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2018 DIGILAW 908 (HP)

Roshan Lal v. State Of Himachal Pradesh

2018-05-16

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —The petitioner/accused (hereinafter referred to as the ''accused'') aggrieved by the judgments of conviction and sentence passed by learned Judicial Magistrate 1st Class, Court No. 2, Mandi, H.P. dated 20.4.2010/26.4.2010 and affirmed by the learned Additional Sessions Judge, Mandi, on 21.5.2011 in Criminal Appeal No. 46 of 2010, has filed the instant revision petition. 2. The case of the prosecution, in brief, is that the complainant Mangat Ram (PW-1) got recorded his statement before the Police to the effect that he was posted as driver in HRTC and driving the bus bearing registration No. HP-31-1507 on 13.7.2003 and Brij Lal (PW-3) was conductor. The bus was parked near Nerchowk. His scheduled time of departure was 9.30 a.m. Puran Chand, Durga Singh (PW-2) and Devi Singh were present in the bus. Traffic Constable Ghatal Ram (PW-10) was also there and discharging his duties. The accused entered in the bus at about 9.25 a.m. and enquired about the time of departure of the bus. The complainant replied that the bus would leave at 9.30 a.m. The accused started abusing the complainant and inflicted a blow on his right eye. Thereafter the accused ran away from the spot. An intimation was given to the police and entry Ext.PW-9/A was recorded. PW-11 SI Hoshiar Singh visited the spot and recorded the statement of Mangat Ram Ext.PW-1/A which was sent to the police station and on the basis thereof, FIR came to be registered. An application Ext.PW-11/A was made for conducting the medical examination of the complainant. PW-6 Dr. Chander Pandya conducted the medical examination and found lacerated wound over the right eye of the complainant. He issued MLC Ext.PW-6/A and site plan Ext.PW-11/B was prepared. The statements of the witnesses were recorded as per their version. An application Ext.PW-11/C was filed for taking abstract of duty register which was taken vide Ext.PW-5/A, posting order Ext.PW-4/A and certificate Ext.PW-4/B were obtained. On completion of investigation, the challan was prepared and on finding sufficient reasons, the learned trial Court summoned the accused for commission of offence punishable under Section 353, 332 and 504 IPC and framed charges against the accused for commission of offence as aforesaid. The accused pleaded not guilty and claimed to be tried. 3. The prosecution in support of its case, examined eleven witnesses. The accused pleaded not guilty and claimed to be tried. 3. The prosecution in support of its case, examined eleven witnesses. On closure of the prosecution evidence, the statement of accused under Section 313 Cr.P.C. was recorded in which he admitted that he was the owner of Thakur Bus Service, but denied that he was present at the spot and claimed that the driver and conductor were present in the bus at that time and a false case had been registered against him. However, no evidence in defence was produced by the accused. 4. After evaluating the evidence, the learned trial Court convicted and sentenced the accused as under: (i) To undergo rigorous imprisonment for nine months and to pay a fine of Rs.2, 000/- and in case of non-payment of fine to undergo simple imprisonment for three months for commission of offence under Section 332 of IPC. (ii) To undergo simple imprisonment for six months for commission of offence under Section 353 of IPC. (iii) It is however ordered and directed that sentence of substantive imprisonment shall run concurrently. The sentence in case of non-payment of fine shall run independently. 5. Aggrieved by the aforesaid judgment of conviction and sentence, the petitioner preferred an appeal before the learned Additional Sessions Judge, Mandi, which too, came to be dismissed vide its judgment dated 21.5.2011. 6. It is against both the judgments passed by the learned Courts below that the petitioner has now approached this Court by filing the instant revision petition by contending that the findings as recorded by the learned Courts below are perverse and, therefore, the judgments of conviction and sentence as passed by them, should be set-aside and the petitioner be honourably acquitted. I have heard the learned counsel for the parties and have gone through the records of the case. 7. However, before I deal with the contentions put-forth by the learned counsel for the petitioner, it would be necessary to delineate the scope and power of this Court while dealing with revision petition of the instant kind. 8. I have heard the learned counsel for the parties and have gone through the records of the case. 7. However, before I deal with the contentions put-forth by the learned counsel for the petitioner, it would be necessary to delineate the scope and power of this Court while dealing with revision petition of the instant kind. 8. In Amur Chand Agrawal vs. Shanti Bose and another , (1973) AIR(Supreme Court) 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. 