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2017 DIGILAW 553 (HP)

Karan Ran v. State of Himachal Pradesh

2017-05-19

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Instant Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment dated 11.6.2009, passed by learned Sessions Judge, Hamirpur, District Hamirpur, H.P., in Criminal Appeal No.26 of 2009, affirming the judgment of conviction and sentence, dated 2.3.2009, passed by learned Chief Judicial Magistrate Hamirpur, District Hamirpur, H.P., in criminal Case No.233-I of 2007/20-II of 2008, whereby the learned trial Court while holding petitioner-accused guilty of having committed the offence punishable under Sections 323 and 341 of IPC, convicted and sentenced him as under:- 1. To undergo simple imprisonment for a period of six months and to pay fine of Rs.1000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month under Section 323 IPC. 2. To undergo simple imprisonment for a period of one month and to pay fine of Rs.500/- and in default of payment of fine, to undergo simple imprisonment for a period of seven days under Section 341 of IPC. 2. In nutshell, the case of the prosecution is that on 13th August, 2007, complainant namely Rajat Sharma (PW-5) alongwith his friend Abhishek Kumar(PW-2) were going towards Government Degree College, Hamirpur and when they reached near bus stand, Hamirpur at about 11:30 A.M. suddenly a vehicle bearing registration No. HP-22-T-9144 came there and it was stopped near them. The petitioner-accused namely Karan Rana (hereinafter referred to as the accused) got down from the vehicle and started giving fist and leg blows to both of them i.e. PW-2 and PW-5. He accused them of sending obscene SMS to him. Lateron, shopkeepers came on the spot and rescued them. In the aforesaid scuffle, which allegedly took place between the complainant and the accused, Abhishek Kumar (PW-2) and Rajat Sharma(PW-5) suffered injuries. On the basis of the aforesaid statement having been made by the complainant namely Rajat Sharma under Section 154 Cr.P.C., formal FIR Ex.PW3/A came to be registered in police Station, Hamirpur. After completion of the investigation, police 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, put notice of accusation under Sections 341 and 323 of IPC to the accused, to which he pleaded not guilty and claimed trial. 4. After completion of the investigation, police 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, put notice of accusation under Sections 341 and 323 of IPC to 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 341 and 323 of IPC and accordingly convicted and sentenced him, as per the description given hereinabove. 5. Feeling aggrieved and dissatisfied with the impugned judgment dated 2.3.2009, passed by the learned trial Court, present petitioner-accused filed an appeal under Section 374 of the Code of Criminal Procedure before the learned Sessions Judge, Hamirpur, which came to be registered as Criminal Appeal No. 26 of 2009, however fact remains that aforesaid appeal filed by the petitioner-accused was dismissed, as a result of which, judgment of conviction and sentence recorded by the learned trial Court came to be upheld. In the aforesaid background, present petitioner 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. Devender Sharma, learned counsel representing the petitioner, while referring to the impugned judgments passed by the learned courts below, vehemently argued that the same are not based upon the correct appreciation of the evidence adduced on record by the prosecution and as such, same deserve to be quashed and set-aside. Mr. Sharma, also contended that bare perusal of the impugned judgment passed by the courts below suggest that evidence led on record by the prosecution has not been read in its right perspective, as result of which, erroneous findings to the detriment of the petitioner-accused have come on record, who is admittedly an innocent person. With a view to substantiate his aforesaid arguments, Mr. Sharma, invited attention of this Court to the evidence led on record by the prosecution to demonstrate that none of the independent witness was associated by the prosecution and courts below merely on the statement of victims held petitioner-accused guilty of having committed the offence punishable under Sections 341 and 323 of IPC. Mr. Sharma, invited attention of this Court to the evidence led on record by the prosecution to demonstrate that none of the independent witness was associated by the prosecution and courts below merely on the statement of victims held petitioner-accused guilty of having committed the offence punishable under Sections 341 and 323 of IPC. Mr. Sharma, further contended that even if the statements having been made by PW-2 and PW-5, who were allegedly beaten by the petitioner-accused are read in conjunction with each other, same could not be made basis to record conviction against the petitioner-accused as there are material contradictions in their statements. Mr. Sharma, while specifically referring to the cross-examination of aforesaid witnesses, made an attempt to prove that number of shops were existing at the spot of occurrence and as such, investigating Agency ought to have associated independent witnesses to make the prosecution story more reliable and trustworthy. In the aforesaid background, learned counsel for the petitioner prayed that present petitioner-accused may be acquitted of the notice of accusation after setting aside and quashing the impugned judgments passed by the learned Courts below. 