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Himachal Pradesh High Court · body

2016 DIGILAW 2161 (HP)

Nand Kishore v. State of Himachal Pradesh

2016-10-04

SANDEEP SHARMA

body2016
JUDGMENT : SANDEEP SHARMA, J. 1. Instant Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment dated 7.7.2011, passed by learned Additional Sessions Judge, Mandi, (camp at Karsog) District Mandi, H.P. in Criminal Appeal No.37 of 2010, affirming the judgment dated 16.4.2010, passed by learned Judicial Magistrate Ist Class, Karsog, District Mandi, H.P. in Police Challan No. 158-1 of 2007, whereby the petitioner (in short ?accused') was convicted under Sections 279 and 337 of IPC and sentenced as under:- 279 IPC S.I. for one month and to pay fine of Rs.500. In default of payment of fine to undergo S.I. for 15 days. 337 IPC S.I. for one month and to pay fine of Rs.500. In default of payment of fine to undergo S.I. for 15 days. 2. Briefly stated facts, as emerged from the record are that complainant Dhani Ram (PW-1) alongwith his brother Bar Chand (PW-3) on 9.4.2007 at about 7:30 PM, was on his way to Mamel Bazar, for purchasing vegetable etc. At the relevant time, accused came on his scooter bearing registration No. HP-24-2453 in a high speed and hit brother of the complainant namely Sh. Bar Chand (PW-3), as a result of which, he fell down on the road and sustained injuries. Thereafter, injured person was taken to hospital by the accused on the same scooter. The accident had taken place due to rash and negligent driving of the accused. Complainant, Dhani Ram (PW-1) reported the matter to the police and accordingly statement of the complainant under Section 154 Cr.P.C was recorded, on the basis of which, FIR Ex.PW8/C was registered at police Station, Karsog. After registration of the FIR, Investigating officer (PW-8), prepared the spot map Ex.PW8/A and recorded the statements of the witnesses under Section 161 Cr.P.C as per their version. During the investigation, investigating officer procured the MLC Ex.PW7/A of the injured. The photographs of the spot Ex.PW8/D to Ex.PW8/H, whose negatives are Ex.PW8/J and Ex.PW8/K, were taken. The mechanical examination of the scooter was also got conducted by Keshav Ram (PW-4), who vide his report Ex.PW4/A, stated that there was no mechanical defect in the vehicle in question. During the investigation, investigating officer procured the MLC Ex.PW7/A of the injured. The photographs of the spot Ex.PW8/D to Ex.PW8/H, whose negatives are Ex.PW8/J and Ex.PW8/K, were taken. The mechanical examination of the scooter was also got conducted by Keshav Ram (PW-4), who vide his report Ex.PW4/A, stated that there was no mechanical defect in the vehicle in question. Police after completion of the investigation came to the conclusion that the petitioner-accused is guilty of having committed the offence punishable under Sections 279, 337 of I.P.C and 181 of the Motor Vehicles Act, and accordingly presented the challan in the competent Court of law. 3. Learned trial Court after satisfying itself that a prima-facie case exists against the accused, framed notice of accusation under Sections 279, 337 of IPC and 181 of the Motor Vehicles Act against the accused, to which accused pleaded not guilty and claimed trial. 4. In the present case, prosecution with a view to prove its case beyond reasonable doubt examined as many as 8 witnesses. The statement of accused under Section 313 Cr.P.C was also recorded, wherein he denied the prosecution case in its entirety. However, he did not lead any evidence in his defence. 5. Thereafter, learned trial Court on the basis of the evidence made available on record by the prosecution, found accused guilty of having committed the offence punishable under Sections 279, 337 of IPC and accordingly convicted and sentenced the accused, as per the description given hereinabove. 6. Feeling aggrieved and dissatisfied with the impugned judgment dated 16.4.2010, passed by learned trial Court, present petitioner-accused filed an appeal under Section 374 (3) of the Code of Criminal Procedure before the learned Additional Sessions Judge Mandi (camp at Karsog), which was also dismissed vide judgment dated 7.7.2010 Hence, the present criminal revision petition, praying therein for quashing and setting-aside the impugned judgment of conviction, passed by learned trial Court and further upheld by learned Additional Sessions Judge, Mandi (camp at Karsog). 7. Mr. Inder Sharma, learned counsel representing the petitioner, vehemently argued that the impugned judgment passed by both the Courts below are not sustainable as the same are not based upon the correct appreciation of the evidence available on record. 7. Mr. Inder Sharma, learned counsel representing the petitioner, vehemently argued that the impugned judgment passed by both the Courts below are not sustainable as the same are not based upon the correct appreciation of the evidence available on record. He forcibly contended that bare perusal of the judgment passed by both the Courts below suggest that learned Courts below have not appreciated the evidence in its right perspective, rather judgments are based on conjectures and surmises and as such, same cannot be allowed to sustain. 