Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 508 (HP)

Balbir Singh v. State of HP

2017-05-12

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Instant criminal revision petition filed under Section 397 read with Section 401 of the Cr.PC, is directed against the judgment dated 12.1.2010, passed by the learned Sessions Judge, Una, HP, reversing the judgment of acquittal recorded by the learned Judicial Magistrate, Ist Class, Court No. II, Una, H.P. in criminal case No. 183-I-1999, whereby the petitioners-accused were acquitted of the charges framed against them under Sections 379 and 34 of the IPC. 2. In nutshell, case of the prosecution is that on 16.4.1998, complainant namely Shri Banta Ram (PW2) went to Badhera Jungle owned by State of Himachal Pradesh for cutting the grass. As per the complainant, he heard sound of cutting of trees and accordingly, came back to village and narrated the entire matter to S/Shri Balbir Singh (PW1) and Amritsaria (PW4), who along with some other villagers went to the jungle and caught the Whether reporters of the Local papers are allowed to see the judgment? petitioners-accused while cutting khair trees on the spot. As per the complainant, seven Khair logs of different sizes were also found lying on the spot. The complainant along with co-villagers after apprehending the accused persons brought them to the village and reported the matter to the police, who after recording the statement of the complainant under Section 154 of the Cr.PC recorded an FIR Ext.PW6/A against them. After the completion of the investigation, police presented the challan before the competent Court of law. 3. The learned trial Court on being satisfied that prima-facie case exists against the accused persons, charged them under Sections 379 and 34 of the IPC, to which, they pleaded not guilty and claimed trial, however fact remains that they did not lead any evidence in their defence. Prosecution with a view to prove its case examined as many as six witnesses. Petitioners-accused in their statements recorded under Section 303 Cr.PC denied the case of the prosecution in toto and claimed themselves to be innocent. The learned trial Court on the basis of material adduced on record, vide judgment dated 1.5.2009, acquitted the accused persons of charges framed against them punishable under Sections 379 and 34 of the IPC. 4. Petitioners-accused in their statements recorded under Section 303 Cr.PC denied the case of the prosecution in toto and claimed themselves to be innocent. The learned trial Court on the basis of material adduced on record, vide judgment dated 1.5.2009, acquitted the accused persons of charges framed against them punishable under Sections 379 and 34 of the IPC. 4. Respondent-State being aggrieved and dissatisfied with the judgment of acquittal dated 1.5.2009 having been passed by the learned trial Court preferred an appeal under Section 378(1)(a) of the Cr.PC in the Court of learned Sessions Judge, Una, H.P. However, fact remains that the learned Sessions Judge, while accepting the appeal having been preferred by the State set-aside the judgment of acquittal passed by the learned trial Court and held the present petitioners-accused guilty of having committed offences under Sections 379 and 34 of the IPC and accordingly, convicted and sentenced them to undergo rigorous imprisonment for one month each and to pay fine of Rs. 1500/- each. In the aforesaid background, the petitioners have preferred revision petition, praying therein for their acquittal after setting aside the judgment of acquittal passed by the learned Sessions Judge. 5. Mr. Amit Jamwal, Advocate, representing the petitioners while inviting attention of this Court to the impugned judgment passed by the learned Sessions Judge, vehemently argued that the same is not sustainable in the eye of law as the same is not based upon correct appreciation of evidence adduced on record and as such deserves to be quashed and setaside. Learned counsel representing the petitioners strenuously argued that the bare perusal of the impugned judgment passed by the learned Sessions Judge suggest that the evidence adduced on record by the prosecution was not read in its right perspective by the court below while holding the petitioner accused guilty of having committed offence under Sections 379 and 34 of the IPC, as a result of which, erroneous findings have come on record to the detriment of the petitioners-accused/who are admittedly innocent persons. With a view to substantiate his aforesaid argument, learned counsel also made this Court to travel through the evidence led on record by the prosecution to suggest that there is no illegality and infirmity in the judgment passed by the learned trial Court, rather learned Sessions Judge has mis-read , mis-appreciated and mis-construed the evidence available on record. Mr. With a view to substantiate his aforesaid argument, learned counsel also made this Court to travel through the evidence led on record by the prosecution to suggest that there is no illegality and infirmity in the judgment passed by the learned trial Court, rather learned Sessions Judge has mis-read , mis-appreciated and mis-construed the evidence available on record. Mr. Jamwal, further contended that learned Sessions Judge erred in law and facts while passing the impugned judgment in as much as no reasoning has been given while discarding the cardinal principle of appreciating the evidence as a whole hence, the impugned