Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 517 (HP)

Ashwani Kumar v. State of Himachal Pradesh

2017-05-15

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. Instant Criminal Revision Petition filed under Section 397 of the Code of Criminal Procedure, is directed against the judgment dated 1.5.2013, passed by learned Sessions Judge, Solan, District Solan, H.P. in Criminal Appeal No.14-S/10 of 2012, affirming the judgment/order dated 14.12.2011/27.12.2011, passed by learned Chief Judicial Magistrate Solan, District Solan, H.P., in Criminal Case No.1/2 of 2010, whereby the learned trial Court while holding petitioner-accused guilty of having committed the offence punishable under Section 379 of IPC, convicted and sentenced him to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2000/- and in default of payment of fine, to undergo simple imprisonment of one month. 2. Briefly stated facts, as emerged from the record are that complainant namely Om Prakash (PW-5) got recorded his statement under Section 154 Cr.P.C., before the police that on the intervening night of 6.10.2009 and 7.10.2009, at about 1:30 AM, petitioner-accused(hereinafter referred to as the accused) committed theft of three tyres of the vehicles i.e. Maruti Alto Car bearing No.HP-20C-6835 owned by one Hemant Kumar and Maruti Van No.HP-14-A-4589 of Sh. Manoj Kumar at Surya Vihar, Rajgarh Road, Solan, Tehsil and District Solan, H.P. He further reported to the police that on the intervening night of 6.10.2009 and 7.10.2009, he was performing duty of Chowkidar at Surya Apartments, Surya Vihar, Rajgarh Road, Solan and he stopped the accused from removing the tyres from the vehicles, as referred above. Complainant after noticing the aforesaid theft, informed Sh. Manoj Kumar, who happened to be owner of Maruti Van No. HP-14-A-4589 and thereafter police was also informed regarding the incident. On the basis of aforesaid statement of the complainant Om Prakash (PW-5), under Section 154 Cr.P.C., FIR No. 267/2009, dated 7.10.2009 under Section 379 of IPC was registered against the accused at Police Station, Sadar, District Solan, H.P. Police after completion of the investigation, 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 charge under Sections 379 of IPC against the accused, to which he pleaded not guilty and claimed trial. 4. 3. Learned trial Court after satisfying itself that a prima-facie case exists against the accused, framed charge under Sections 379 of IPC against the accused, to which he pleaded not guilty and claimed trial. 4. 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 379 of IPC and accordingly convicted and sentenced him, as per the description given hereinabove. 5. Feeling aggrieved and dissatisfied with the impugned judgment/order dated 14.12.2011/27.12.2011, passed by learned trial Court, present petitioner-accused filed an appeal under Section 374(3) of the Code of Criminal Procedure before the learned Sessions Judge, Solan, which came to be registered as Criminal Appeal No. 14-S/10 of 2012, however fact remains that aforesaid appeal filed by the petitioner-accused was dismissed, as a result of which, judgment of conviction and order of sentence passed by the learned trial Court came to be upheld. In the aforesaid background, present petitioner-accused approached this Court by way of instant criminal revision petition, praying therein for his acquittal after quashing and setting-aside the impugned judgments passed by the learned courts below. 6. Mr. C.S.Thakur, learned counsel representing the petitioner-accused, vehemently argued that the impugned judgments passed by the courts below are not sustainable in the eyes of law as the same are not based upon the correct appreciation of evidence adduced on record by the respective parties and as such, same deserve to be quashed and setaside. Mr. Thakur, while inviting attention of this Court to the impugned judgments stated that bare perusal of the same suggest that both the courts below have failed to appreciate the evidence in its right perspective, as a result of which, erroneous findings to the detriment of the petitioner-accused have come on record, who is admittedly an innocent person. Mr. Thakur, also made this Court to travel through the evidence led on record by the prosecution to demonstrate that no conviction, if any, could be recorded on the basis of the statements having been made by so called material witnesses because none of the material prosecution witnesses stated something specific with regard to removal of the tyres by the petitioner-accused in their presence. Mr. Mr. Thakur, while referring to the statements of the witnesses also stated that there are material contradictions in the statements of the prosecution witnesses and as such, no conviction, if any, could be recorded against the present petitioner-accused on the basis of the aforesaid statements. In the aforesaid background, learned counsel for the petitioner prayed that present petitioner-accused may be acquitted of the charge after setting aside and quashing the impugned judgments passed by the learned Courts below. 