7. Mr. P.M. Negi, learned Additional Advocate General, while refuting the aforesaid contentions having been made by the learned counsel for the petitioner-accused, contended that impugned judgment passed by the courts below are based upon the correct appreciation of the evidence adduced on record by the prosecution and as such, present petition deserve to be dismissed out rightly. While referring to the impugned Judgments, Mr. Negi, contended that bare perusal of the judgments passed by the courts below suggest that each and every aspect of the matter has been dealt with very meticulously and there is no illegality and infirmity in the impugned judgments passed by the learned courts below 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. Negi, while inviting attention of this court to the statements of PW-1, PW-2 and PW-5 stated that there was no requirement for the prosecution to associate independent witnesses in view of the specific and candid statements having been made by the aforesaid prosecution witnesses, wherein both of them have categorically stated that on the date of incident they were given beatings by the petitioner-accused, who had admittedly prior enmity with them. Mr. Mr. Negi, while placing reliance upon the judgments so relied upon by the courts below while considering the arguments having been made by the learned counsel for the petitioner-accused before the court below that no reliance, if any, could be placed on the statements of PW-2 and 5, in the absence of independent witnesses, Mr. Negi, reitereated and stated that same could not be a ground for the court below to ignore the candid statements having been made by PW-2 and PW-5 with regard to the alleged beatings given to them by the petitioner accused. Mr. Negi, also submitted that while exercising revisional jurisdiction, Court has very limited powers to re-appreciate the evidence available on record. Learned Additional Advocate General, has placed reliance upon the judgment passed by the Hon’ble Apex Court in case State of Kerla versus Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 . 8. In the aforesaid background, Mr. Negi prayed that the present petition deserves to be dismissed being devoid of any merit. 9. I have heard learned counsel representing 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 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 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). 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. This Court, solely with a view to ascertain the genuineness and correctness of the submissions having been made by the learned counsel for the petitioner-accused viz-a-viz impugned judgment of conviction recorded by the Courts below, carefully examined the impugned judgment of conviction recorded by the Courts below as well as the evidence adduced on record by the prosecution to prove its case, perusal whereof, certainly compels this court to agree with the contentions having been made by the learned counsel for the petitioner that no reliance, if any, could be placed on the statements of PW-2 and PW-5 by the Court below while holding the petitioner-accused guilty of having committed the offence punishable under Section 341 of 323 of IPC, especially in view of the material contradictions in their statements with regard to the alleged incident. True, it is that petitioner-accused could be convicted solely on the basis of the statements of injured/victims and absence of independent witnesses cannot be termed to be fatal to the case of the prosecution. But interestingly, in the instant case, as clearly emerge from the record that the alleged incident occurred at the bus stand of Hamirpur, wherein admittedly numbers of shops were existing. Both the aforesaid prosecution witnesses have admitted in their cross-examination that there were numbers of shops. 12. Apart from above, it is the case of the prosecution that PW-2 and PW-5 were rescued from the clutches of the petitioner-accused by the shop keepers, but it is not understood that why such persons were not associated by the prosecution while conducting the investigation or more particularly why they were not cited as witness. 