved by PW4 Mehar Chand, the then SHO of P.S. Sujanpur, which was not rebutted at all by the defence. As per Mr. Thakur, PW3 Gian Singh, who was on checking very categorically and specifically, stated that he was attacked by the accused and obstructed while discharging his duties as public servant. While concluding his arguments Mr. Thakur, strenuously argued that PWs1 and 3 categorically stated that the accused assaulted them when they were discharging their official duties and as such, the judgments passed by the Courts below deserves to be quashed and set-aside. 5. Since despite repeated pass-overs, none came present on behalf of the respondent to impart instructions; this Court proceeded to decide the matter on the basis of material available on record as well as submissions made on behalf of the petitioner-State. 6. 5. Since despite repeated pass-overs, none came present on behalf of the respondent to impart instructions; this Court proceeded to decide the matter on the basis of material available on record as well as submissions made on behalf of the petitioner-State. 6. Before proceedings ahead to decide the matter on merits, this Court had an occasion to peruse the entire evidence available on record and this Court is of the view that courts below have dealt with each and every aspect of the matter meticulously and by no stretch of imagination, it can be said that impugned judgments are not based upon correct appreciation of evidence available on record. Though, Mr. Thakur, made a serious attempt to demonstrate that judgments are not based upon proper appreciation of evidence, rather same are based upon conjectures and surmises but Mr. Thakur, was unable to point out any material discrepancy, irregularity and illegality in particular to substantiate his argument and as such, this Court sees no reason to interfere with well reasoned judgments of the courts below while exercising its revisionary jurisdiction. 7. Reliance is placed upon the judgment passed by Hon’ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 SCC 452 , wherein it has been held as under:- “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 8. I have heard the learned Additional Advocate General appearing for the petitioner-State and gone carefully through the record. 9. I have heard the learned Additional Advocate General appearing for the petitioner-State and gone carefully through the record. 9. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to reappreciate the evidence available on record. But in the present case, where accused has been acquitted of charges leveled against him under Sections 353 and 332 of the Indian Penal Code, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and same are based upon correct appreciation of evidence available on record, undertook an exercise to critically examine the evidence available on record to reach fair and just decision in the case. 10. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Vs. Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is 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 judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced herein below:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, 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 judicial process or illegality of sentence or order.” 11. In the present case prosecution with a view to prove its case, examined as many as eight witnesses. Learned trial Court also recorded the statement of the accused under Section 313 CrPC, wherein he denied all the allegations leveled against him but fact remains that he did not lead any evidence in his defence. 12. PW1 Ved Parkash, Mining Guard, stated that on 20th November, 1998, he along with PW3 Gian Singh, Mining Inspector had gone for inspection in the area. When they reached at the work site of Saligram, Contractor at about 11 AM, his Munshi/Clerk Shiv Prasad was present on the site and was filling in M-Form book. They took in possession the book. He further stated that when they reached at a place called Pukhar at about 11:30AM, the accused came and assaulted them, as a result of which, they sustained injuries. Accordingly PW3 Gian Singh filed an application Ext.PW1/A to the concerned officer and both the injured were medically examined. 13. In his cross-examination, PW1 admitted that incident took place on the ‘Pucca’ road and there are shops at a distance of about 5-7 minutes’ walk from the site of the incident. He admitted that the wooden stick was 4 feet long and the accused was not an employee of the contractor Saligram. He in his cross-examination also admitted that there was no enmity between them and blood came out from the head of PW3Gian Singh but it did not fall on his clothes. He denied that the accused was collecting ‘Bajri’ in his tractor from the ‘Khad’ and they were beating the accused rather, PW1 stated that he does not know who has written Ext.PW1/A. 14. He denied that the accused was collecting ‘Bajri’ in his tractor from the ‘Khad’ and they were beating the accused rather, PW1 stated that he does not know who has written Ext.PW1/A. 14. PW3 Gian Singh stated that when he and PW1 Ved Prakash, while discharging official duty, were returning after collecting the receipt book from the said Munshi/Clerk, the accused came from their back and assaulted them with a ‘danda’. Interestingly, in his cross-examination, PW3 stated that the incident took place for about 10 minutes and admitted that the accused is not an employee of the said Contractor. He also admitted that blood had fallen on his clothes and clothes were smeared with blood. PW3 also admitted that accused was collecting ‘Bajri’ from the ‘Khad’. However, he denied the suggestion that he and PW1 were under intoxication and had a quarrel with Shiv Prasad (Munshi/Clerk of the Contractor). He also denied that they were demanding liquor from the accused. 