7. Mr. Ramesh Thakur, learned Deputy Advocate General, supported the impugned judgments passed by both the Courts below. While refuting the aforesaid contention having been made by learned counsel for the petitioner, Mr. Thakur, contended that bare perusal of the impugned judgment passed by both the courts below suggest that same are based upon the correct appreciation of the evidence adduced on record by the prosecution and as such, there is no scope of interference, whatsoever, of this court, especially in view of the concurrent findings of fact and law recorded by the courts below. Mr. Thakur, with a view to refute the aforesaid contention having been made by the learned counsel for the petitioner, invited attention of this court to the evidence led on record by the prosecution to demonstrate that case against the petitioner-accused has been proved beyond reasonable doubt by the prosecution and bare perusal of the impugned judgment passed by both the Courts below suggest that learned courts below have dealt with each and every aspect of the matter very meticulously and there is no scope of interference whatsoever, in view of the concurrent findings of fact recorded by the learned Courts below. Mr. Thakur, also submitted that while exercising revisional jurisdiction, Court has very limited powers to re-appreciate the evidence available on record. Learned Deputy Advocate General, has placed reliance upon the judgment passed by Hon’ble Apex Court in case State of Kerala versus Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452. 8. In the aforesaid background, Mr. Thakur prayed that the present petition deserves to be dismissed being devoid of any merit. 9. I have heard learned counsel for the parties and have carefully gone through the record made available. 10. 8. In the aforesaid background, Mr. Thakur prayed that the present petition deserves to be dismissed being devoid of any merit. 9. I have heard learned counsel for the parties and have carefully gone through the record made available. 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 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 of 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.” 11. During the proceedings of the case, this Court had an occasion to peruse the impugned judgments as well as entire evidence led on record by the prosecution, perusal whereof, certainly suggest that courts below have not appreciated the evidence in its right perspective, rather there has been total misreading and misappreciation of evidence, as a result of which, erroneous findings have come on record. 12. In the instant case, prosecution with a view to prove its case examined as many as six witnesses. 12. In the instant case, prosecution with a view to prove its case examined as many as six witnesses. PW-1,Sh. Hemant Kumar, PW-2, Sh. Manoj Kumar and PW-5, Sh. Om Prakash (complainant) appears to be eye witnesses in the instant case. Apart from above, prosecution also examined PW-3, H.C, Chander Mohan, PW-4, ASI Shanti Swroop (Investigating Officer) and PW-6, Raj Kumar. The statements having been made by aforesaid witnesses may not be of much relevance as far as adjudication of the present case is concerned because admittedly none of them were present at the time of occurrence. PW-5, Om Prakash deposed before the court below that on the night of 7.10.2009 at about 1:30 AM while patrolling in and around parking area he saw accused removing tyres from Maruti Van No. HP-14-A-4589. He also stated that he saw that tyres of Maruti Alto Car No. HP-20-C- 6835 had been removed. Aforesaid prosecution witness further stated that immediately after noticing removal of tyres of aforesaid cars, he informed Manoj Kumar i.e. owner of Maruti Van No.HP-14-A-4589 and thereafter police was also informed telephonically. It has also come in his statement that thereafter accused was apprehended on the spot and handed over to the police and thereafter stolen articles were recovered and taken into possession. PW-1, Sh. Hemant Kumar and PW-2, Sh. Manoj Kumar corroborated the aforesaid version put forth by the complainant namely Sh. Om Prakash. 13. PW-2, Manoj Kuamr stated that on the night of 6.10.2009 at about 1:30 AM, he received a telephonic call from the complainant disclosing that someone had removed tyres from his van and accordingly he went to the spot and found that accused had been apprehended by the complainant. He also stated that thereafter matter was reported to the police and stolen tyres alongwith tools were taken into possession vide seizure memo Ex.PW1/A. PW-2, Sh. Manoj Kumar also made similar statement as of PW-1, Sh. Hemant Kumar. 14. Conjoint reading of the statements of aforesaid witnesses certainly compels this Court to agree with the submissions having been made by the learned counsel for the petitioner that no conviction, if any, could be recorded on the basis of aforesaid statements having been made by these prosecution witnesses because of material contradictions in their statements. 15. Hemant Kumar. 14. Conjoint reading of the statements of aforesaid witnesses certainly compels this Court to agree with the submissions having been made by the learned counsel for the petitioner that no conviction, if any, could be recorded on the basis of aforesaid statements having been made by these prosecution witnesses because of material contradictions in their statements. 