Bhagwandas Rajput vs The State Of Madhya Pradesh
2023 Latest Caselaw 14436 MP

                                        1                            Cr.R. No. 2114/2023


       IN THE HIGH COURT OF MADHYA PRADESH
                  ATJABALPU R
                                    BEFORE
                  JUSTICE ACHAL KUMAR PALIWAL

                CRIMINAL REVISION No. 2114 OF 2023

BETWEEN:-

BHAGWANDAS RAJPUT S/O SHRI RAMDAYAL
RAJPUT, AGED ABOUT 35 YEARS, OCCUPATION:
AGRICULTURE R/O GRAM RAMPURA POLICE
STATION KUDILA DISTRICT TIKAMGARH (MADHYA
PRADESH)


                                                                   .....PETITIONER

(BY SHRI JAGDISH PRASAD SINGROL- ADVOCATE)

AND

THE STATE OF MADHYA PRADESH THROUGH
STATION HOUSE OFFICER POLICE STATION KUDILA
DISTRICT TIKAMGARH (MADHYA PRADESH)

                                                                 .... RESPONDENT

(BY  SHRI HARSH GUPTA - PANEL LAWYER AND SHRI
DHARMENDRA PATEL- ADVOCATE FOR OBJECTOR)
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Reserved on            :        23.08.2023
Pronounced on         :         04.09.2023
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       This criminal revision having been heard and reserved for order,
coming on for pronouncement this day, Justice Achal Kumar Paliwal
pronounced the following:
                                   2                        Cr.R. No. 2114/2023


                              ORDER

This criminal revision under Section 397/401 of Cr.PC. has been preferred against the judgment dated 08.05.2023 passed by learned 5th Additional Sessions Judge, Tikamgarh, in Criminal Appeal No.58/2022 (Bhagwandas Rajput Vs. State of MP), whereby judgment dated 10.03.2022, passed by the learned JMFC in Criminal Case No.1501415/2015 convicting the petitioner for commission of offence under Section 456 and 354 of IPC and awarding him sentence of six months and one year RI respectively and fine of Rs.500/- for each offence with default stipulation, has been affirmed.

2. Brief facts relevant for the disposal of present revision are that prosecutrix lodged a written report against the petitioner on 07.08.2015 to the effect that on 06.08.2015 at about 9:30 pm, her husband and village's Chhotu Rajput were having food inside her house and she was serving them. To serve them water, she went to Jaldhara situated inside the house. Her village's Bhagwandas Lodhi was already there and he clung to the prosecutrix. When she screamed, her husband and Chhotu came, thereupon, Bhagwandas Lodhi left her and ran away from there. On account of being night, she could not come to report the matter yesterday. After investigation, charge sheet was filed against the petitioner under Section 354 and 456 of IPC.

3. Learned trial Court vide judgment dated 10.03.2022 passed in Case No. 1501415/2015 (State of MP Vs. Bhagwandas), after evaluation of evidence, found petitioner to have committed offence under Section 456 and 354 of IPC and sentenced him to undergo six months and one year RI respectively and fine of Rs. 500/- in each

offence with default stipulation. Against the above judgment, petitioner filed an appeal and learned appellate Court, vide judgment dated 08.05.2023 passed in Cr.A. No. 58/2022, dismissed the appeal of petitioner and affirmed the trial Court's judgment with respect to conviction and sentence. Against this, petitioner has preferred present revision.

4. I have heard both the parties and perused the record of the case. Scope of Revision u/s 397 & 401 of CrPC:-

5. Before analyzing the facts of the case on merits, it would be appropriate to examine the scope & ambit of criminal revision/powers of court u/s 397 & 401 of CrPC. In this connection, I would like to refer decisions of Hon'ble apex court in State Vs. R. Soundirarasu , AIR 2022 SC 4218, State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659 & Duli Chand v. Delhi Administration, (1975) 4 SCC 649 (3-Judge Bench).

6. In Duli Chand (supra),Hon'ble apex court has held as under:-

"5.........The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse. ....."

7. In R. Soundirarasu (supra),Hon'ble apex court has held as under:-

"75. In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC 631: (AIR 2002 SC 107: 2002 cri LJ 225 (SC)), this Court held as under:-

"3.....The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."

76. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure."

8. In Jagmohan Singh Kuldip Singh Anand (supra), Hon'ble apex court has held as under:-

"21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 Cr.P.C. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party, i.e. Criminal Appeal No. 523 of 1997 decided on 9.3.2004 [Ram Briksh v. Ambika Yadav]. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.

22.The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 Cr.P.C. Section 401

Cr.P.C. is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, 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 proceeding of such inferior court."

It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C., read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."

Findings:-

9. Now, I will examine the submissions of learned counsel of the parties, grounds taken by the petitioner in the revision petition & evidence/facts of the case in the light of above legal position.

10. Submissions of learned counsel for the petitioner and grounds taken by the petitioner in the revision petition show that petitioner has challenged appellate Court's judgment mainly on the ground that the prosecution witnesses are interested witnesses and no independent witness has supported the prosecution story and there are material contradictions, omissions and discrepancies between prosecution witnesses' Court testimony and their statements recorded under Section 161 of Cr.P.C.