15. PW2 and PW4 are formal witnesses, who only proved the receipt book Ext.PB vide memo Ext.PW1/B and FIR Ext.PW4/A. 16. PW5 Dr. Chaman Lal, who medically examined PW1 and PW3 found simple as well as grievous injures on their bodies. He also gave opinion vide MLCs Ext.PA and Ext.PW5/A, but fact remains that in his cross-examination, PW5 categorically admitted that injuries can be possibly caused due to fall also. 17. PW6 ASI Om Chand, Investigating Officer stated that he took into custody the receipt book from PW1Ved Parkash along with documents of their postings in the area and prepared the site plan Ext.PW6/A. However, in his cross-examination, he stated that he does not know if the aforesaid employees (PW1 and 3) had a quarrel with Munshi/Clerk of Saligram Contractor. He also admitted that he had enquired about the fact whether PW1 and PW3 were posted at the place of incident and he associated Shiv Dayal with the investigation. He also admitted that the stick could not be recovered during the investigation. PW6 also testified that he does not know whether there was fighting/scuffle between PW1 and PW3 with Shiv Prakash or Saligram. He admitted that during the investigation, it had emerged that Shiv Parkash was issuing the fake book but he did not take any action against him. He deposed that he has not associated any independent witness because there was no such witness present on the spot. 18. He admitted that during the investigation, it had emerged that Shiv Parkash was issuing the fake book but he did not take any action against him. He deposed that he has not associated any independent witness because there was no such witness present on the spot. 18. PW7 Kishori Lal, Assistant Mining Inspector, produced the record regarding appointment and transfer of the officials (PW1 and PW3). He in his cross-examination admitted that when any person moves from his office for inspection purpose, some entry or intimation to the office is given but fact remains that there is no such document available on record suggestive of the fact that there was any entry or intimation qua the making of alleged inspection by the complainants. PW8 Kishan Singh, Mining Officer, testified about the complaint Ext.PW8/A sent by him. 19. Conjoint reading of the aforesaid witnesses clearly suggests that there are lot of contradictions, omissions, improvements and inconsistencies and prosecution has miserably failed to prove the case beyond reasonable doubt by leading clear, cogent and convincing evidence. Moreover, in the present case, ‘danda’ with which alleged injuries were caused, was not recovered and shown to the doctor, who conducted medical examination of the injured and rendered MLCs. No doubt, PW5 Dr. Chaman Lal in his MLC has stated that PW1 and 3 have suffered simple and grievous injuries but in the present facts and circumstances of the case, where prosecution has miserably failed to prove the incident, medical evidence, if any, cannot be of any help to them. Careful perusal of statements of PW1 and PW3, who can be termed to be the eye witnesses to the incident itself suggests that they did not disclose true facts before the learned trial Court while making statements because bare perusal of the statements of these witnesses suggests that there are major contradictions qua the place as well as weapon allegedly used by the accused causing them injuries. Apart from above, both the material witnesses have contradicted while stating that after the incident, clothes of PW3 were smeared with blood. PW1 though stated that blood started oozing out from the head of PW3 but he nowhere stated that clothes of PW3 were smeared with the blood, whereas PW3 himself stated that his clothes were smeared with blood after the incident. PW1 though stated that blood started oozing out from the head of PW3 but he nowhere stated that clothes of PW3 were smeared with the blood, whereas PW3 himself stated that his clothes were smeared with blood after the incident. Apart from this, there is no document available on record suggestive of the fact that police at any point of time took in possession the clothes, if any, smeared with blood. Though by way of placing the complaint Ext.PW1/A, prosecution attempted to prove that immediately after the incident, matter was reported to the concerned officer but record reveals that only photostat copy of the complaint was placed on record, which could be proved on record with the original but fact remains that no original complaint was ever placed on record and as such, this Court sees no illegality and infirmity in the finding returned by the courts below that photostat copy being admissible, cannot be made the basis of punishment to the accused. Interestingly, in the present case, both the material witnesses themselves admitted in their cross-examination that they had no enmity, if any, with the accused and he had no motive whatsoever, to assault them. Apart from this, PWs 1 and 4 themselves admitted that accused was neither Munshi nor Clerk of Contractor of Saligram and as such, it is not understood that in what capacity, accused was present at the site of occurrence. PW1 and 3 have nowhere stated that aforesaid accused ever resisted to their demand of supplying them M-form book, rather, both the witnesses stated that when they asked for M-form book, the same was supplied to them and as such, it is not understood that why after half an hour, the accused, who had no connection with the contractor, would assault the complainant. 20. Though, there are a number of discrepancies noticed by this court while perusing the entire evidence on record but it appears that evidence discussed herein above is sufficient to hold that in given facts and circumstances, two views are possible in the present case and as such present respondent-accused is entitled to the benefit of doubt. In the present case, prosecution story does not appear to be plausible/ trustworthy and as such same cannot be relied upon. In the present case, prosecution story does not appear to be plausible/ trustworthy and as such same cannot be relied upon. In this regard, I may refer to the judgment passed by the Hon’ble Apex Court reported in State of UP versus Ghambhir Singh, AIR 2005 (92) SCC 2440, where Hon’ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:- “6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, he evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour o the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.” 21. The Hon’ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj versus State of H.P., latest HLJ 2008 (HP) 1150 has also concluded here-in-below:- “25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue. 26. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue. 26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed. 27. Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature.” 22. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court as well as the High Court, this court sees no illegality and infirmity in the judgments passed by the courts below, which appears to be based upon the correct appreciation of evidence available on record. Hence, the instant criminal revision petition is dismissed being devoid of any merit.