9. In State of Orissa vs. Nakula Sahu , (1979) AIR(Supreme Court) 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(Supreme Court) 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". 10. In Pathumma and another vs. Muhammad , (1986) AIR(Supreme Court) 1436, the Hon''ble Apex Court observed that High Court "committed an error in making a re-assessment 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". 11. In Bansi Lal and others vs. Laxman Singh , (1986) AIR(Supreme Court) 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 re-trial 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 re-trial of the 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 re-trial 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." 12. In Ramu @ Ram Kumar vs. Jagannath , (1994) AIR(Supreme Court) 26, Hon''ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant. 13. In State of Karnataka vs. Appu Balu , (1993) AIR(Supreme Court) 1126 , the Hon''ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to reappreciate the evidence. 14. In Ramu alias Ram Kumar and others vs. Jagannath , (1994) AIR(Supreme Court) 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." 15. In Kaptan Singh and others vs. State of M. P. and another , (1997) AIR(Supreme Court) 2485 ) , the Hon''ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh , (1962) AIR(Supreme Court) 1788; Mahendra Pratap vs. Sarju Singh , (1968) AIR(Supreme Court) 707; P. N. G. Raju vs. B. P. Appadu , (1975) AIR(Supreme Court) 1854 and Ayodhya vs. Ram Sumer Singh , (1981) AIR(Supreme Court) 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". 16. 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. 16. 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." 17. 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 non-speaking judgment." 18. Bearing in mind the aforesaid exposition of law and restricted scope of revisional jurisdiction, I now proceed to analyze in brief the evidence available on record. 19. Adverting to the facts, it would be noticed that the prosecution had examined eleven witnesses. The complainant appeared as PW-1 and stated that the entire incident as stated above had taken place. On being cross-examined, he stated that he did not know the registration number of Thakur Bus Service of which the accused was the owner. 19. Adverting to the facts, it would be noticed that the prosecution had examined eleven witnesses. The complainant appeared as PW-1 and stated that the entire incident as stated above had taken place. On being cross-examined, he stated that he did not know the registration number of Thakur Bus Service of which the accused was the owner. However, he stated that his bus plied between Mandi and Gohar and schedule time of its departure from Nerchowk is 9.20 A.M. When his bus reached at Nerchowk, Thakur bus was not parked at that time and the traffic constable was at a distance of about 20-30 mtrs. from the spot. He further stated that on account of the injuries sustained, the blood was oozing out and his pant was stained with blood. He identified the accused, even though he did not know his name. 20. Pw-2, Durga Singh stated that he on the relevant date and time was present in the bus in question and at that time the bus was parked at Nerchowk. The accused came and inflicted a blow on the right eye of the complainant. In cross-examination, he feigned ignorance of the registration number of the bus and said that he did not know the petitioner. 21. Pw-3 Brij Lal stated that he was conductor in the bus in question in which Mangat Ram was the driver. The bus started from Sundernagar at 9.00 a.m. and was parked at Nerchowk at 9.25 a.m. Roshan Lal accused owner of Thakur Bus Service came and started talking to the driver and thereafter inflicted a blow on his right eye due to which he suffered bleeding injury. In cross-examination, he feigned ignorance about the registration number of the Thakur Bus Service or the time of its departure from Mandi. He stated that he knew the accused by face. 22. Pw-10 HHC Ghatal Ram also supported the prosecution version and stated that he at the relevant date and time was present at Nerchowk. He further stated that the owner of Thakur Bus Service came at Nerchowk and told the driver that the scheduled time of the departure of the