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2018 DIGILAW 1842 (HP)

Devi Ram v. State of H. P.

2018-10-23

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. 1. Instant criminal revision petition filed under Section 397 read with Section 401 of the Cr.PC, is directed against the judgment dated 9.9.2011, passed by the learned Additional Sessions Judge, Mandi District Mandi, H.P., in Criminal Appeal No. 15 of 2011, affirming the judgment of conviction and order dated 4.2.2011/7.2.2011, passed by the learned Judicial Magistrate, 1st Class, Karsog District Mandi, H.P., in Case No. 218-1/2008, whereby the learned court below while holding the petitioner-accused guilty of having committed offence punishable under Section 353 of IPC, sentenced him to undergo simple imprisonment for a period of three months and to pay fine of Rs. 500/-. 2. Briefly stated facts as emerge from the record are that the complainant (PW 1) got his statement recorded under Section 154 Cr.PC., alleging therein that on 14.8.2008, when he was discharging his duty as conductor in HRTC bus having registration No. HP-28A-3033 en route Gaddidhar to Karsog (Kao), accused, who was travelling in the bus refused to pay the bus fare. He further alleged that when bus reached near Kao at 6:20 pm, accused caught hold of him from his neck and gave him beatings. Complainant further alleged that he was rescued by person namely Kamal Kumar and bus driver namely Jai Singh (PW 2), from the clutches of the accused. Complainant also alleged that accused by giving him beatings obstructed him from discharging his duties as public servant and as such, case be registered against him. On the basis of aforesaid statement having been made by the complainant (PW 1), formal FIR Ext. PW 6/B, came to be registered against the petitioner accused. Police after completion of the investigation, presented the challan before the competent court of law, who on being satisfied that prima-facie case exists against the accused persons, put notice of accusation to the accused under Sections 353 and 332 IPC, to which he pleaded not guilty and claimed trial. 3. Learned trial Court on the basis of material adduced on record by the respective parties held the accused guilty of having committed offence punishable under Section 353 IPC and accordingly, convicted and sentenced him as per description given herein above. 4. 3. Learned trial Court on the basis of material adduced on record by the respective parties held the accused guilty of having committed offence punishable under Section 353 IPC and accordingly, convicted and sentenced him as per description given herein above. 4. Being aggrieved and dis-satisfied with the judgment of conviction recorded by the learned trial Court, the petitioner-accused preferred an appeal before the learned Additional Sessions Judge, Mandi District Mandi, H.P., however, fact remains that the learned Additional Sessions Judge, vide judgment dated 9.9.2011, dismissed the appeal preferred by the petitioner accused, as a result of which the impugned judgment of conviction passed by the learned trial Court, came to be upheld. In the aforesaid background, present petitioner approached this Court in the instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the courts below. 5. Mr. Inder Sharma, learned counsel representing the petitioner while making this Court, travel through the evidence led on record by the prosecution, made a serious attempt to persuade this Court to agree with his contention that the courts below have fallen in grave error while placing undue reliance on the statements of PW 1 and PW 2, who happened to be conductor and driver of the bus. He further contended that despite there being availability of numerous independent witnesses, no effort was ever made by the prosecution to associate the independent witnesses, which itself suggests that story put forth by the prosecution is/was concocted. While referring to the initial statement given by the complainant (PW 1) under Section 154 Cr.PC, learned counsel representing the accused stated that alleged incident was seen by person namely Kamal Kumar and driver Jai Chand, but there is no explanation available on record that why person namely Kamal was not cited as independent prosecution witness. Lastly, Mr. Inder Sharma, learned counsel, contended that conduct of complainant itself suggests that he lodged a false report against the accused to save himself because at the time of alleged incident, he was under the influence of liquor, He stated that it has specifically come in the FIR that complainant after lodging of FIR refused to undergo medical test and as such, allegation having been made by the accused with regard to his having consumed liquor remained un-rebutted, but despite that court below held accused guilty of having committed offence punishable under Section 353 IPC. 6. 6. Mr. Sanjeev Sood, learned Additional Advocate General, while supporting the impugned judgment of conviction recorded by the courts below contended that there is no scope of interference as far as this Court is concerned, especially, in view of the concurrent finding of fact and law recorded by the courts below. He further contended that bare perusal of impugned judgment of conviction and sentence recorded by the courts below clearly suggests that same are based upon proper appreciation of evidence and as such, same cannot be interfered with. While refuting the contention put forth by the learned counsel representing the petitioner that prosecution failed to prove beyond reasonable doubt that on the date of alleged incident, accused manhandled the complainant, Mr. Sood while referring to the statements of PW 1 and PW 2 contended that both the material prosecution witnesses in one voice stated that on the date of alleged incident, accused not only refused to pay the fare but also gave beatings to the complainant, who at that relevant time was discharging his official duty. Mr. Sood, further contended that true it is that no independent witness came to be cited by the prosecution in support of its case, but by now it is well settled that version put forth by interested witnesses cannot be brushed aside solely on the ground of non-association of independent witnesses. 