judgment passed by the learned Sessions Judge cannot be allowed to sustain. He further stated that none of the witness has stated before the court below that they saw accused carrying axe and saw on the spot, rather all the PWs unequivocally stated that they saw the accused empty handed. He also stated that none of the prosecution witnesses stated that how many khair logs were allegedly got cut by the petitioners and as such, no reliance, if any, could be placed on the story of the prosecution that seven logs of khairwood were recovered from the spot. While reading statements having been made by the pws, Mr. Jamwal, forcefully contended that there are material contradictions in the aforesaid statements having been made by the PWs with regard to the timing as well as cutting of alleged trees by the petitioners accused and as such, learned trial Court rightly acquitted the petitioners-accused of charges framed against them. While concluding his arguments, Mr. Jamwal, also contended that it stands duly proved on record that the demarcation conducted by the Kanungo on the instructions of the police was not carried out strictly in accordance with law and as such, there was no occasion for the learned Sessions Judge, to place reliance upon the same while convicting and sentencing the accused under Sections 379 and 34 of the IPC. In the aforesaid background, Mr. Jamwal, prayed that the petitioners may be acquitted of the charges framed against them after setting aside the judgment of conviction recorded by the learned Sessions judge. 6. In the aforesaid background, Mr. Jamwal, prayed that the petitioners may be acquitted of the charges framed against them after setting aside the judgment of conviction recorded by the learned Sessions judge. 6. Per contra, M.L. Chauhan, learned Additional Advocate General representing the respondent-State while inviting attention of this Court to the judgment passed by the learned Sessions Judge, strenuously argued that there is no illegality and infirmity in the same and as such, same deserves to be upheld. While refuting the aforesaid contentions having been made by the learned counsel representing the petitioner, Mr. Chauhan, invited attention of this Court to the statements having been made by PWs to suggest that there is no material contradiction, which could persuade the court below to disbelieve the version put forth by the prosecution. Mr. Chauhan, further contended that there is ample evidence available on record suggestive of the fact that the petitioners-accused were caught red handed at the spot by the villagers and later on, at their behest, axe and saw were also recovered from the spot. Learned Additional Advocate General prayed that there is no merit in the present appeal and the same deserves to be dismissed. He also invited attention of this Court to the judgment passed by the Hon’ble Apex Court in case titled State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 to state that this Court has very limited jurisdiction to re-appreciate the evidence while exercising power under Section 397 of the Cr.PC. In the aforesaid background, learned counsel for the respondents, prayed for dismissal of the present petition. 7. I have heard the learned counsel for the parties and carefully gone through the record. 8. 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 SCC 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 Hi 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. The relevant para of the judgment is reproduced as under:- “8. 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.” 9. During the proceedings of the case, this Court had an occasion to peruse the impugned judgment passed by the learned Sessions judge as well as judgment of acquittal passed by the learned trial Court. Similarly, this Court was also made to travel through the evidence led on record by the prosecution and after having carefully perused the material as referred herein above, this Court has no hesitation to conclude that learned Sessions Judge while holding the petitioners-accused guilty of having committed offences under Sections 379 and 34 of the IPC has misread, mis-appreciated and misconstrued the evidence. This Court after having carefully perused the statements adduced on record by the prosecution sees considerable force in the argument made by the learned counsel for the petitioners that none of the PWs stated something specific with regard to the carrying of axe and saw by the accused at the time of their being apprehended by the villagers. 10. PW1 complainant Balbir Singh stated before the court below that in December, 1998, PW2 namely Banta Ram informed him about the cutting of khair trees. He further stated that after having received aforesaid information, PW1 along with 20/25 persons went to the jungle and saw the accused cutting khair wood. He further stated that seven logs of khair wood were also lying on the spot. He further stated that after having received aforesaid information, PW1 along with 20/25 persons went to the jungle and saw the accused cutting khair wood. He further stated that seven logs of khair wood were also lying on the spot. It has also come in his statement that they have apprehended them and gave intimation to the police. In his cross examination, it has also come that khair logs stood stolen on 22/23.12.1998, qua which report was lodged with the police. He feigned his ignorance with regard to the action, if any, taken by the police on the aforesaid report. Similarly, he also feigned ignorance with regard to the khasra numbers from where the khair logs were allegedly cut by the petitioners-accused. 