Himachal Pradesh High Court
Relu Ram vs State Of H.P. on 30 November, 2021
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 30th DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No.65 of 2012
.
Between:
SH. DESH RAJ, SON OF SH.
RELU RAM, RESIDENT OF
VILLAGE JANGEL, SUB TEHSIL
DHARAMPUR, DISTRICT MANDI,
H.P.
....PETITIONER
(BY MR. VIJAY VERMA, ADVOCATE)
AND
STATE OF H.P.
....RESPONDENT
(BY SUDHIR BHATNAGAR AND
MR. DESH RAJ, ADDITIONAL
ADVOCATE GENERALS WITH
MR. NARINDER THAKUR AND
MR. GAURAV SHARMA, DEPUTY
ADVOCATE GENERALS)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Instant Criminal Revision Petition filed under Section
397 read with Section 401 of Cr.P.C, lays challenge to judgment
dated 03.03.2012, passed by learned Additional Sessions Judge,
Mandi, District Mandi, H.P., in Criminal Appeal No.31 of 2010, titled
Desh Raj vs. State of H.P., affirming the judgment of conviction and
order of sentence dated 23.03.2010, passed by learned Judicial
Magistrate, 1st Class, Sarkaghat, District Mandi, H.P. in Police
Challan No. 157-II/2002, whereby learned court below while holding
.
the petitioner/accused (hereinafter referred to as 'accused') guilty of
having committed offence punishable under Section 332 of IPC,
convicted and sentenced him to undergo one year rigorous
imprisonment and pay fine of Rs.2000/- and in default of payment of
fine, to further undergo two months simple imprisonment.
2. Precisely, the facts as emerge from the record are that
PW-1, complainant Bir Singh, lodged a written complaint to Naib
Tehsildar Ext. PW-1/A, which was sent to Police Station and
thereupon FIR Ext.PW-7/A, was registered against the accused
under Section 332 of IPC, alleging therein that while he was posted
as Patwari in Patwar Circle, Bharori and was discharging his duty on
02.04.2002, at about 2.30. PM., accused Desh Raj came to his
office and asked him to issue certificate for getting water connection.
Complainant told the accused that his monthly meeting was fixed in
the office of Naib Tehsildar and certificate would be issued after
meeting. However, accused told the complainant that he was
demanding bribe. Complainant objected to aforesaid allegation
levelled by accused, on which, accused started hurling abuses and
thereafter gave beatings to him. Allegedly, accused inflicted blow on
the stomach of complainant and also threatened to break his leg.
Banka Ram- PW-2 and Rup Lal PW-5 rescued the complainant from
the accused. Besides above, accused also tried to tear papers lying
on the table. After having received written complaint from the Naib
Tehsildar, as has been taken note hereinabove, investigation was
.
conducted by HC PW-10, Kanshi Ram, who after having visited the
spot, prepared site plan Ext. PW-10/A. Medical examination of
complainant was conducted by Dr. Sneh Lata, PW-8, who while
issuing MLC Ext. PW-8/B found complainant to have suffered injury
caused by means of blunt edged weapon. Appointment order and
posting order of the complainant Ext. PW-4/A and Ext.PW-4/B, were
produced by Durga Dass, PW-4. After completion of investigation,
police presented challan in the competent court of law, who having
found prima facie case against the accused, charged him under
Section 332 of IPC, to which he pleaded not guilty and claimed trial.
3. Prosecution with a view to prove its case, examined as
many as 10 witnesses, whereas, accused in his statement recorded
under Section 313 Cr.P.C, denied the prosecution case in its
entirety and stated that complainant demanded Rs.100/- from him
as bribe. He stated that when he refused to pay bribe, he was given
beatings by complainant and was thrown out of the office. He also
deposed that he filed complaint before the police, but no action was
taken by the police. In his defence, he got the statements of two
persons, namely Sant Ram and Vijay Pal recorded.
4. Learned trial court on the basis of evidence led on
record by the respective parties, held accused guilty of having
committed offence punishable under Section 332 of IPC and
accordingly, convicted and sentenced him, as per description given
hereinabove.
.
5. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction and order of sentence recorded by court
below, accused preferred an appeal in the Court of learned
Sessions Judge, Mandi, which came to be dismissed vide judgment
dated 03.03.2012. In the aforesaid background, accused has
approached this Court in the instant proceedings, praying therein for
his acquittal after setting aside the judgment of conviction and order
of sentence recorded by courts below.