bus was over and it should therefore took his bus away. The complainant stated that the scheduled time of departure was 9.30 a.m. and he would start the bus at the scheduled time. He further stated that the owner of Thakur Bus Service came at Nerchowk and told the driver that the scheduled time of the departure of the bus was over and it should therefore took his bus away. The complainant stated that the scheduled time of departure was 9.30 a.m. and he would start the bus at the scheduled time. However, the accused started beating the complainant and inflicted blows and on account whereof he sustained injuries. In cross-examination, he admitted that the bus was going from Mandi and was parked in front of the shop of Shiv Kumar, whereas, the bus coming from Sundernagar was parked outside Rana Market. The distance between these two places is 100-150 mtrs. He feigned ignorance about the registration number of the buses parked at Nerchowk. He stated that the complainant was not known to him prior to the incident. 23. It is vehemently argued by Mr. Lakshay Thakur, learned counsel for the accused that it has not been proved on record that at the relevant time the complainant was discharging his official duties because even the abstract of duty register Ext.PW-5/A is only a photocopy of said register. I find no merit in this contention for the simple reason that the incident has taken place at broad day light and the accused has been identified as such by all the prosecution witnesses, as referred to hereinabove. Moreover, the reason why the abstract photocopy of the duty register was tendered, has been duly explained by PW-5 when he states that the original has been lost. 24. As regards the injury suffered by the complainant, the same have been duly proved by PW-6 Dr. Chander Pandya, who conducted medical examination of the complainant and found the injury on his right eye-brow. He has specifically stated that the injury could have been caused by fist blow. 25. In view of the aforesaid discussion, no fault can be found with the judgments of conviction and sentence as passed by the learned Courts below. 26. At this stage, it is vehemently urged by Mr. Lakshay Thakur, learned counsel for the petitioner that taking into consideration the fact that incident took place as far as back on 11.8.2003 i.e. more than 14 years, a lenient view in the matter be taken and he be released on probation. 27. 26. At this stage, it is vehemently urged by Mr. Lakshay Thakur, learned counsel for the petitioner that taking into consideration the fact that incident took place as far as back on 11.8.2003 i.e. more than 14 years, a lenient view in the matter be taken and he be released on probation. 27. Similar request was made before the learned trial Magistrate, however, the same was declined in view of the judgment of the Hon''ble Supreme Court in Siyasaran vs. State of Madhya Pradesh , (1995) CriLJ 2126, wherein the Hon''ble Supreme Court while dealing with the case under Sections 333 and 506 Part II of IPC, refused to grant probation only on the ground that the accused/appellant therein had settled in life by taking employment in some Gramin Bank. Nonetheless, this Court cannot ignore the fact that the occurrence herein took place more than 14 years ago and the Hon''ble Supreme Court itself in Siyasaran''s case had reduced the sentence of imprisonment under both the counts, to the period already undergone, but had increased the fine to Rs. 50, 000/- to be paid to the victim as compensation. 28. Therefore, taking cue from the judgment of the Hon''ble Supreme Court, I am of the considered opinion that ends of justice would be subserved in case the conviction of the petitioner is maintained, but the sentence is modified to the one already undergone by the petitioner and instead of payment of Rs. 2,000/-, as directed by the learned trial Magistrate, he is directed to pay a sum of Rs. 50, 000/- which fine under Section 357 of Cr.P.C. shall be paid as compensation to the victim Mangat Ram. Ordered accordingly. 29. The payment be deposited before the learned trial Court on or before 31st August, 2018 for being paid over to the victim Mangat Ram. In the event of deposit, it shall be the duty of the trial Court to locate the victim Mangat Ram, most expeditiously so that he can obtain the compensation. In case there is failure to pay the aforesaid amount within the time allotted then the sentence as imposed by the learned trial Court and as affirmed by the learned Additional Sessions Judge, Mandi and further affirmed by this Court, shall sustain. 30. The revision petition is disposed of in the aforesaid terms, so also the pending application(s) , if any.