Himachal Pradesh High Court

Ranjeet Singh Alias Pappi vs State Of H.P on 16 September, 2024

Neutral Citation No. ( 2024:HHC:8552 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 67 of 2013

Reserved on: 14.08.2024

Date of Decision: 16.09.2024

Ranjeet Singh alias Pappi ...Petitioner

Versus

State of H.P.

Coram r to ...Respondent

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes

For the Petitioner : Mr. N.S. Chandel, Senior Advocate with M/s Vinod Kumar Gupta and Kishitiz, Advocate.

For the Respondent : Mr. Jitender Sharma, Additional Advocate General.

Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 22.02.2013, passed in Criminal Appeal No. 46-K/X of 2008

by learned Sessions Judge, Kangra at Dharamshala (learned

Appellate Court) vide which the judgment dated 25.08.2008 and

order of sentence dated 26.08.2008 passed by learned Judicial

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Neutral Citation No. ( 2024:HHC:8552 )

Magistrate First Class- II Kangra (learned trial Court) were

affirmed. (Parties shall hereinafter be referred to in the same

manner as they were arrayed before the learned Trial Court for

convenience).

2. Briefly stated, the facts giving rise to the present

revision are that the police presented a challan before the learned

Trial Court for the commission of an offence punishable under

Section 325 of the Indian Penal Code (IPC). It was asserted that

the informant/victim- Ms Leela Devi (PW1) was present in her

home on 03.04.2022 at about 10:00 PM. The accused came

outside her home and started abusing her. She asked the accused

not to abuse her. The accused gave her a fist blow due to which

her tooth was broken. She shouted for help. Kanta Devi (PW2),

Surinder Kumar and Mehar Chand (PW4) came to the spot and

rescued the informant/victim from the accused. The matter was

reported to the police and an entry (Ex-PW5/A) was recorded in

the police station. An application was filed for conducting the

medical examination of the victim/informant. Dr S. B. Sood

(PW3) conducted the medical examination of the victim and

found that she had suffered a grievous injury within 24 hours of

examination which could have been caused by means of a blunt-

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edged weapon. The police registered the FIR (Ex-PX), after the

receipt of the medical opinion. ASI Kaur Chand (PW9) conducted

the investigation. He visited the spot and prepared the site plan

(Ex-PW9/A). He seized the broken tooth and deposited it with

MHC Karan Paul (PW8), who deposited it in the malkhana. The

statements of the remaining witnesses were recorded as per their

version and after the completion of the investigation, a challan

was prepared and presented before the Court.

3. The accused was charged with the commission of an

offence punishable under Section 325 of IPC. He pleaded not

guilty and claimed to be tried.

4. The prosecution examined 9 witnesses to prove its

case. Leela Devi (PW1) is the informant/victim. Kanta Devi (PW2)

and Mehar Chand (PW4) are the eyewitnesses. Dr S.B. Sood (PW3)

conducted the medical examination of the informant/victim. HC

Rakesh Kumar (PW5) proved the entry in the daily diary. Piar

Chand (PW6) took the x-ray of the informant/victim. Constable

Sunil Kumar (PW7) accompanied the victim for her medical

examination. HC Karan Paul (PW8) was working as MHC with

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whom the case property was deposited. ASI Kaur Chand (PW9)

conducted the investigation.

5. The accused in his statement recorded under Section

313 of Cr.PC denied the prosecution case in its entirety. He stated

that the witnesses deposed falsely against him. He was innocent

and was falsely implicated. He stated that he wanted to lead the

defence evidence but led no evidence.

6. The learned Trial Court held that the testimony of the

victim was duly corroborated by the medical evidence. The mere

pendency of the civil dispute was not sufficient to discard the

prosecution case because enmity is a double-edged weapon. The

defence version that the informant/victim had sustained an

injury by way of a fall was not believable, because the victim did

not sustain any other injury. Hence, the accused was convicted of

the commission of an offence punishable under Section 325 of

IPC and was sentenced to undergo simple imprisonment for one

year and to pay a fine of ₹ 1,000/- and in default of payment of

the fine to further undergo simple imprisonment for two

months.

Neutral Citation No. ( 2024:HHC:8552 )

7. Being aggrieved from the judgment and order passed

by the learned Trial Court, the accused filed an appeal which was

decided by the learned Sessions Judge, Kangra (learned Appellate

Court). The learned Appellate Court concurred with findings

recorded by the learned Trial Court, that the testimony of the

victim was credible and was duly corroborated by the medical

evidence. Hence, the appeal was dismissed.

