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2023 DIGILAW 1957 (RAJ)

Bhawani Shankar v. State of Rajasthan

2023-10-11

BIRENDRA KUMAR

body2023
ORDER : Birendra Kumar, J. - Petitioner faced trial in criminal case No. 72/2021 for offence under Section 326 of IPC. The learned trial Judge awarded three years simple imprisonment alongwith fine of Rs. 5,000/- and in default of payment of fine, three months simple imprisonment was ordered. The conviction was challenged in criminal appeal No.108/2003. The learned appellate court dismissed the appeal vide judgment dated 28.01.2004 with modification in sentence to the extent that three years simple imprisonment was reduced to simple imprisonment for one year. 2. Prosecution case as disclosed in the FIR is that on a sudden quarrel, the petitioner allegedly caused injury at the head of the informant with a kutia (a sharp cutting weapon). The Doctor has found fracture of skull bone and injury caused by a sharp weapon. The injured PW-3 categorically supported the prosecution case. 3. Learned counsel for the petitioner submits that there is no independent witness in this case. The radiologist was not produced to substantiate the medical opinion. Moreover, the doctor PW-12 stated that such injury is possible even by a hard blunt substance as there is nothing between the skull bone and upper skin. 4. Since both the courts below have accepted the testimony of injured, who is more reliable than any other witness, the scope of interference is very limited. Moreover, corroboration is not the requirement of law rather, it lends support to the main evidence. If the doctor has found consistent injury to that alleged by the injured and both the courts below have taken note of the fact that the radiologist was not there, the scope of interference by this third court is limited one. 5. The scope of interference with concurrent findings of fact in criminal revision was stated by the Hon'ble Supreme Court in Manju Ram Kalita v. State of Assam reported in (2009) 13 SCC 330 as follows:- 9. ....if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence. 10. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence. 10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice. 8. ....The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure." 6. The aforesaid view was reiterated by the Hon'ble Supreme Court in Malkeet Singh Gill v. The State of Chattisgarh reported in AIR 2022 SC 3283 , wherein, the Supreme Court made the following observation:- "8. ....The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate Court and the scope of interference in revision is extremely narrow. Section 397 of Criminal Procedure Code (in short 'CrPC') vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be wellfounded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings." 7. In view of the settled position of law stated above, this court is not inclined to interfere with the finding of fact concurrently recorded by the courts below specially when the finding is not perverse one. Therefore, the conviction of the petition is upheld. 8. Though the courts below have not considered the scope of application of the Probation of Offenders Act, 1958 or Section 360 Cr.P.C., however, the law is well settled that the provisions of Probation of Offenders Act or Section 360 Cr.P.C. would not be applicable when conviction is under Section 326 IPC, which carries sentence of imprisonment for life. 8. Though the courts below have not considered the scope of application of the Probation of Offenders Act, 1958 or Section 360 Cr.P.C., however, the law is well settled that the provisions of Probation of Offenders Act or Section 360 Cr.P.C. would not be applicable when conviction is under Section 326 IPC, which carries sentence of imprisonment for life. Reference may be made to Goverdhan Dass v. Chaman Lal and Others reported in (2021) 14 SCC 757 . 9. Learned counsel for the petitioner has relied on the judgment of the Hon'ble Supreme Court in Lakhvir Singh Etc. v. The State of Punjab and Another vide criminal appeal Nos. 47-48/2021 decided on 19.01.2021. In Lakhvir Singh's case (supra), the Hon'ble Supreme Court was considering the conviction of the appellant who was aged about 21 years on the date of conviction. Evidently, of less than 21 years on the date of incident. The court was further considering that if statute provides minimum sentence of seven years, the same would not come in the way of consideration of the benefits of the Probation of Offenders Act. Moreover, Goverdhan Dass's case (supra) is direct on conviction under Section 326 IPC, wherein, one of the punishment is imprisonment for life and section 4 of the Probation of Offenders Act excludes the benefit to a convict for offence which is punishable with death or imprisonment for life. 10. Lack of evidence may make the concurrent finding of facts by the courts below perverse, but insufficiency of evidence cannot be a ground for interference by a third court. Accordingly, this revision petition stands dismissed. 11. The petitioner is directed to surrender within two weeks and serve out sentence, failing which, the court below shall take coercive steps for apprehension of the petitioner. 12. Let a copy of this order be sent to the trial Judge alongwith the lower court records.