6. Mr. Vijay Kumar Verma, learned counsel representing
the petitioner/accused while making this Court to peruse the entire
evidence led on record by the prosecution vis-a-vis reasoning
assigned by courts below while holding the accused guilty of having
committed offence punishable under Section 332 of IPC,
vehemently argued that since there are material contradictions and
inconsistencies in the statements made by prosecution witnesses,
courts below erred in concluding the guilt of accused punishable
under Section 332 of IPC. Mr. Verma, made a serious attempt to
persuade this Court to agree with the contention that since it never
came to prove on record that at the time of alleged incident,
complainant was discharging his official duty, there was no occasion
otherwise for courts below to hold accused guilty of having
committed offence punishable under Section 332 of IPC. Lastly, Mr.
Verma, contended that though this is a clear-cut case of acquittal ,
but yet if this Court doesn't agree with the submissions made by
.
him, benefit of Probation of Offenders Act, may be extended in
favour of the petitioner/accused on account of the fact that alleged
incident had happened in the year 2002 and during this period,
accused has already suffered continuous trauma on account of
pendency of criminal case against him and in case, after 19 years of
incident, he is sent behind bars, it would cause irreparable loss to
him as well as his family, which is wholly dependent upon him.
7. Mr. Sudhir Bhatnagar, learned Additional Advocate
General while supporting the impugned judgment of conviction and
order of sentence recorded by courts below, strenuously argued that
bare perusal of statements of prosecution witnesses nowhere
suggests inconsistencies and contradictions, rather all the material
prosecution witnesses have stated in unison that petitioner/accused
gave beatings to complainant while he was discharging his official
duty and as such, no fault, if any, can be found with the findings
recorded by courts below. While responding to the prayer made on
behalf of petitioner/accused for extension of benefit of Probation of
Offenders Act, learned Additional Advocate General argued that
person like accused doesn't deserve to be extended benefit of the
Probation of Offenders Act because in such like cases, strong
message is required to be sent to the disgruntled persons like
petitioner to not to misbehave with the public officials while they are
discharging their official duties
.
8. Having heard learned counsel representing the parties
and perused the evidence led on record by respective parties vis-a-
vis reasoning assigned by court below while upholding the
judgment of conviction and order of sentence passed by trial court,
this Court finds no merit in the submissions of Mr. Vijay Kumar
Verma, learned counsel representing the petitioner that courts below
have failed to appreciate the evidence in right perspective, rather
this Court finds that prosecution has successfully proved beyond
reasonable doubt that on the date of alleged incident, complainant
was given beatings while he was discharging his official duties.
Though, as has been taken note hereinabove, prosecution in toto
examined 10 witnesses to prove its case, but to ascertain the guilt of
the accused, statements of PW-1, Bir Singh, PW-2 Banka Ram,
PW-3 Vinod Kumar and PW-5 Rup Lal are relevant. Besides
above, PW-6 Sharat Singh, Naib Tehsildar, who was first person to
receive complaint from the complainant, is also relevant.
9. PW-1, Bir Singh deposed that while he was discharging
government duty on 2.4.2002, at 2.30 P.M., the accused came and
demanded certificate for installing water tap. He told the
complainant that he has to leave to attend a meeting in the office of
Naib Tehsildar and such certificate would be issued after visiting the
spot. He deposed that accused told him to do his work at that
moment and thereafter he caught him by the neck and inflicted blow
on his stomach. He deposed that he was rescued by persons
.
namely Rup Lal, Om Chand and Banka Ram. He also stated that
accused threatened to kill him. Cross-examination conducted
upon this witness nowhere suggests that defence was able to
shatter the testimony of this witness or was able to extract
something contrary, which was stated in his examination-in-chief. In
this cross-examination, this witness admitted that there are other
shops, but he did not remember names of the owners of those
shops, but such admission, if any, on his part is of no relevance
because person namely Sh. Banka Ram, whose shop is located in
front of Patwarkhana, has corroborated the version put forth by PW-
1, complainant Bir Singh with regard to beating given to him by the
accused. PW-1, complainant, in his cross-examination denied that
shop of Banka Ram is located after ten shops from Patwarkhana.
He also denied that Banka Ram came after 30 minutes of the
altercation. He also admitted that Kanungo was already present
inside the Patwarkhana and probably he had asked for tea. This
witness has categorically stated in his cross-examination that PW-2,
Banka Ram had come to collect glasses. He denied that he had
demanded Rs.100/- for issuing certificate. He also denied that he
had earlier entered mutation of one alive lady. This witness though
admitted that a criminal case was instituted against him for the
commission of offences punishable under Sections 420, 467, 468 &
471 of IPC, but categorically denied that he and Kanungo had
dragged the complainant out of Patwarkhana and Banka Ram had
.
given beatings to the complainant. While denying the suggestion
put to him that he was not beaten by the accused, this witness
categorically denied that he did not suffer injury in the scuffle.
