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2017 DIGILAW 1204 (HP)

Parvinder Kumar v. State Of Himachal Pradesh

2017-10-30

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. - The present petition is maintained by the petitioner/accused/convict (hereinafter referred to as "the accused") challenging the judgment dated 30.03.2009, passed by learned Additional Sessions Judge, Fast Track Court, Kullu, District Kullu, H.P., in Criminal Appeal No. 17 of 2007, whereby the judgment, dated 11.07.2007, passed by learned Judicial Magistrate 1st Class, Manali, District Kullu, H.P., in Criminal Case No. 242-1/2006/31-II/2006, was upheld and the conviction of the accused was affirmed. 2. Brief facts giving rise to the present revision can tersely be summarized as under: On 09.01.2006, complainant, Shri Sanjeev Kumar (hereinafter referred to as "the complainant"), Driver in Himachal Road Transport Corporation and was deployed as such in bus bearing No. HP-20-9001 en route Manali to Amritsar. When, at 03:10 p.m., the complainant reached at Patlikuhal, the accused, being driver of bus, having registration No. HP34-4725, drew the complainant out of the Window of the bus and thrashed him. The clothes worn by the complainant were also torn by the accused. The complainant was rescued by Shri Haqiqat Ram, Conductor, Shri Surajmani, and Shri Hari Singh, Inspectors, H.R.T.C., who were sitting in the bus. The accused obstructed the complainant, a public servant, in discharge of his duties as such. The statement of the complainant was recorded under Section 154 Cr.P.C., 1973 and a case was registered against the accused. The police investigated the matter, took into possession clothes, i.e., shirt and sweater of the complainant. Spot map was prepared and the complainant was got medically examined. Appointment order and duty register of the complainant were also obtained. After completion of investigation, challan was presented in the Court. 3. The learned Trial Court vide its judgment and order dated 11.07.2007 and 12.07.2007, respectively, convicted the accused and sentenced him to undergo simple imprisonment for a period of one year and to pay fine of Rs. 1,500/- (rupee one thousand five hundred) and in default of payment of fine to undergo simple imprisonment for a period of three months under Section 353 IPC. The accused was also sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months under Section 332 IPC. It was also ordered that out of fine amount, Rs. The accused was also sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months under Section 332 IPC. It was also ordered that out of fine amount, Rs. 2,000/- (rupees two thousand) shall be paid, as compensation to the complainant. The accused (petitioner herein) preferred an appeal in the learned Appellate Court against the judgment and order of the learned Trial Court, but unsuccessfully. The learned Appellate Court vide impugned judgment dated 30.03.2009 upheld the judgment of the learned Trial Court and reduced the sentence of the accused. The learned Appellate Court sentenced the accused for simple imprisonment for one year under Section 353 IPC and under Section 332 IPC he was sentenced to undergo simple imprisonment for six months. 4. The accused/petitioner feeling aggrieved and dissatisfied with the impugned judgment of the learned Appellate Court preferred the present revision petition. 5. Heard. The learned counsel for the petitioner has argued that the judgments of both the Courts below are contrary to the facts of the case. The learned courts below have erred in appreciating the evidence. He has further argued that the evidence does not conclusively establish that the petitioner was driving the bus at that relevant time. The petitioner had been convicted by the learned Courts below by placing reliance on the testimonies of interested witnesses. He has further argued that there are material contradictions in the statements of the prosecution witnesses, thus the prosecution could not prove the guilt of the petitioner beyond the shadow of reasonable doubt. Lastly, he has argued that the present revision petition may be allowed by setting aside the judgments of the learned Courts below and the petitioner may be acquitted. Conversely, the learned Deputy Advocate General has argued that the learned courts below have appreciated the evidence in its right perspective and the evidence leads to only one conclusion that the petitioner committed the offence, as alleged, so the judgments of the learned courts below are not the result of proper appreciation of evidence, which has come on record. He has further argued that the revision may be dismissed. 6. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 7. He has further argued that the revision may be dismissed. 6. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 7. The prosecution in order to prove its case examined seven witnesses. PW-1, Shri Sunil, Medical Officer, CHC, Naggar, medically examined the complainant. He found simple injuries on the person of the complainant. He issued MCL, Ex. PW-1/A, qua the medical examination of the complainant and he has specifically opined that injuries sustained by the complainant can be sustained with fist blows. The statements of PW-2, HC Gangbir, and PW-4 Shri Sanjay Kumar, are not so material, as they have not stated anything incriminating against the accused, therefore, the statements of these witnesses are not of much help to the prosecution. PW-3, Shri Chandu Lal, Inspector, Bus Stand Incharge, Una, proved that the complainant was deployed in bus bearing No. HP-20-9001, which was to ply from Amritsar, Kullu and Manali. As per copy of appointment letter, dated 27.07.1998, Ex. PW-3/A, the complainant was employed as Driver in Himachal Road Transport Corporation. 8. In the case in hand, the statement of the complainant (PW-5) is very vital and, in fact, he has fully supported the prosecution case. As per the complainant, on 09.01.2006 he was driving bus having registration No. HP-20-9001 from Manali to Amritsar. He has further deposed that when he reached Patlikuhal, accused, who was driving bus, having registration No. HP-34-4725, pulled him out of the bus and thrashed him with fist blows. The accused broke his spectacle and also torn his clothes. As per the complainant, at that relevant time, HRTC Inspectors were also in the bus, who, with the assistance of the Conductor, rescued him from the accused. The accused caused obstruction in discharging his official duty. He reported the matter at Police Post, Patlikuhal, whereupon report, Ex. PW-5/A, and his statement under Section 154 Cr.P.C., 1973 Ex. PW-5/B, were recorded. His torn clothes were also taken into possession. 