8. Being aggrieved from the judgments and order passed

by the learned Courts below, the accused has filed the present

revision asserting that the learned Courts below erred in

appreciating the evidence. The version of the informant/victim

was not corroborated by her husband Mehar Chand (PW4) and

her sister-in-law Kanta Devi (PW2). The Dental Surgeon was not

examined, in the absence of whom the nature of the injury was

not proved to be grievous. The accused was residing 10 KM away

from the house of the victim and he had no justification to be

present outside the informant's home at 10 pm. There was a

delay in reporting the matter to the police. The benefit of the

Probation of Offenders Act should have been granted to the

accused and the learned Trial Court erred in denying such

benefits. Therefore, it was prayed that the present revision be

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allowed and the judgments and order passed by the learned

Courts below be set aside.

9. I have heard Mr. N.S. Chandel learned Senior Counsel

assisted by M/s Vinod Kumar Gupta and Kishitiz, learned counsel

for the petitioner and Mr Jitender Sharma, learned Additional

Advocate General, for the respondent-State.

10.

Mr. N.S. Chandel, learned Senior Counsel for the

petitioner submitted that the testimony of the informant/victim

was not corroborated by her husband Mehar Chand (PW4) and

Kanta Devi (PW2). There was a delay in reporting the matter to

the police. The Dental Surgeon who had examined the

informant/victim was not examined in the Court. There was no

evidence that the injury was grievous and could have been caused

in a manner suggested by the prosecution. Therefore, he prayed

that the present revision be allowed and the judgments and order

passed by the learned Courts below be set aside.

11. Mr. Jitender Sharma, learned Additional Advocate

General for the respondent/State supported the judgments and

order passed by the learned Courts below and submitted that no

Neutral Citation No. ( 2024:HHC:8552 )

interference is required with them. He prayed that the present

petition be dismissed.

12. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

13. It was laid down by the Hon'ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional

court is not an appellate jurisdiction and it can only rectify the

Patent defect, errors of jurisdiction or the law. It was observed on

page 207:

"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a

detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against

conviction is not supposed to exercise the jurisdiction like to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal

Procedure Code (in short "CrPC") vests jurisdiction to satisfy 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 a well-founded error which is to be determined on the merits of individual cases. 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.

Neutral Citation No. ( 2024:HHC:8552 )

14. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was

observed:

"13. The power and jurisdiction of the Higher Court under

Section 397 Cr. P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The

object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh

Chandra, (2012) 9 SCC 460 where the scope of Section 397

has been considered and succinctly explained as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the

legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law.

There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders,

which upon the face of it bear a token of careful consideration and appear to be in accordance with the

law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

Neutral Citation No. ( 2024:HHC:8552 )

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of

.

the inbuilt restrictions is that it should not be against

an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the

Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction

unless the case substantially falls within the categories aforestated. Even framing of charge is a much- advanced stage in the proceedings under the CrPC."

15. A similar view was taken in Amit Kapoor v. Ramesh

Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC

(Cri) 986: 2012 SCC OnLine SC 724 wherein it was observed:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and

regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an

error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to

scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

Neutral Citation No. ( 2024:HHC:8552 )

16. The present revision has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

17. The matter was reported to the police and an entry

(Ex-PW5/A) was recorded at 01:00 am; thus, the matter was

reported to the police within three hours of the incident and it

cannot be said that there was undue delay in reporting the matter

to the police. Hence, the submission that there was a delay in

reporting the matter to the police and the prosecution case has to

be rejected due to the delay cannot be accepted.

18. Informant/victim Leela Devi (PW1) stated that about

two years before the date of deposition at about 10:00 PM in

April, the accused was abusing her. She asked him not to abuse

her. The accused inflicted a blow on her face due to which her

tooth was broken and she became unconscious. She reported the

matter to the police. She stated in her cross-examination that the

accused is her nephew and he is residing at Madhal. It was dark at

the time of the incident. Kanta Devi (PW2) is her sister-in-law

who resides with her. Up-Pradhan- Pratap Chand also came to

the spot, they went to the police station on 03 April, at 12-1 AM.

She denied that she had fallen from the retaining wall.

Neutral Citation No. ( 2024:HHC:8552 )

19. Kanta Devi (PW2) stated that she heard some noise

and came out but the incident was over. She was permitted to be

cross-examined. She denied that the accused had inflicted a fist

blow to the informant in her presence. She denied the previous

statement recorded by the police. She had seen the broken tooth

of the informant/victim. She stated in her cross-examination by

the learned counsel for the defence that the victim was her

sister-in-law. The accused was residing at Chakban Saleta at a

distance of 4-5 KM from Madhal.

20. Mehar Singh (PW4), the husband of the victim stated

that two years before the date of deposition, he was sleeping. He

heard some noise and saw that the accused had beaten the

informant/victim. The tooth of the informant/victim was

damaged. He intervened. He stated in his cross-examination by

the learned counsel for the defence that he did not know how the

tooth was broken. The tooth was not broken in his presence.

