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2016 DIGILAW 556 (HP)

Piare Lal v. State of Himachal Pradesh

2016-04-25

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, Judge(Oral) By way of present Criminal Revision filed under Section 397 read with Section 401 of the Code of Criminal Procedure, petitioner has assailed the judgment dated 1st September, 2008 passed by learned Sessions Judge, Hamirpur, H.P in criminal Appeal No.53 of 2008, affirming the judgment passed by learned Chief Judicial Magistrate, Hamirpur, in Criminal case No.49-I of 2007/66-II of 2007, dated 1st July, 2008, whereby petitioner (hereinafter referred to as the accused) was held guilty for the commission of offences punishable under Sections 451, 323 and 506 of Indian Penal Code. However, the petitioner was acquitted for the commission of offence punishable under Section 341 of Indian Penal Code. Subsequently, vide separate order passed on 1.7.2008, learned Chief Judicial Magistrate, Hamirpur, H.P rejecting the prayer for taking a lenient view sentenced the accused as below:- The convict is sentenced to undergo Simple imprisonment for a period of one year and to pay a fine of Rs. 3000/- and in default to undergo simple imprisonment for a period of three months for the commission of offence punishable under Section 451 of IPC. The convict is further sentenced to undergo S.I. for a period of six months and to pay a fine of Rs.1000/- and in default to undergo SI for a period of one month for the commission of offence punishable under Section 323 of IPC. The convict is further sentenced to undergo SI for a period of six months and to pay a fine of Rs.1000/- and in case of default to undergo SI for a period of one month for the commission of offence punishable under Section 506 of IPC. All the substantive sentences of imprisonment shall run concurrently. 2. Briefly stated facts of the case are that the Sanjeev Kumar, PW-1(hereinafter referred to as the complainant) went to the Police Station, Hamirpur on 10.11.2006, at about 11:30 AM and lodged the FIR Ex.PW1/A that at about 10:30 AM, he was present in his office when accused came there and asked for air pump from him. However, that request of the accused was refused by the complainant and the accused forcibly picked up the air pump. However, that request of the accused was refused by the complainant and the accused forcibly picked up the air pump. When the complainant asked him not to do so, the accused went to the adjacent shop of Bishan Dass (PW- 3),who was a Tyre Puncture Repairer, and brought a tyre lever (iron rod) out of the shop and gave a blow with the same on the head of the complainant causing bleeding injury to the complainant. The petitioner-accused while leaving the place threatened the complainant that in case he reported the matter to the police, he will face dire consequences. 3. After lodging of the FIR, the police went to the spot and prepared the site plan Ex.PW7/A, and made recovery of iron rod Ex.P-1 from the complainant vide memo Ex.PW1/B, and sealed the same in a cloth parcel with seal ?P?. The complainant also produced his blood stained shirt Ex.P2, which was also taken into possession by the police vide recovery memo Ex.PW1/C in the presence of the witnesses and it was also sealed with the same seal. Thereafter, the police took the complainant to Dr. D.V. Kulkarni (PW-5), who medically examined the complainant and gave opinion MLC Ex.PW5/A. Thereafter, the accused-petitioner was arrested and after completion of the investigation of the matter, the challan was prepared against the petitioner-accused under Sections 451, 323, 341 and 506 of Indian Penal Code. Subsequently, on 28th March, 2007, challan was presented in the Court of learned Chief Judicial Magistrate, Hamirpur, H.P. 4. The learned Chief Judicial Magistrate, Hamirpur taking cognizance of the matter, summoned the accused-petitioner and supplied him copies of challan, as required under Section 207 Cr.P.C on 8th May, 2007. 5. The learned Chief Judicial Magistrate having satisfied himself with regard to the material available on record framed the charges against the accused-petitioner for having committed offences punishable under Sections 451, 323, 341 and 506 of Indian Penal Code on 7th June, 2007, to which accused-petitioner pleaded not guilty and claimed trial. 6. In order to establish its case, in all, prosecution examined as many as eight witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he denied all the allegations and stated that the complainant slipped and fell down. 6. In order to establish its case, in all, prosecution examined as many as eight witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he denied all the allegations and stated that the complainant slipped and fell down. He further stated that since he had dispute with the complainant, he has been falsely implicated in the present case. The accused- petitioner, however, did not lead any evidence in his defence. 7. The Court of learned Chief Judicial Magistrate, after hearing the learned counsel for the parties as well as perusing the statements of the prosecution witnesses, convicted and sentenced the accused-petitioner vide impugned judgment dated 1.7.2008, detail whereof, has been given hereinabove. 