9. PW-6, Shri Surajmani, Inspector, Himachal Road Transport Corporation, deposed that on 09.01.2006 he has boarded bus bearing registration No. HP-20-9001, which was en route from Manali to Amritsar and the complainant (PW-5) was driving the bus. As per this witness, Shri Haqiqat Ram was Conductor of the bus. PW-5/B, were recorded. His torn clothes were also taken into possession. 9. PW-6, Shri Surajmani, Inspector, Himachal Road Transport Corporation, deposed that on 09.01.2006 he has boarded bus bearing registration No. HP-20-9001, which was en route from Manali to Amritsar and the complainant (PW-5) was driving the bus. As per this witness, Shri Haqiqat Ram was Conductor of the bus. Around 04:30 p.m., when the bus reached at Patlikuhal, the accused, who was driving private bus, came and caught hold of the complainant. The accused pulled the complainant from the window of the bus and he torn the sweater and shirt of the complainant. He has further deposed that spectacle of the complainant fell on the ground. He rescued the complainant from the accused and due to the beatings given by the accused to the complainant the bus remained stranded and obstruction was caused in the discharge of the official duty of the complainant. PW-7 S.I. Lal Singh, Incharge, Police Post, Patlikuhal, I.O. produced the copy FIR, Ex. PW-7/A, which was registered by ASI Surender Pal. As per this witness, complainant produced his torn shirt, Ex. P-1, and sweater, Ex. P-2, and the same were taken into possession, vide seizure memo, Ex. PW-4/A. He also prepared the spot map, Ex. PW-7/C, and got the complainant medically examined. The Medico Legal Certificate of the complainant is Ex. PW-1/A. This witness, in his cross-examination, has admitted that on the spot of occurrence there are many shops, but he did not record the statements of passengers travelling in the bus, as no one willing to get recorded his statement. 10. In the case in hand, the star witness is PW-5, Shri Sanjeev Kumar (complainant), who was driving the bus at the relevant time and against him the alleged offence stated to have been committed. He deposed that on 09.01.2006, he, being driver of HRTC bus, having registration No. HP-20-9001, driving the bus from Manali to Amritsar. He has further deposed that when he reached Patlikuhal, the accused, being driver of bus No. HP-34-4725, pulled him out from the widow of the bus and gave beatings to him. As per this witness, Inspectors of HRTC were also inside the bus when the alleged incident took place. HRTC Inspectors with the assistance of the Conductor rescued him from the accused. As per this witness, Inspectors of HRTC were also inside the bus when the alleged incident took place. HRTC Inspectors with the assistance of the Conductor rescued him from the accused. The accused caused obstruction in discharge of his duty and bus got delayed by five hours. He reported the matter to the police and report, Ex. PW-5/A, was registered and his statement under Section 154 Cr.P.C., 1973 Ex. PW-5/B, was recorded. This witness has also produced his torn clothes, which were taken into possession by the police. 11. The statement of PW-5, Shri Sanjeev Kumar (complainant) is also to the effect that he has changed the route of the bus and the bus of the accused came from behind and altercation took place between him and the accused. In these circumstances, the statement of PW-5 was required to be considered cautiously as he was interested to get the accused convicted for the reason that some altercation has taken place. It has come in the statement of PW-6, Shri Surajmani, that the spectacles of PW-5, Shri Sanjeev Kumar, were also broken, but those spectacles were neither produced nor taken into possession by the police, thus, there is improvement in the prosecution story and it was concocted. 12. Secondly, PW-5, Shri Sanjeev Kumar, has stated that due to the beatings given to him by the accused the bus was parked at Patlikhul. From the statements of PW-5 and PW-6 it is not evident that the accused has stopped the complainant from discharging his official duty. The only allegation which has come against the accused is that due to the dragging of the complainant by the accused from the bus his sweater and shirt were torn and his spectacles were also broken and he has gone to the police Station. Due to the occurrence, the bus could not ply further for five hours. The torn sweater and shirt of the complainant were, though produced in the Court, but non-production of his spectacles creates a serious doubt in the prosecutions story. The prosecution did not associate any independent witness, especially when the independent witnesses were easily available, as many passengers were travelling in the bus. Likewise, the place where the incident took place is also crowded one and independent witnesses could also have been associated therefrom. 13. The prosecution did not associate any independent witness, especially when the independent witnesses were easily available, as many passengers were travelling in the bus. Likewise, the place where the incident took place is also crowded one and independent witnesses could also have been associated therefrom. 13. PW-6, Shri Surajmani, employee of HRTC, and PW-5, Shri Sanjeev Kumar (complainant) are interested witnesses and in the absence of any independent witnesses, especially when they were easily available in abundance, as, as per the prosecution story, the incident was witnessed by the passengers and many persons gathered on the road, including the passengers of the bus of the accused and it was the day time, non-joining of the independent witnesses creates a serious doubt in the prosecution story. It has also come on record that there were 15-20 passengers in the bus and none of them has been cited as a witness. PW-7, S.I. Lal Singh, In-charge Police Post, Patlikuhal, did not state anything as to why he has not recorded the statements of these witnesses when they were available. The truth would have come only if some independent witnesses would have been associated in by the police. The statement of PW-6, Shri Surajmani, Inspector, HRTC, is to be scrutinized cautiously, as he is also employee of HRTC. In the above enumerated circumstances, the prosecution story becomes doubtful. 14. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt, therefore, the judgments of conviction, as passed by the learned Trial Court and upheld by the learned Lower Appellate Court, are set aside. Resultantly, the revision is allowed and accordingly disposed of with all pending applications, if any.