11. PW2 Banta Ram stated that about 8-9 years back, when he was cutting the grass in Badhera jungle, he noticed fresh felling of khair trees on the government land accordingly ,he called villagers and narrated the incident to the PW1 Balbir and others, whereupon, 15-20 people went to the spot. It has specifically come in his statement that both the accused were empty handed at that time. Perusal of the record suggests that this witness was declared hostile by the prosecution but in his cross-examination by the prosecution, he admitted that they had all seen the accused while felling khair trees in the drain. He also reiterated in his cross-examination that he had not seen the axe and saw with the accused. He also failed to state as to how many khair logs were cut. He also stated in his cross examination that the accused had not handed over any axe and saw to the police in his presence. 12. PW4 Amritsaria also stated before the court below that about 5 years back, Banta Ram told him that some people were cutting khair trees from the jungle and some other persons surrounded the jungle and caught the accused. It has come in his statement that police took into possession khairwood vide fard Ext.PW1/A. 13. Plain reading of statement of aforesaid prosecution witness (PW2) who had first occasion to see the petitioner accused after noticing illegal felling of tree, nowhere proves the story of the prosecution with regard to the alleged cutting of trees by the petitioners-accused. It has come in his statement that police took into possession khairwood vide fard Ext.PW1/A. 13. Plain reading of statement of aforesaid prosecution witness (PW2) who had first occasion to see the petitioner accused after noticing illegal felling of tree, nowhere proves the story of the prosecution with regard to the alleged cutting of trees by the petitioners-accused. All the PWs have stated that after being told by PW2 (Banta Ram), they had gone to the forest along with villagers but none of the PW has stated that they saw the petitioners-accused cutting the khair trees on the spot. Similarly, all these prosecution witnesses have admitted that the petitioners-accused were not carrying saw and axe at that relevant time. These prosecution witnesses have merely stated that they saw the accused pushing the logs of khairwood downhill, which in my considered view was not sufficient to hold the petitioners-accused guilty of having committed offence punishable under Sections 397 and 34 of the IPC. 14. Apart from the above, none of the aforesaid prosecution witness has stated specifically that police took into possession axe and saw on the spot at the behest of the petitioners-accused. PW2 specifically admitted stated in his cross examination that the accused had not handed over any axe and saw to the police in his presence. 15. PW3 Joginder Lal, Kanungo, stated before the court below that he pursuant to direction of police, went to the spot and conducted the demarcation of the land comprising khasra No. 2293 and gave report Ext.PW3/A. He also stated that three khair trees were found to have been cut from khasra No.2293. In his cross examination, he denied to have not gone to the spot and to have given false report. 16. PW5 Kuldeep Kumar, Patwari Halqa Badhera also stated that on 5.11.1998, he accompanied the Kanungo to the spot and on the spot khair trees, were found to have been cut from khasra No. 1392. In his cross examination, he stated that no pucca bana was fixed in his presence. Even perusal of statement of aforesaid witnesses nowhere proves the case of prosecution that khair trees were cut from the govt. In his cross examination, he stated that no pucca bana was fixed in his presence. Even perusal of statement of aforesaid witnesses nowhere proves the case of prosecution that khair trees were cut from the govt. land, because Joginder Lal, Kanungo in his statement stated that he found that some khair tree cut from the khasra No. 2293, whereas Patwari (PW-5), who accompanied him (PW-3), in his cross examination categorically stated that khair trees were found to have been cut from khasra No. 1392. Similarly, PW5 admitted in his cross examination that no pucca bana was fixed in his presence before carrying out demarcation. Hence, this Court sees substantial force in the arguments of learned counsel for the petitioner that no reliance could be placed on the statement of this official witness, who admittedly contradicted each other qua the khasra number of land from where khair trees were allegedly cut. PW-5 also stated that no pucca point was fixed before carrying out demarcation. Hence, it cannot be concluded that that prosecution successfully proved on record that the trees were cut from the Govt. land. 17. Consequently, after having carefully perused the material adduced on record, this Court has no hesitation to conclude that the judgment passed by the learned Sessions Judge, is not based upon the proper and correct appreciation of evidence available on record, and as such, the same deserves to be quashed and set-aside. Accordingly, the petition is allowed and the petitioners are acquitted of the charges framed against them under Sections 397 and 34 of the IPC. Interim order dated 9.2.2010 is vacated. Bail bonds, if any, are discharged. Pending applications, if any also stand disposed of.