8. With a view to substantiate his aforesaid arguments, Mr. Sharma, made this Court to travel through the depositions made by the prosecution witnesses, to demonstrate that there are major contradictions with regard to time and place of occurrence. Mr. Sharma, also contended that the prosecution was not able to prove the ingredients of Sections 279 & 337 of IPC and as such, no conviction, if any, could be recorded on the basis of material made available on record by the prosecution. Mr. Sharma, while concluding his arguments strenuously argued that Courts below have miserably failed to take note of the fact that complainant Dhani Ram and injured Bar Chand were related to each other and as such, their testimonies could not be relied upon in the absence of some independent witness. He further stated that in the absence of some independent witness, learned Courts below ought to have dealt with the statements of complainant as well as injured Bar Chand with great caution, but in the instant case, learned Courts below while solely relying upon the statements of the complainant and injured Bar Chand, recorded the conviction against the petitioner-accused and as such, great prejudice has been caused to the present petitioner-accused. He also stated that both the Courts below, while rejecting the prayer made on behalf of the petitioner for the grant of benefit of Section 4 of the Probation of Offenders Act, failed to take note of the fact that immediately after the accident injured was taken to the hospital by the petitioner-accused himself. 9. Apart from above, Mr. Sharma, stated that this is a fit case where benefit of Section 4 of the Probation of Offenders Act, can be granted, especially in view of the fact that the petitioner-accused himself took the injured to the hospital after the accident. Mr. 9. Apart from above, Mr. Sharma, stated that this is a fit case where benefit of Section 4 of the Probation of Offenders Act, can be granted, especially in view of the fact that the petitioner-accused himself took the injured to the hospital after the accident. Mr. Sharma, also stated that, in case, after hearing the submissions having been made by him, still this Court comes to conclusion that accused is guilty of the offence punishable under Sections 279 and 337 of IPC, in that eventuality, accused may be given the benefit of probation under Section 4 (b) of the Probation of Offenders Act, 1958, keeping in view the fact that the accused is first offender. Moreover, he is the sole bread earner and has family to support and if at this stage, the petitioner-accused is convicted, his family shall have to face the humiliation in the village/society. He also stated that mitigating circumstances in this case is that more than 9 years have passed after having the incident and more than six years after passing of the judgment dated 16.4.2010, whereby accused was convicted and he has already suffered agony during the pendency of the appeal in the court of learned Additional Sessions Judge as well as before this Court. 10. In support of arguments, Mr. Inder Sharma, also invited the attention of this Court to the judgments of Hon'ble Apex Court titled as Shlok Bhardwaj versus Runika Bhardwaj and others, 2015 (2) SCC 721 and Sanjaysinh Ramrao Chavan versus Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 . 11. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General, duly assisted by Mr. Rajat Chauhan, Law Officer, supported the judgment passed by both the Courts below. Mr. Thakur, vehemently argued that bare perusal of the judgment, passed by both the Courts below, clearly suggests that the same are based upon the correct appreciation of the evidence led on record by the prosecution and as such, no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case. 12. Lastly, Mr. Thakur, reminded this Court of its limited jurisdiction, while exercising powers under Section 397 Cr.P.C. He stated that this Court enjoys very limited powers under Section 397 Cr. 12. Lastly, Mr. Thakur, reminded this Court of its limited jurisdiction, while exercising powers under Section 397 Cr.P.C. He stated that this Court enjoys very limited powers under Section 397 Cr. P.C. to re-appreciate the evidence adduced on record by the prosecution to prove its case, especially when it stands proved on record that both the Courts below have dealt with each and every aspects of the matter very meticulously. In the aforesaid background, Mr. Thakur prayed for the dismissal of the revision petition. 13. I have heard learned counsel representing the parties and have carefully gone through the record made available. 14. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence available on record. But in the present case, where accused has been convicted and sentenced under Sections 279, 337 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 the 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. 15. 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 Versus Krishnaveni and another, (1997) 4 Supreme Court Case241; 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 as under:- ?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. 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.? 16. In the present case, this Court had an occasion to go through the entire evidence led on record by the prosecution as well as statement of the accused recorded under section 313 Cr.P.C and this Court has no hesitation to conclude that there is no error apparent on the face of the judgment passed by both the Courts below, rather same appears to be based upon correct appreciation of the evidence adduced on record by the prosecution. During arguments, learned counsel representing the parties made this Court to travel through the entire evidence, perusal whereof leaves no doubt in the mind of the Court that the prosecution was able to prove its case beyond reasonable doubt and as such, this Court sees no reasons to interfere with well reasoned judgment passed by both the Courts below. Learned counsel representing the petitioner, while arguing in the present criminal revision petition on behalf of the petitioner, nowhere disputed the accident, rather only arguments advanced by him was that no independent witness was associated by the prosecution to prove its case beyond reasonable doubt. This Court, after perusing the statements of the prosecution witnesses, is fully convinced that the statements of complainant Dhani Ram and injured Bar Chand were sufficient to conclude that at the relevant time, scooter was being driven by the accused in rash and negligent manner, as a result of which, injured namely Sh. Bar Chand suffered minor injuries. 