11. Perusal of testimonies of prosecutrix (PW-1), Pushpendra Lodhi (PW-2), Surendra (PW-3) reveal that they have been extensively cross- examined on behalf of the petitioner but in their cross-examination, nothing has come out which would show that they are not reliable

witnesses. Further, perusal of testimonies of above witnesses reveal that there are no material contradictions, omissions and discrepancies between their court testimonies & statements recorded under Section 161 of Cr.P.C.

12. Further, in the instant case, incident occurred on 06.08.2015, at about 9:30 pm and report Ex. P/1 has been lodged on the next day in the morning at 10:00 am. From FIR Ex.-P2, it is clear that scene of incident is situated at about 8 KM from police station, therefore, it cannot be said that report has been lodged belatedly. Further, there are no contradictions, omissions and discrepancies between prosecutrix's Court statement and her report Ex. P/1. Therefore, report (Ex. P/1), which has been lodged without any delay, also corroborates the prosecutrix's testimony. In the present case, the incident took place inside the house & it is not established from the evidence on record that any other person was also present inside the house/any other person has also witnessed the incident. Hence, it can not be said that prosecution has deliberately withheld any witness & did not examine him.

13. So far as false implication and defence of petitioner is concerned, perusal of cross-examination of prosecutrix (PW-1), Pushpendra Lodhi (PW-2) and Surendra (PW-3) and petitioner's examination under Section 313 of Cr.P.C. and report Ex.D-2C reveal that petitioner had given contradictory suggestions to above prosecution witnesses in their cross-examination as to why petitioner has been falsely implicated and why complainant party had beaten petitioner on the date of incident. Prosecutrix (PW-1), Pushpendra

Lodhi (PW-2) and Surendra (PW-3) have denied that on 06.08.2015 at about 8/8:30 pm, they had beaten petitioner/accused. Prosecutrix (PW-

1) has denied that on account of land dispute, they had beaten the petitioner accused but no such suggestion has been given to prosecutrix's husband Pushpendra Lodhi and father-in-law Ramsewak as to why they had beaten petitioner/accused on the date of incident. Petitioner/accused has also not clarified in his examination under Section 313 of Cr.P.C. as to why prosecutrix, her husband and family members had beaten petitioner on the date of incident.

14. Contrary to suggestion given to prosecutrix as above in her cross-examination, it is mentioned in petitioner/accused's report Ex. D-2C that on 06.08.2015 at about 8 pm, he (petitioner/accused) was going to his house from Heeralal Rajput's house and when he passed the house of Pushpendra Rajput, then, Pushpendra met him and told why did he caught hold his wife, at that time Pushpendra's father Ramsewak also came there and he told him that Pushpendra is making false allegation against him about catching his wife and in the meantime Pushpendra assaulted him with fists and kicks but in the report, it is nowhere mentioned that Prosecutrix and Ramsewak also assaulted petitioner/accused & that, they assaulted him on account of land dispute. Thus, in view of above, it is not proved that petitioner/accused has falsely been implicated in the instant case. Instead, petitioner/accused's report Ex. D-2C also corroborates prosecutrix's testimony.

15. Thus, in this Court's opinion, it cannot be said that learned Courts below have not taken any material/relevant evidence on record

while convicting and sentencing the petitioner. It cannot also be said that learned Courts below have taken into consideration any material evidence which should not have been taken into consideration. Learned counsel for the petitioner has failed to point out any material illegality and perversity in the findings of learned Courts below with respect to petitioner's conviction u/s 354 & 456 IPC. Hence, in this Court's opinion, there is no illegality and perversity in the findings recorded by the Courts below, therefore, learned Courts below has not committed any illegality in convicting petitioner under Sections 456 and 354 of IPC.

16. So far as sentence is concerned, learned counsel for the petitioner has submitted that parties have compromised the matter and this fact has also been verified but offences under which petitioner has been convicted are non-compoundable. Therefore, it has been urged by petitioner that petitioner is in jail since 08.05.2023 & he may be sentenced with the period already undergone by him.

17. In the instant case, petitioner has been convicted and sentenced under Section 456 for R.I. of 6 months and fine of Rs. 500/- with default stipulation and under Section 354 of IPC for R.I. of one year and fine of Rs. 500/- with default stipulation. It is apparent that learned Courts below have sentenced and imposed minimum sentence prescribed for offence Section 354 of IPC i.e one year R.I.. Therefore, sentence under Section 354 of IPC can not be reduced to the period already undergone by the petitioner but sentence under Section 456 of IPC can be modified and be ordered to be reduced to the period already undergone. Therefore, In view of above sentence imposed

under Section 456 of IPC is reduced to the period already undergone by the petitioner but sentence awarded under Section 354 of IPC being the minimum prescribed in law can not be reduced to the period already undergone by the petitioner and hence the same is maintained and affirmed.

18. Resultantly, this revision is partly allowed to the extent as indicated above.

19. A copy of this order be sent forthwith to learned trial court/ appellate court Tikamgarh, District Tikamgarh & concerned jail for information & necessary action.

20. Present revision petition is disposed off accordingly.

(ACHAL KUMAR PALIWAL) JUDGE L.R.

Digitally signed by LALIT SINGH RANA Date: 2023.09.05 10:42:03 +05'30'