8. The petitioner-accused feeling aggrieved with the impugned judgment dated 1.7.2008, passed by learned Chief Judicial Magistrate filed Criminal Appeal under Section 374 of the Code of Criminal Procedure in the Court of learned Sessions Judge, Hamirpur, H.P, which was also dismissed. 9. In the aforesaid background, petitioner-accused filed the present Criminal Revision Petition under Section 397 read with Section 401 of the Code of Criminal Procedure, assailing the judgment dated 1.9.2008, passed by learned Sessions Judge, Hamirpur, H.P. affirming the judgment passed by learned trial Court in Criminal case No. 49-1 of 2007/66-II of 2007, dated 1.7.2008 on various grounds. 10. Mr. Vinod Thakur, learned counsel appearing on behalf of the petitioner stated that the impugned judgment passed by both the Courts below is based on conjectures and surmises, as such, the same deserves to be quashed and set-aside. He also submitted that both the Courts below have failed to appreciate that the prosecution has miserably failed to prove its case beyond reasonable doubt. He also stated that perusal of the statements made by the prosecution witnesses suggest that there are material contradictions and the same could not be relied upon while convicting the accused. He categorically invited attention of the Court to statement of PW-5, Dr. D.V.Kulkarni, who had stated that injury in question is also possible by a fall. Mr. Vinod Thakur, learned counsel, while arguing stated that learned Court below has fallen in grave error while misreading the statement of PW-3, Bishan Dass because perusal of the site plan Ex.PW7/A would clearly demonstrate that the place of occurrence was not visible from the shop of Bishan Dass. 11. On the other hand, Mr. Mr. Vinod Thakur, learned counsel, while arguing stated that learned Court below has fallen in grave error while misreading the statement of PW-3, Bishan Dass because perusal of the site plan Ex.PW7/A would clearly demonstrate that the place of occurrence was not visible from the shop of Bishan Dass. 11. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General duly assisted by Mr. Pankaj Negi, learned Deputy Advocate General, has supported the judgment passed by learned trial Court below and stated that interference of this Court is not warranted in the present case as judgments passed by both the Courts below are based on the evidence on record. 12. Mr. Rupinder Singh Thakur, learned Additional Advocate General vehemently argued that this Court has very limited powers in revision petition as far as re-appreciation of the evidence is concerned. Mr. Rupinder Singh Thakur, Additional Advocate General strenuously argued that if the statement of the prosecution witnesses are read in its entirety, it clearly suggests that the petitioner-accused had given a blow of iron rod on the head of the complainant and caused injuries to the complainant and as such he has been rightly convicted by the learned Courts below. True it is that while exercising revisional jurisdiction, Court has limited power to re-appreciate the evidence in the instant case. But since in the present case petitioner accused has been convicted, it would be apt and in the interest of justice to critically examine the prosecution witnesses once again with a view to reach fair and just decision. 13. In the present case, Sanjeev Kumar (PW-1) was the complainant. He stated in his statement that around 10.30 AM he was in his office when accused-petitioner came there and asked for air pump, which request of the petitioner was refused by him. As per statement of PW- 1, petitioner-accused forcibly picked up the air pump but when he was stopped by the complainant to do so then , the petitioner-accused went to the adjoining shop of Bishan Dass and brought out a tyre lever(iron rod) Ex.-1 and gave blow with the same on the head of the complainant which resulted into injuries to him. He has categorically stated that immediately thereafter he went to the police Station, Hamirpur, H.P and lodged the FIR Ex.PW1/A. Later on, when police came on the spot and he produced iron rod Ex.P-1 and blood stained shirt Ex.P2 to the police, which were taken into possession by the police vide recovery memo Ex.PW1/B and Ex.PW1/C respectively. Sanjeev Kumar, PW-1, in his cross-examination almost reiterated what he had said in his examination-in chief. He categorically stated that there are two shops including tyre puncture shop and accused-petitioner is the owner of the shop in which Swaraj Majda agency is/was being run. He also stated that accused-petitioner has a service station therein. In his cross-examination, he also stated that he had snatched the tyre lever from the petitioner accused from the spot but denied that he had produced at the police Station. 