15. PW-5, Om Prakash stated that he had telephonically informed Manoj Kumar, who came on the spot and thereafter Manoj Kumar informed Hemant Kumar, the owner of the another vehicle telephonically. PW-2, Manoj Kumar stated that he had parked his vehicle bearing registration No. HP-14-1-4589 on the road near Surya Vihar at about 8:00 PM. He further stated that at about 1:30 AM, he received telephonic call from Om Prakash Chowkidar that the tyre of his vehicle has been removed, at which he rushed to the spot and saw that front tyre of his vehicle has been removed alongwith the rear tyre of the Alto car bearing registration No. HP-20-C-6835, which was parked near his vehicle. He also stated that he telephonically informed Hemant Kumar i.e. owner of another vehicle. In the cross-examination, PW-1 and PW-2 have admitted that they did not see the accused removing the tyres. 16. Interestingly, there is no explanation available on record that how complainant Om Prakash PW-5, who happened to be Chowkidar of Suraya Apartments, Solan could know the telephone numbers of these prosecution witnesses i.e. Manoj Kumar and Hemant Kumar because admittedly PW-5, nowhere stated that he had prior acquaintance with the aforesaid witnesses. Similarly, there is nothing in the statements of PW-1 and PW-2 that they had some acquaintance with Sh. Om Prakash (PW-5). There is nothing in the statement of PW-5 that he noted telephone numbers of PW-1 and PW-2 from some document lying in the front window of the cars. If, statement of PW-5 is carefully perused, he nowhere states that he saw the petitioner-accused removing tyres, rather it has come in his statement that while patrolling he noticed that front tyre of Maruti Car No. HP-14-A 4589 was removed. If, statement of PW-5 is carefully perused, he nowhere states that he saw the petitioner-accused removing tyres, rather it has come in his statement that while patrolling he noticed that front tyre of Maruti Car No. HP-14-A 4589 was removed. It has nowhere come in his statement that immediately after noticing removal of the tyre, he apprehended the petitioner-accused, rather his statement suggests that after noticing the removal of tyres from the cars, he informed PW-1, who further informed PW-2, who admittedly reached the spot after 35 minutes of the call having been made by PW-5. Once, PW-5 had seen the petitioner accused removing tyres, it is not believable that despite that petitioner-accused remained at the spot and not made an effort to run away from the spot of occurrence because PW-5 has not stated that immediately after noticing removal of the tyre he apprehended the petitioner accused, rather all the prosecution witnesses stated that they reached at the spot and apprehended the petitioner-accused. 17. Leaving everything aside, none of these material witnesses as cited by the prosecution stated something specific with regard to removal of tyres by the petitioner-accused, rather PW-1 and PW-2 in their cross-examination categorically admitted that they did not see the petitioner accused removing tyres from their cars. Apart from above, it is not understood that when the complainant PW-5 saw the petitioner-accused removing tyre from the car, why he did not raise any alarm, especially when incident occurred near residential colony. 18. This Court after having carefully examined the statements having been made by these prosecution witnesses, has no hesitation to conclude that courts below have not appreciated the evidence in its right perspective and there is no discussion/analysis, as such of the evidence in the judgment passed by the learned trial court while holding the petitioner accused guilty of having committed the offence punishable under Section 379 of IPC. Bare perusal of the judgment passed by the courts below suggest that while holding petitioner accused guilty of having committed the offence, it has simply placed reliance upon the statement of PW-1, PW-2 and PW-5 without critically analyzing their statements in view of the defence put forth by the petitioner-accused, who categorically in his statement recorded under Section 313 Cr.P.C. stated that he has been falsely implicated in the case. Admittedly, there are material contradictions in the statements having been made by the prosecution witnesses and by no stretch of imagination same could be termed to be cogent and convincing evidence, which could enable to court below to record conviction of the petitioner accused under Section 379 of IPC. 19. After perusing the statements of the prosecution witnesses as well exhibits placed on record, two views are possible in the present case and as such, the petitioneraccused is entitled to the benefit of doubt. The learned counsel for the petitioner-accused has placed reliance on the judgment passed by Hon’ble Apex Court reported in State of UP versus Ghambhir Singh & others, AIR 2005 (92) Supreme Court 2439, wherein the 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, his 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 of 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.” 20. 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.” 20. 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. 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. 21. Consequently, in view of the aforesaid discussion, this Court has no hesitation to conclude that the judgment passed by both the Courts below are not based on correct appreciation of evidence available on record and as such, same are quashed and set-aside. Accused is acquitted of the charge. His bail bonds are discharged. The fine amount, if any deposited by the petitioner accused be refunded to him. The present criminal revision petition stands disposed of, so also pending applications, if any.