17. This Court, after perusing the statements of the prosecution witnesses, is fully convinced that the statements of complainant Dhani Ram and injured Bar Chand were sufficient to conclude that at the relevant time, scooter was being driven by the accused in rash and negligent manner, as a result of which, injured namely Sh. Bar Chand suffered minor injuries. 17. Apart from above, learned counsel representing the petitioner was not able to point out any perversity, if any, in the judgment passed by both the Courts below, which could compel this court to re-examine the entire evidence led on record by the prosecution to prove its case beyond reasonable doubt. Accordingly, judgment passed by both the Courts below deserves to be upheld. 18. However, this Court taking into consideration the fact that after the accident, petitioner-accused had taken the injured to the hospital coupled with the fact that more than six years have already passed after passing of the judgment and during this period petitioner accused already suffered mental agony, deems it fit to consider the case of the petitioner-accused for the grant of probation under Section 4 of the Act. Mr. Sharma, also stated before the Court that petitioner accused being first offender deserve to be granted benefit of Probation of Offenders Act. This Court also found that the petitioner- accused is young person approximately 30 years of age. 19. Consequently, in view of the aforesaid discussion made herein above, this court has no hesitation to conclude that Courts below have rightly appreciated the evidence available on record, hence, the judgments passed by the Courts below are upheld. Accordingly, the present petition is dismissed being devoid of any merit. 20. However, keeping in view the facts and circumstances as well as submissions having been made by the counsel representing the petitioner-accused for grant of the benefit of Section 4 of Probation of Offenders Act, this Court is of the view that this is a fit case where a benefit of Section 4 of Probation of Offenders Act can be extended in favour of accused person, especially, keeping in view the fact that accused is first offenders and have family to support. Perusal of record suggests that alleged incident had occurred in the year 2007 i.e. 9 years back, meaning thereby accused have already suffered agony of long litigation, which remained pending in the Courts and during this period he remained under trauma and apprehension of being punished. Learned counsel representing the petitioner also submitted that accused is young and has a long career ahead and, in case, he is not extended the benefit of Probation of Offenders Act, great prejudice would be caused to him. In support of the aforesaid arguments, learned counsel for the petitioner-accused also invited the attention of this Court to the judgment passed by this Hon'ble Court in Yudhbir Singh versus State of Himachal Pradesh 1998 (1)S.L.J. 58, wherein it has been held as under: ?9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to keep peace and to be of good behavior for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons.? 21. In this regard, reliance is placed upon Hon'ble Apex Court judgment Ramesh Kumar @ Babla versus State of Punjab 2016 AIR (SC) 2858, wherein it has been held as under: ?7. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons.? 21. In this regard, reliance is placed upon Hon'ble Apex Court judgment Ramesh Kumar @ Babla versus State of Punjab 2016 AIR (SC) 2858, wherein it has been held as under: ?7. Accordingly the appeal is allowed in part by converting appellant's conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such circumstances, it is not deemed necessary to send the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life. 8. In view of aforesaid, in our view the ends of justice would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour.? 22. The reliance is also placed upon Hon'ble Apex Court judgment Hari Kishan and State of Haryana versus Sukhbir Singh 1988 AIR (SC) 2127, wherein it has been held as under: ?8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate. 9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to section 357 Criminal Procedure Code Section 357, leaving aside the unnecessary, provides:- ?357. Order to pay compensation: (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is in the opinion of the Court, recoverable by such person in a civil Court; Xxxxxxxxxxxxxx Xxxxxxxxxxx Xxxxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation. Such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. Such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section. 11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default.? 23. In view of the aforesaid law as well as submissions having been made by Mr. Sharma, learned counsel appearing on behalf of the petitioner, after taking into consideration the facts and circumstances of the present case, I am of the considered opinion that the present petitioner-accused can be granted benefit of Section 4 of the Probation of Offenders Act, 1958 subject to payment of adequate compensation, which would be determined after the receipt of the report of Probation Officer. Accordingly, Registry is directed to call for the report of the Probation Officer, Mandi, District Mandi, H.P. on or before 15th November, 2016. Registry to list this matter on 18th November, 2016.