21. This is the entire evidence led by the prosecution. It is

apparent from the evidence that Kanta Devi (PW2) and Mehar

Chand (PW4) have not supported the prosecution case that the

accused had inflicted a blow on the face of the informant/victim

Neutral Citation No. ( 2024:HHC:8552 )

in their presence due to which her tooth was broken. Kanta Devi

(PW2) stated that the incident was over at the time of her arrival

on the spot and she could not know with whom the quarrel had

taken place. Thus, she has not supported the prosecution's

version that the accused had inflicted injury to the

informant/victim in her presence. Mehar Chand (PW4), the

husband of the victim also did not say that the tooth was broken

in his presence. He stated in his cross-examination that he could

not know how the tooth was broken. Mehar Chand (PW4) further

stated that he saw the accused beating the informant/victim and

he had intervened in the matter. This fact was not stated by Leela

Devi (PW1) who stated that she became unconscious and could

not know who had rescued her. Therefore, his version regarding

the intervention in the scuffle is not corroborated by the victim.

Mehar Chand nowhere stated that the informant/victim became

unconscious and he has not corroborated her to this extent.

22. Dr. S.B. Sood (PW3) referred the patient to a Dental

Surgeon and as per the opinion of the Dental Surgeon, the Right

Upper Central Incisors were broken. Hence, the injury was

grievous and the weapon of offence was blunt. He identified the

signatures of the Dental Surgeon.

Neutral Citation No. ( 2024:HHC:8552 )

23. It is apparent from his statement that he has given his

opinion based on the report issued by the Dental Surgeon. The

prosecution has not examined the Dental Surgeon who was the

best witness to prove the nature of the injury and the manner of

its infliction. Dr S.B. Sood has also not stated that the injury could

have been caused by a fist blow and only stated that the injury

could have been caused by a blunt weapon. Hence, his testimony

does not support the informant/victim's version that the injury

could have been caused by a fist blow.

24. The learned Trial Court was swayed by the fact that

the testimony of the informant/victim was corroborated by the

medical evidence. However, it was not considered that the

statement of the Dental Surgeon was not recorded and the

Medical Officer had also not stated that the injury could have

been caused by a fist blow. Learned Trial Court also failed to

consider the fact that Kanta Devi (PW2) did not support the

prosecution case and Mehar Chand (PW4) did not support the

prosecution case regarding the fact that the injury was caused in

his presence.

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25. It was laid down by the Hon'ble Supreme Court in

Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 :

.

(2019) 2 SCC (Cri) 300: 2019 SCC OnLine SC 316 that the

prosecution cannot discharge the burden to prove its case by

strong suspicion and it has to prove its case beyond a reasonable

doubt. It was observed at page 527:

"14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general

burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever

grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to

very strong suspicion and the existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the

prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an

additional circumstance, if other circumstances unfailingly point to the guilt.

17. In Varkey Joseph v. State of Kerala [Varkey Joseph v. State

of Kerala, 1993 Supp (3) SCC 745: 1993 SCC (Cri) 1117], this Court has held that suspicion is not the substitute for proof. There is a long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove its case beyond reasonable doubt.

18. In Sujit Biswas v. State of Assam [Sujit Biswas v. State of Assam, (2013) 12 SCC 406: (2014) 1 SCC (Cri) 677], this Court, while examining the distinction between "proof beyond reasonable doubt" and "suspicion" has held as under: (SCC p. 412, para 13)

Neutral Citation No. ( 2024:HHC:8552 )

"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "maybe" proved and

.

something that "will be proved". In a criminal trial,

suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "maybe" and

"must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicions do not take the place of legal proof. The large distance

between "maybe" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before an accused is condemned as a convict, and the basic and

golden rule must be applied. In such cases, while

keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of

dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the

evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts

and circumstances of a case so demand, then the benefit of the doubt must be given to the accused, keeping in mind that a reasonable doubt is not an

imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

26. In the present case, the prosecution has failed to

cover the distance between suspicion and proof beyond

reasonable doubt and learned Courts below erred in holding that

the prosecution had proved its case beyond reasonable doubt.

Neutral Citation No. ( 2024:HHC:8552 )

27. In view of the above, the present revision is allowed

and the judgments and order passed by the learned Courts below

are ordered to be set aside. The accused is acquitted of the

commission of an offence punishable under Section 325 of IPC.

The fine be refunded to the accused after the expiry of the period

of limitation in case no appeal is preferred and in case of appeal,

if any, as per the orders of the Hon'ble Supreme Court. The