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2018 DIGILAW 1648 (HP)

Baldev Singh Rana v. State Of Himachal Pradesh

2018-09-12

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The present revision petition under Sections 397 and 401 of the Code of Criminal Procedure (for short the ''Code'') is directed against the judgment dated 20.6.2008, passed by the learned Sessions Judge, Kangra at Dharamshala, H.P. in Criminal Appeal No. 35B/X2007, whereby he dismissed the appeal filed by the petitioner and affirmed the judgment of conviction and sentence dated 23/24.10.2007 passed by the learned Judicial Magistrate, 1st Class, Baijnath, District Kangra, in Criminal Case No. 14II/2007, vide which the petitioner was convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 500/ and in default of payment of fine to further undergo simple imprisonment for one month under Section 447 of the Indian Penal Code (fort short, "IPC"); and to undergo simple imprisonment for one year and to pay a fine of Rs. 2000/ and in default of payment of fine to further undergo simple imprisonment for three months under Section 3 of the Prevention of Damage to Public Property Act, 1984 (for short, "the Act"). However, both the sentences were ordered to run concurrently. 2. Briefly stated, the case of the prosecution is that on 25.10.2006, PW2 Janak Chand, Incharge, HRTC Baijnath, reported to the police that adjoining to the HRTC Bus Stand is the shop of the petitioner, who is running business of confectionery therein. In between the land of HRTC and the said shop, there existed a boundary wall. The said wall was constructed at the time of construction of the Bus Stand itself, however, the petitioner on the intervening night of 24/25.10.2006 with an intention to occupy the land of HRTC got the said boundary wall dismantled by engaging some labourers. He was further found fixing shutter to the shop on the spot. 3. The investigation was carried out and during the course of which, spot map, Ext.PW4/A, was prepared and photographs of the spot, Ext.PW3/A to Ext.PW3/C were taken and thereafter, got developed and negatives of same were exhibited as Ext.PW3/D to Ext. PW3/F. The Regional Manager, HRTC gave a certificate, Ext.PW1/A qua damage caused to the government property. 4. Notice of accusation for the offences punishable under Section 447 IPC and Section 3 of the Act was put to the petitioner, to which he pleaded not guilty and claimed to be tried. 5. PW3/F. The Regional Manager, HRTC gave a certificate, Ext.PW1/A qua damage caused to the government property. 4. Notice of accusation for the offences punishable under Section 447 IPC and Section 3 of the Act was put to the petitioner, to which he pleaded not guilty and claimed to be tried. 5. The prosecution in order to prove its case examined as many as eight witnesses and thereafter, the petitioner was examined under Section 313 Cr.P.C., in which he claimed false implication, however, he did not lead any evidence in his defence. 6. The learned trial Court after appreciating the evidence on record vide judgment dated 23/24.10.2007 convicted and sentenced the petitioner for commission of the offences as aforementioned. 7. Aggrieved by the judgment of conviction and sentence passed by learned trial court, the petitioner filed an appeal before the learned Sessions Judge, however, the same came to be dismissed vide judgment dated 20.6.2008, constraining him to file the instant revision petition. 8. It is vehemently argued by Mr. Anoop Chitkara, Advocate, assisted by Ms. Sheetal Vyas, Advocate, learned counsel for the petitioner, that the findings recorded by the learned Courts below are perverse and, therefore, judgments of conviction and sentence passed by both the learned Courts below deserve to be set aside. 9. On the other hand, learned Additional Advocate General would argue that the judgments rendered by both the learned Courts below are based upon the correct appreciation of evidence and passed strictly in accordance with law, therefore, the same call for no interference. 10. I have heard the learned counsel for the parties and have also gone through the records of the case. 11. At the outset, it may be observed that the revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioner has been convicted and sentenced without examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on 13.9.2017, wherein the scope of criminal revision has been delineated in the following manner: "In Amur Chand Agrawal vs. Shanti Bose and another , (1973) AIR SC 799, the Hon''ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. In State of Orissa vs. Nakula Sahu , (1979) AIR SC 663, the Hon''ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram , (1973) AIR SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system". In Pathumma and another vs. Muhammad , (1986) AIR SC 1436, the Hon''ble Apex Court observed that High Court "committed an error in making a reassessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact". In Bansi Lal and Others vs. Laxman Singh , (1986) AIR SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon''ble Supreme Court in the following terms: "It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a retrial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope." In Ramu @ Ram Kumar vs. Jagannath , (1994) AIR SC 26, Hon''ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant. In State of Karnataka vs. Appu Balu , (1993) AIR SC 1126 (SC), the Hon''ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to reappreciate the evidence. In Ramu alias Ram Kumar and Others vs. Jagannath , (1994) AIR SC 26 the Hon''ble Supreme Court held as under: "It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint." In Kaptan Singh and Others vs. State of M.P. and another , (1997) AIR SC 2485 (SC), the Hon''ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh , (1962) AIR SC 1788; Mahendra Pratap vs. Sarju Singh , (1968) AIR SC 707; P.N. G. Raju vs. B.P. Appadu , (1975) AIR SC 1854 and Ayodhya vs. Ram Sumer Singh , (1981) AIR SC 1415 and held that revisional power can be exercised only when "there exists a manifest illegality in the order or there is a grave miscarriage of justice". In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri , (1999) 2 SCC 452 , the Hon''ble Supreme Court held as under: "In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri , (1999) 2 SCC 452 , the Hon''ble Supreme Court held as under: "In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." In State of A.P. vs. Rajagopala Rao , (2000) 10 SCC 338 , the Hon''ble Supreme Court held as under: "The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a nonspeaking judgment." 