14. PW-2, Anil Kumar Sharma was a formal witness to the recovery memos Ex.PW1/B and Ex.PW1/C. 15. PW-3, Bishan Dass was the material witness, who has supported the case of the prosecution. He categorically stated that petitioner-accused picked up an iron rod from his shop and gave a blow with the same on the head of the complainant. He also identified the rod Ex.P-1. But admittedly he stated that he had not heard any verbal wrangle earlier between the parties. In his cross-examination, he stuck to the statement given by him in his examination-in-chief. He specifically denied that the complainant Sanjeev Kumar slipped and sustained the injury. 16. PW-4, Joginder Singh, however, has not supported the case of the prosecution but in his statement he has stated that he heard Sanjeev Kumar(PW-1) abusing. In cross-examination by the learned APP, he admitted the date of incident, which suggests that he was also aware of the incident but for some reason he did not support the case of the prosecution. One important point which emerged in his cross-examination is that in those days, he was working with the accused- petitioner. In his cross-examination, he also admitted that Piare Lal had filed a complaint against the complainant about uprooting of water pipes etc and that there were verbal wrangles between the two on this count. 17. PW-5, Dr. D.V. Kulkarni, who had actually examined the complainant vide MLC Ex.PW5/A and opined that simple injury has been caused on the person of the complaint. 17. PW-5, Dr. D.V. Kulkarni, who had actually examined the complainant vide MLC Ex.PW5/A and opined that simple injury has been caused on the person of the complaint. Ex.PW5/A describes the injury on his person:- ?Split laceration 4x 0.5 cm involving whole thickness scalp in left parital region. Bleeding present?. 18. PW-6, MC Sunil Kumar, has proved the application Ex.PW6/A, which was given by the police for the medical examination of the complainant. 19. Sunil Dutt, PW-7 is the Investigating Officer has stated that after registration of the case, he went to the spot and took into possession the articles Ex.P1 and Ex.P2. He has also prepared the site plan Ex.PW7/A. He also admitted that accused was arrested by him and thereafter the challan was prepared by the SHO Guler Chand. However, in his cross-examination, he stated that he went to the spot on the next day at about 9:00/10:00 AM as he could not visit the spot on the day of incident due shortage of time. 20. From the perusal of the statements of all the prosecution witnesses, it remained undisputed that present petitioner-accused gave a blow on the head of the complainant, which resulted in injury which stands fully proved with Ex.PW5/A i.e. opinion of the Doctor. Version put forth by the complainant PW-1 has been duly supported by PW-3, Bishan Dass, from whom's shop the accused-petitioner brought the iron rod and gave a blow of the same on the head of the accused. PW-3, Bishan Dass unequivocally stated that he saw petitioner-accused giving blow on the head of the complainant with an iron rod. PW-5, Dr. D.V.Kulkarni also stated that he had examined Sanjeev Kumar( complainant) on the same day and opined that the injury in question could be caused with an iron rod Ex.P1. 21. The accused-petitioner while making his statement under Section 313 Cr.P.C though denied the prosecution case in its entirety but admitted that the complainant Sanjeev Kumar is working in the agency of Swaraj Majda. He categorically stated that the complainant slipped and fell down and no incident as has been alleged by the complainant took place on that day. This statement of accused itself suggests that actually he was present when this incident occurred. He categorically stated that the complainant slipped and fell down and no incident as has been alleged by the complainant took place on that day. This statement of accused itself suggests that actually he was present when this incident occurred. Though, in his statement he said that he has been falsely implicated due to enmity but there is no evidence to suggest that there is any enmity/animosity and complainant had any occasion to falsely implicate him. PW-4, Joginder Singh, in his statement stated that he heard the complainant hurling abusing and also admitted in his cross-examination by learned APP that accused had gone to the shop of the complainant for demanding machine for pumping air but however he contradicted from his earlier statement. Only eye witness who saw the incident is PW-3, Bishan Dass, who has been very candid in stating that the petitioner- accused came to his shop and picked up an iron rod from there and gave blow to the complainant Sanjeev Kumar. But in the cross-examination, no suggestions were put to PW-3 with a view to extract anything otherwise because no suggestion to this effect that he is falsely deposing against the accused was made to him. Nothing was suggested to this witness to extract that he is making incorrect statement with a view to falsely implicate the accused. Moreover, there is no evidence on record which can suggest that the complainant lodged false complaint against the accused petitioner, because even in the cross-examination complainant reiterated what he stated in his examination-in- chief and he negated the suggestions put to him in this regard by the defence counsel. 