10. PW-2, Banka Ram, fully supported the version of the
complainant. He categorically deposed that PW-1 Bir Singh, was
present in the office on 02.04.2002, at about 2.30 P.M., when
accused caught him by his neck and slapped him. He deposed that
he rescued the complainant from the accused. This witness further
deposed that four people were inside the Patwarkhana at the time of
alleged incident including accused. However, this witness
specifically denied the suggestion put to him that at the time of
alleged incident, he was present in the shop and he went to
Patwarkhana after having heard noise. This witness also denied
that complainant and accused had scuffle on the road. He also
denied that complainant had demanded Rs.100/- from the accused
and had given beatings to him. This witness categorically supported
the version of the complainant that he had suffered injury on the
face, on account of beatings given by the accused. While denying
the suggestion put to him that he was inimical to the accused, this
witness categorically stated that complainant Bir Singh, had not
beaten the accused in his presence.
11. PW-5, Rup Lal, deposed that on the date of alleged
incident, he was called to Dharampur for disbursing wages and
.
complainant was present in the office when the accused came and
started demanding certificate for taking connection for water tap.
He deposed that complainant told accused to come after sometime,
but thereafter, they started beating each other. Though, this
witness was declared hostile, but if his statement is read in its
entirety, it clearly establishes factum with regard to scuffle inter se
complainant and accused.
r In his cross-examination, this witness
admitted that complainant was discharging his official duties and he
had suffered injury in the incident. He also stated in his cross-
examination that 3-4 people were also present inside Patwarkhana.
This witness also denied suggestion put to him that complainant
demanded Rs.100/- from the accused. Most importantly, this witness
denied in his cross-examination that accused was beaten by the
complainant. Similarly, PW-3 Vinod Kumar was also declared
hostile, but if cross-examination conducted upon this witness is
perused in its entirety, it also clearly establishes on record factum
with regard to beatings given by the accused to the complainant
while he was discharging his duties. If statements made by all the
prosecution witnesses, as discussed hereinabove, are read in-
conjunction, juxtaposing each other, this Court finds it difficult to
agree with the contention of Mr. Vijay Kumar Verma, learned
counsel representing the petitioner that there are material
contradictions and inconsistencies, rather this Court finds from the
statements made by prosecution witnesses that they all in unison
.
categorically deposed that at the time of alleged incident, petitioner
was discharging his official duties and he was given beatings by the
accused and as such, there appears to be no justification at all to
discard the testimony of the prosecution witnesses, as taken note
hereinabove.
12. DW-1 Sant Ram and DW-2 Vijay Pal, examined in
defence by the accused, nowhere supported the version put-forth by
accused in his statement recorded under Section 313 Cr.P.C.
Moreover, if the statement made by accused under Section 313
Cr.P.C is perused, he nowhere stated that DW-1, Sant Ram and
DW-2, Vijay Pal were present on the spot at the time of alleged
incident and as such, courts below rightly proceeded to conclude
that presence of aforesaid defence witnesses, namely Sant Ram
and Vijay Pal, on the spot is doubtful. Moreover, DW-1 Sant Ram
and DW-2 Vijay Pal deposed that complainant had given beating to
the accused with the help of scale, but such version of them is not
supported by any of the persons present on the spot. Medical
evidence adduced on record clearly reveals that in the alleged
incident, complainant suffered simple injuries. PW-8, Dr. Sneh Lata,
who had an occasion to conduct medical examination, while proving
MLC Ext.PW-8/B, categorically deposed that she had noticed
abrasions on the person of the accused, which could be caused in a
scuffle. She also stated that she noticed lacerated wound on the ring
finger of right hand and a`brasions on the right arm of the
.
complainant which clearly corroborates the version of the
complainant that he was injured by the accused.
13. Consequently, in view of the detailed discussion made
hereinabove, this Court finds no illegality and infirmity in the
judgment of conviction and order of sentence recorded by courts
below and as such, same are upheld. However, having taken note
of the fact that alleged incident had taken place 19 years back and
during this period, criminal case remained pending against
petitioner/accused and as such, there appears to be merit in the
claim of learned counsel representing the petitioner that petitioner
has already undergone trauma of pendency of criminal case against
him. Besides above, this Court also finds that at the time of alleged
incident, petitioner was young and during the pendency of criminal
proceedings against him, he has turned 57 years old; and in case,
at this stage, he is sent behind bars, he is not only the person, who
would suffer, rather his entire family would suffer and as such, it is a
fit case where benefit of Section 4 of the Probation of Offenders Act,
can be extended. Reliance is placed upon Hon'ble Apex Court
judgment Ramesh Kumar @ Babla versus State of Punjab 2016
AIR (SC) 2858, wherein it has been held as under:
"7. Accordingly the appeal is allowed in part
by converting appellant's conviction under
Section 307 IPC to one under Section 324 IPC.