7. Having heard learned counsel for the parties and perused the record, this Court finds that factum with regard to alleged incident is not in dispute. Similarly, there is no dispute as far as journey undertook by the accused in the bus on the date of alleged incident is concerned. PW 1 Lal Singh (complainant) deposed before the court below that accused was not paying bus fare and was arguing with him. He deposed that when bus reached at Kao, at about 6:20 pm, accused caught hold of him from his neck and slapped him. He also stated that he was rescued by driver of the bus but if this statement of his, is read juxtaposing his initial statement made under Section 154 Cr.PC, it creates suspicion and doubt with regard to its correctness because in his initial statement made under Section 154 Cr.PC, he stated that he was rescued from the clutches of the accused by person namely Kamal and driver Jai Chand. Moreover, it is not understood that why person namely Kamal, who could be material independent prosecution witness was not cited as prosecution witness. No doubt, driver Jai Chand, came to be cited as PW 2, who corroborated the version put forth by PW 1 complainant, but he deposed that he rescued the conductor along with other persons, meaning thereby that there were also some other persons travelling in the bus, but there is no explanation available on record that why effort, if any, was not made by the prosecution to associate the independent witnesses, when they were available in abundance. True it is that version put forth by interested witnesses cannot be brushed aside solely on the ground of non-association of independent witnesses, but here is a case, where independent witnesses were available in abundance as clearly emerges from the statements of PWs 1 and 2 and as such, effort should have been made by the prosecution to associate independent witnesses to lend support to its story. 8. Accused in his statement recorded under Section 313 Cr.PC denied the case of the prosecution in toto, but if pattern of cross-examination conducted on his behalf is seen/perused, it clearly suggests that effort was made on behalf of the defence to set up a case that quarrel took place between the accused and the complainant on account of non-payment of balance amount by the accused, who was allegedly under the influence of liquor. Though there is no specific evidence led on record by the defence to prove the aforesaid fact, but careful perusal of FIR Ext. PW 6/B clearly suggests that complainant refused to undergo medical test after lodging of FIR, which certainly compels this Court to agree with the contention of Mr. Inder Sharma, learned counsel for the petitioner that possibility of complainant's being under the influence of liquor at that relevant time, cannot be ruled out. But this aspect of the matter has been totally missed out by the courts below while ascertaining the guilt, if any, of the accused. Interestingly, both the courts below while dealing with the aforesaid aspect of the matter have returned a vague finding. But this aspect of the matter has been totally missed out by the courts below while ascertaining the guilt, if any, of the accused. Interestingly, both the courts below while dealing with the aforesaid aspect of the matter have returned a vague finding. Both the courts failed to appreciate the fact that once complaint was lodged by the complainant alleging therein that he has been given beatings, police party was under obligation to get him medically examined so that factum with regard to injury, if any, suffered by the him, in the alleged incident, could be ascertained. 9. In the case at hand, PW 1 claimed that he was slapped, whereas PW 2 driver has stated that he was manhandled and given beatings but since complainant refused to undergo medical examination, this Court has reason to presume that complainant purposely not got himself medically examined so that factum with regard to his being under the influence of liquor would not come to fore. 10. No doubt interested witnesses can be called interested only when he/she drives some benefit from the result of litigation, but in the case at hand, it is not in dispute that both the material prosecution witnesses are closely associated to each other being driver and conductor of one bus and as such, courts below while ascertaining the guilt of the accused were required to examine their testimony with utmost care and caution so that no prejudice is caused to the accused, especially, when there is evidence suggestive of the fact that many independent witnesses were available on spot. 11. Evidence discussed herein above is sufficient to hold that in given facts and circumstances, two views are possible in the present case and as such present petitioner-accused is entitled to the benefit of doubt. In the present case, prosecution story does not appear to be plausible/trustworthy and as such same cannot be relied upon. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in "P. Satyanarayana Murthy v. District Inspector of Police State of Andhra Pradesh and Anr (2015) 10 SCC 152 , relevant para whereof is being reproduced herein below:- "26. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in "P. Satyanarayana Murthy v. District Inspector of Police State of Andhra Pradesh and Anr (2015) 10 SCC 152 , relevant para whereof is being reproduced herein below:- "26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused." 12. In the case titled "Jose alias Pappachan v. Sub-inspector of Police, Koyilandy and Anr. (2016) 10 SCC 519 , the Hon'ble Apex Court, has held as under:- "56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertain able by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted." 13. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted." 13. Reliance is also placed on the judgment passed by the Hon'ble Apex Court reported in State of UP v. Ghambhir Singh, AIR 2005 (92) SCC 2440, where 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, he 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." 14. The Hon'ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj v. 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." 14. The Hon'ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj v. 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." 15. At this stage, learned Additional Advocate General placed reliance on judgment passed by the Hon'ble Apex Court titled State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 , to suggest that this court has limited jurisdiction under Section 397 of the Cr.PC. 16. 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 v. 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 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." 17. Consequently, in view of the detailed discussion as well as law cited herein above, this Court sees substantial force in the criminal petition preferred by the petitioner and as such, same is allowed. Accordingly, judgments passed by the Courts below are quashed and set-aside. Petitioner accused is acquitted of the charges so framed against him. Bail bonds discharged. Interim order, if any, vacated. All applications, if any, also stand disposed of.