12. Apart from above, it is the case of the prosecution that PW-2 and PW-5 were rescued from the clutches of the petitioner-accused by the shop keepers, but it is not understood that why such persons were not associated by the prosecution while conducting the investigation or more particularly why they were not cited as witness. Had the prosecution cited any of the local shopkeeper, who witnessed the alleged incident, it would have strengthen the case of the prosecution. Apart from above, it clearly emerges from the statement of PW-2 that at that time one more person namely Monti was sitting in the car of the accused. But there is nothing on the record suggestive of the fact that aforesaid person namely Monti was associated in the investigation by the investigating Agency. Since, PW-2 and PW-5 had specifically named this person in their statements as well as in the first statement made under Section 154 Cr.P.C to the police, it was incumbent upon the investigating Agency to associate him in the investigation and thereafter cite him as prosecution witness. 13. PW-2, Abhishek Kumar stated before the Court that when he was going alongwith the complainant(PW-5), at that time, petitioner-accused namely Karan Rana came there in the vehicle bearing registration No. HP 22-A-9144 and started giving beatings to Rajat Sharma (PW-5) and when he intervened, he was also given beatings by him. But in his cross-examination, he has admitted that there had been dispute earlier also between the parties and he lodged an FIR earlier against the petitioner-accused. He further admitted that they are not in speaking terms with the petitioner-accused and their relations are also strained. Rajat Sharma (PW-5) also stated on the similar lines as stated by PW-2. 14. Conjoint reading of the statements of aforesaid prosecution witnesses though suggest that there was a scuffle between the complainant and the accused. Similarly, there is no dispute inter-se the parties, rather it clearly emerge from the record that they had inimical relation and had already lodged the complaint with the police against each other. PW-2, in his statement stated that beatings at first instance were given to PW-5 and lateron when he tried to rescue him he was also given beatings by the petitioner-accused, whereas PW-5 nowhere stated that at first instance beatings were given to him and subsequently when PW-2 intervened he was also given beatings. 15. PW-2, in his statement stated that beatings at first instance were given to PW-5 and lateron when he tried to rescue him he was also given beatings by the petitioner-accused, whereas PW-5 nowhere stated that at first instance beatings were given to him and subsequently when PW-2 intervened he was also given beatings. 15. There is nothing in the evidence adduced on record by the prosecution from where it can be inferred that whether dispute, if any, was between Abhishek Kumar and petitioner or Rajat Sharma and petitioner-accused because it has nowhere come in the statement of either of prosecution witnesses to whom petitioner-accused alleged that he sent obscene SMS on his mobile. In the facts and circumstances, as have been narrated above, this court sees substantial force in the arguments of learned counsel for the petitioner that the statement, if any, of independent witness could be material to unearth the truth, especially when it stands duly proved on record that the parties had inimical relations towards each other. 16. At the cost of repetition, it may again be reiterated that conviction, if any, can also be recorded solely on the statement of injured, but in peculiar facts and circumstances of the case where it stands duly proved on record that both the parties have filed the cross FIR’s against each other, prosecution ought to have associated some independent witness that too when they were easily available in the bazaar. 17. True, it is that medical evidence led on record by the prosecution in the shape of statement of PW-1 Dr. Parveen Kumar suggests that PW-2, Abhishek Kumar suffered injury which could be caused by blunt weapon but since in view of the facts and circumstances of the case, as narrated above, prosecution has not been able to connect the petitioner-accused with the alleged incident, same may not be of much reliance. 18. 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 petitioner-accused is entitled to the benefit of doubt. 18. 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 petitioner-accused 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) SC 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.” 19. 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. 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.” 19. 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. 20. Consequently, in view of the aforesaid discussion made hereinabove, this Court has no hesitation to conclude that the judgment passed by both the courts below are not based upon the correct appreciation of the evidence available on record and as such, same are quashed and set-aside. Accused is acquitted of the notice of accusation framed against him under Sections 323 and 341 of IPC. His bail bonds are discharged. The fine amount, if any deposited by the petitioner accused be refunded to him. Accordingly, the present petition is disposed of alongwith pending applications, if any.