On the question of sentence, it is pertinent to
note that the occurrence took place in 1997. In
his statement under Section 313 of the code
of Criminal Procedure the appellant gave his
.
age in 2002 as 36 years. He claimed that he
and others went to the place of occurrence on
getting information that his brother Sanjay
Kumar was assaulted by Ramesh Kumar
(Complainant). He brought his brother to
Police Station and lodged a report. As noticed
by trial court, parties are involved in civil as
well as criminal litigation from before. High
Court has noted that appellant, as per custody
certificate, is not involved in any other case.
In such circumstances, it is not deemed
necessary to send the appellant immediately
to Jail custody after about 19 years of the
occurrence when he appears to be 50 years of
r age and fully settled in life.
8. In view of aforesaid, in our view the ends of
justice would be met by granting benefit of
Probation of Offenders Act to the appellant.
We order accordingly and direct that the
appellant be released on executing
appropriate bond before the trial court to
appear and receive sentence of rigorous
imprisonment for 1 (one) year when called
upon to do so and in the meantime to keep the
peace and be of good behaviour."
14. The reliance is also placed upon Hon'ble Apex Court
judgment Hari Kishan and State of Haryana versus Sukhbir
Singh 1988 AIR (SC) 2127, wherein it has been held as under:
"8. The question next to be considered is
whether the accused are entitled to the benefit
of probation of good conduct? We gave our
anxious consideration to the contentions
urged by counsel. We are of opinion that the
High Court has not committed any error in
this regard also. Many offenders are not
dangerous criminals but are weak characters
or who have surrendered to temptation or
provocation. In placing such type of
offenders, on probation, the Court encourages
their own sense of responsibility for their
future and protect them from the stigma and
possible contamination of prison. In this case,
.
the High Court has observed that there was
no previous history of enmity between the
parties and the occurrence was an outcome of
a sudden flare up. These are not showing to
be incorrect. We have already said that the
accused had no intention to commit murder of
any person. Therefore, the extension of
benefit of the beneficial legislation applicable
to the first offenders cannot be said to be
inappropriate.
9. This takes us to, the third questions which
we have formulated earlier in this judgments.
The High Court has directed each of the
respondents to pay Rs.2500/-
compensation to Joginder. The High Court
as
has not referred to any provision of law in
support of the order of compensation. But
that can be traced to section 357 Criminal
Procedure Code Section 357, leaving aside
the unnecessary, provides:-
"357. Order to pay compensation:
(1) When a court imposes a sentence of fine
or a sentence (including a sentence of death)
of which fine forms a part, the Court may,
when passing judgment, order the whole or
any part of the fine recovered to be applied-
(a) in defraying the expenses properly
incurred in the prosecution;
(b) in the payment to any person of
compensation for any loss or injury caused by
the offence, when compensation is in the
opinion of the Court, recoverable by such
person in a civil Court;
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(3) When a Court imposes a sentence, of
which fine does not form a part, the Court
may, when passing judgment, order the
accused person to pay, by way of
compensation. Such amount as may be
specified in the order to the person who has
suffered any loss or injury by reason of the
act for which the accused person has been
.
sentenced.
(4) An order under this section may also be
made by an Appellate Court or by the High
Court or Court of Session when exercising its
power of revision.
(5) At the time of awarding compensation in
any subsequent civil suit relating to the same
matter, the Court shall take into account any
sum paid or recovered as compensation
under this Section.
11. The payment by way of compensation
r must, however, be reasonable. What is
reasonable, may depend upon the facts and
circumstances of each case. The quantum of
compensation may be determined by taking
into account the nature of crime, the justness
of claim by the victim and the ability of
accused to pay. If there are more than one
accused they may be asked to pay in equal
terms unless their capacity to pay varies
considerably. The payment also vary
depending upon the acts of each accused.
Reasonable period for payment of
compensation, if necessary by installments,
may also be given. The Court may enforce the
order by imposing sentence in default."
15. In view of the aforesaid law as well as submissions
having been made by Mr. Vijay Verma, learned counsel appearing
on behalf of the accused and after taking into consideration the facts
and circumstances of the present case, I am of the considered
opinion that the present petitioner/accused can be granted benefit of
Section 4 of the Probation of Offenders Act, 1958 subject to
payment of adequate compensation which would be determined
after the receipt of the report of Probation Officer.
.
16. Accordingly, Registry is directed to call for the report of
the Probation Officer, Mandi, District Mandi, H.P. on or before
07.01.2022. Registry to list this matter on 07.01.2022.
30th November, 2021 (Sandeep Sharma)
(reena) Judge