22. Petitioner-accused though in his statement recorded under Section 313 Cr.P.C stated that he has been falsely implicated in the present case due to enmity but no record suggesting the same was placed on record. PW-4, Joginder Singh in his statement stated that earlier they had a dispute because the complainant had uprooted his water pipes but in this regard PW-1 in his cross-examination stated that it is wrong that accused Piare Lal had ever lodged any complainant with the Panchayat for alleged uprooting of water pipes by him. Admittedly, no record of complaint, if any, in Panchayat was placed on record. 23. Mr. Vinod Thakur, learned counsel while making his arguments invited the attention of this Court to the Statement given by PW-4, Joginder Singh. Admittedly, no record of complaint, if any, in Panchayat was placed on record. 23. Mr. Vinod Thakur, learned counsel while making his arguments invited the attention of this Court to the Statement given by PW-4, Joginder Singh. Admittedly PW-4, Joginder Singh has not supported the prosecution version but it can be safely inferred from his statement that the factum of dispute before occurrence is established because he said that he heard complainant hurling abusing. Mr. Vinod Thakur, learned counsel also argued that the recovery of weapon in this case has not been proved on record. But record reveals that rod Ex.P1 was produced before the police by PW-1 complainant himself in presence of PW-2, Anil Kumar Sharma. To the contrary, nothing could be extracted in this regard by defence in his crossexamination. Mr. Vinod Thakur, learned counsel has not been able to point out any material discrepancy in the prosecution story so as to persuade this Court to reach the conclusion that the story put forth by prosecution is false and not trustworthy. To the contrary, evidence made available on record, if read, in conjunction with documents exhibited, it can be safely concluded that the petitioner-accused had given a blow of an iron rod on the head of the complainant and Immediately after the occurrence, complainant went to police station and lodged the FIR, which was registered on the same day, which fact itself suggests that the complainant was given injury by the accused, which has been further corroborated by the medical evidence on record. 24. Mr. Vinod Thakur, learned counsel strenuously argued that PW-7, Sunil Dutt in his statement has stated that he came on the spot next day. On the other hand, PW-1 and PW-3 in their statements stated that PW-7 came to the spot on the same day. During arguments I read the statement carefully which nowhere suggests that the police had come on the spot on the same day and PW-7 has categorically stated that he could not come on the spot on the same day because of the busy schedule. Even recovery memos Ex.PW1/B and Ex.PW1/C also suggest that those were made on the next day, when police had actually come on the spot. Even recovery memos Ex.PW1/B and Ex.PW1/C also suggest that those were made on the next day, when police had actually come on the spot. After perusal of the material evidence brought on record, I have no hesitation to declare that the judgment passed by Courts below are based on correct appreciation of evidence brought on record by the prosecution. Admittedly, there are minor discrepancies in the statements of prosecution witnesses, which in no manner can be termed as detrimental to the prosecution case, which otherwise appears to be sufficient for proving the guilt of accused beyond reasonable doubt. 25. 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. 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.? 26. 26. Moreover, careful perusal of the order passed by learned first Appellate Court depicts that each and every points raised by the petitioner-accused in the first appeal has been dealt carefully keeping in view law laid down by the Hon'ble Apex court as well as this Court. Consequent upon, aforesaid discussion, this Court is of the view that facts and circumstances of the present case do not warrant interference of the Court and as such the judgment passed by both the Courts below are upheld. Mr. Vinod Thakur, learned counsel representing the petitioner prayed that the petitioner accused being first offender is entitled to the benefit of Section 4 of the Probation and Offenders Act and lenient view may be taken. He also pleaded that since more than 8 years have passed after passing of the judgment dated 1.7.2008 by the learned Chief Judicial Magistrate and during this period he has already suffered mental agony due to the pendency of the appeal. He also submitted that the petitioner has turned more than 50 years and he has a family to support including wife and two children. In view of the aforesaid submissions made by Mr. Vinod Thakur, learned counsel appearing on behalf of the petitioner and 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. Accordingly, Registry is directed to call for the report of the Probation Officer, Hamirpur, District Hamirpur, HP on or before 3rd June, 2016. Registry to list this matter on 3rd June, 2016.