12. Having set out the legal parameters for exercise of revisional jurisdiction, it cannot be denied that in case findings recorded by the learned Courts below are perverse, then obviously this Court would be entitled to interfere with the findings so recorded. 13. In order to see whether the findings as recorded by the learned Courts below are perverse, it would be necessary to refer to, in detail, the evidence so led by the prosecution in support of its case. 14. Pw1 Baini Prasad, Regional Manager, HRTC, deposed that on 25.10.2006 Janak Chand, Incharge, Bus Stand, Baijnath reported to him that on the previous night, the boundary wall of HRTC had been broken and work of laying of shutter was going on. 14. Pw1 Baini Prasad, Regional Manager, HRTC, deposed that on 25.10.2006 Janak Chand, Incharge, Bus Stand, Baijnath reported to him that on the previous night, the boundary wall of HRTC had been broken and work of laying of shutter was going on. He accordingly on 25.10.2006 visited the spot and found boundary wall of HRTC to have been dismantled and the masons at work for the purpose of fixing of the shutter in the shop. The said wall was got dismantled by the petitioner from his servants and labourers with an intention to have an entrance thereto from the side of the Bus Stand. 15. Pw2 Janak Raj, Incharge, HRTC Bus Stand Baijnath deposed that the petitioner was running a confectionery shop near HRTC Bus Stand and in between, there existed a boundary wall, which had been raised by the HRTC at the time of construction of the Bus Stand. On 25.10.2006 when he reached Bus Stand, he found the wall near said shop to have been dismantled and the construction work going on in the shop. Notably, this witness in his examinationinchief did not support the entire story as narrated in the FIR, Ext.PW2/A lodged by him and accordingly, he was declared hostile. 16. Pw3 Ajay Kumar is the photographer, who proved on record photographs, Ext. PW3/A to Ext.PW3/C. 17. Pw4 HC Jeet Kumar has investigated the case. He deposed that he got clicked the photographs of the spot and prepared the spot map. 18. Pw5 Ram Rattan, deposed that he is running a confectionery shop at Bus Stand whereas the petitioner is a contractor. He was declared hostile and during crossexamination, he clearly denied that the petitioner had dismantled the wall in question. 19. Pw6 Mehar Deen and PW7 Sureshtha Thakur and PW8 Kamal Chand are formal witnesses, therefore, their testimonies need not to be discussed. 20. Noticeably, the learned trial court solely on the basis of the photographs and the oral testimony of PW1 Baini Prasad convicted and sentenced the petitioner as aforesaid and the said conviction and sentence was affirmed by the learned Sessions Judge in a slip shod and cursory manner. 21. 20. Noticeably, the learned trial court solely on the basis of the photographs and the oral testimony of PW1 Baini Prasad convicted and sentenced the petitioner as aforesaid and the said conviction and sentence was affirmed by the learned Sessions Judge in a slip shod and cursory manner. 21. What has been clearly overlooked by both the learned courts below was that for the commission of an offence punishable under Section 447 IPC, there has to be violation of any of the stipulations of Section 441 CPC, however, there is no allegation or evidence of intimidation, insult or annoyance to any person in possession of such property. Thus, the offence under Section 447 IPC could not be taken to have been proved. 22. As regards damage to the government property, there is practically no evidence on record that any existing wall was found to have been broken on the intervening night of 24/25.10.2006. The alleged wall as per the site map was 4 feet in height and 6 feet in length. As per statement of PW2 Janak Chand, the wall was broken before 24/25.10.2006, however, the photographs placed on record which otherwise forms the shield anchor of the prosecution case go to show that there is no broken wall visible in the photographs taken by PW3 Ajay Kumar. In order to establish that there had been damage to the public property, it was essential for the prosecution to have got the site demarcated as well as identified and it was only then alone that the offence against the petitioner could have been proved. 23. Above all, there is no evidence worth to name to prove on record that it was the petitioner who had in fact broken the wall. From the photographs placed on record, no reminiscences or remains of the wall can be found. In addition thereto, the spot does not even suggest any fresh demolition, though it does suggest that there has been fresh construction that too within the precincts and boundary of the shop and not the Bus Stand. 24. In such circumstances, the findings recorded by both the learned courts below are clearly perverse as the prosecution has failed to establish its case beyond all reasonable doubts by leading clear, cogent and convincing evidence to bring home the guilt of the petitioner. 25. Accordingly, I find merit in the petition and the same is allowed. 24. In such circumstances, the findings recorded by both the learned courts below are clearly perverse as the prosecution has failed to establish its case beyond all reasonable doubts by leading clear, cogent and convincing evidence to bring home the guilt of the petitioner. 25. Accordingly, I find merit in the petition and the same is allowed. Consequently, the impugned judgments passed by both the learned courts below are quashed and set aside. The petitioner is acquitted of the charges framed against him. Fine amount, if deposited, by the petitioner be refunded to him. The bail bonds furnished by the petitioner are ordered to be discharged. Pending application(s), if any, also stands disposed of.