IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 51 of 2005. Judgment reserved on :14.11.2011 Date of decision: 20.12.2011 Rajesh Kumar alias Sanju S/o Sh. Shyam Lal, R/oVillage Balsihna, Tehsil Ghumarwin, Distt. Bilaspur, H.P. ….. Petitioner. Vs. State of Himachal Pradesh …. Respondent. Criminal Revision under Section 397, 401 read with Section 482 of the Code of Criminal Procedure for setting aside the judgment dated 29.11.2004 passed by the Ld. Additional Sessions Judge, Ghumarwin, Distt Bilaspur(HP) in criminal appeal No.19/10 of 2004/2003 confirming the judgment dated 24.7.2003 passed by the Ld. Chief Judicial Magistrate, Bilaspur (Camp at Ghumarwin) Distt- Bilaspur in case No.26-1 of 1999/1997. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner : Mr. J.R. Poswal, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. Advocate General. Kuldip Singh, J. This revision is directed against the judgment dated 29.11.2004 passed by learned Addl. Sessions Judge, Ghumarwin, in Cr. Appeal No.19/10 of 2004/2003, affirming judgment dated 24.7.2003 passed by learned Chief Judicial Magistrate, Bilaspur (Camp at Ghumarwin) in case No. 26-1 of 1999/1997, convicting the petitioner under Section 323 IPC and sentencing him to undergo Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… imprisonment till the rising of the Court and to pay a fine of ` Rs.1000/- and fine of ` 3000/- for commission of offence under Section 325 IPC. Out of the fine amount, `3000/- shall be paid to the complainant as compensation. In default of payment of fine the convict shall undergo simple imprisonment for a period of one month each for each offence under Sections 323 and 325 IPC. 2. The prosecution case in brief is that on 27.4.1997 at about 4.30 p.m. PW-1 Sher Singh complainant was sitting in his field at Balsihna, his wife Smt. Bimla Devi, sister-in-law, PW-3 Smt. Parmila Devi, sons PW-2 Vinod Kumar and Parmod Kumar were harvesting wheat crop in the fields. In the meantime, petitioner came from behind armed with danda and gave blow on back and left arm of Sher Singh causing fracture. He raised hue and cry, Smt. Bimla Devi, Smt. Parmila Devi, Vinod and Parmod came to his rescue. The occurrence was reported to Paras Ram, Pritam Singh and Prem Singh etc. 3. The complaint was lodged with the police vide Ex.PW-8/A and thereupon FIR Ex.PW-7/A was registered. The injured was got medically examined vide MLC Ex.PW-10/A. The site plan Ex.PW-9/A was prepared, ‘danda’ Ex.P-1 was taken into possession. On completion of investigation, challan was submitted in the Court. The petitioner was charged for offences punishable under Sections 323, 325 and 506 IPC. The petitioner denied the charge and claimed trial. 4. The prosecution has examined 11 witnesses and produced some documents. The statement of petitioner was …3… recorded under Section 313 Cr.P.C. He pleaded his innocence. He has stated that complainant, his family members have falsely implicated the petitioner in the case because of litigation. He did not lead any evidence in defence. On conclusion of trial learned Chief Judicial Magistrate convicted and sentenced the petitioner as noticed above. The learned Addl. Sessions Judge dismissed the appeal, hence revision. 5. I have heard the learned counsel for the petitioner and learned Addl. Advocate General for the respondent and have also gone through the record. PW-1 Sher Singh has stated that on 27.4.1997 at 4 p.m. he was sitting on the side of his field. His wife Bimla, siser-in-law Parmila, son Vinod and Parmod were harvesting wheat crop. The petitioner came from behind and gave one ‘danda’ blow on his head and second blow on his arm and ran away. He reported the matter to the police. ‘Danda’ Ex.P-1 was taken into possession from petitioner. In cross examination he has stated that petitioner came on the spot all alone but his family members were also nearby. He saw the petitioner from front side when he gave ‘danda’ blow. He has litigation with the family of the petitioner since the year 1997. 6. PW-2 Vinod has stated that on 27.4.1997 at about 4.30 p.m. his father Sher Singh was sitting on the side of the field. Parmila, his mother were cutting the crop. The petitioner came there, he gave ‘danda’ blow on the head and arm of his father and ran away. Ex.P-1 is ‘danda’. In cross-examination he has stated that houses of Prabu Ram, Durga and Shyam Lal are near the place of …4… occurrence. Paras Ram came on the spot later on. He had seen the petitioner when his father raised hue and cry. 7. PW-3 Parmila Devi has stated that on 27.4.1997 at about 4.30 p.m. she was working in the field, the petitioner gave ‘danda’ blow on the back side of the head near neck of Sher Singh. He also gave one blow on the arm of Sher Singh which got fractured. In cross-examination she has stated that there are two houses near the place of occurrence. The two persons were passing through the path at the time of occurrence, one was Mansha of the same village. The mother and sister of petitioner were with him at that time and all of them quarreled. The mother and sister of the petitioner were hurling abuses. ‘Danda’ was of bamboo which is Ex.P-1. She admitted that ‘danda’ Ex.P-1 is not of bamboo, she volunteered that she had seen the beatings with this ‘danda’. 8. PW-4 Prem Singh has stated that on 27.4.1997 Parmila came to his house and told that petitioner had given beatings to Sher Singh with ‘danda’. On this, he went to the spot. PW-5 Janu Ram has stated that on 27.4.1997 he and Banta Ram had gone to Jajri for purchasing ox. Sher Singh was sitting on the side of his field. The petitioner gave ‘danda’ blow on the back of Sher Singh and another blow on the arm, as a result of which he got fracture in the arm. The petitioner also gave threats to him. In cross-examination he has stated that he and Mansha Ram were sitting with Sher Singh for the last 15/20 minutes before the occurrence. Sher Singh had altercation with petitioner for 5/10 minutes. …5… 9. PW-6 Dr. N.K. Sankhyan has stated that on the basis of X-ray Ex.PW-6/A, films Ex.PW-6/B and Ex.PW-6/C of Sher Singh he found there was evidence of fracture. He gave opinion Ex.PW-6/D. In cross-examination he has stated that he had not medically examined the injured. The fractures present in the X-ray films can also be sustained due to fall. PW-7 Inspector Hari Ram has proved FIR Ex.PW-7/A. PW-9 Shanker Singh ASI is the Investigating Officer. 10. PW-10 Dr. Bishan Dhiman has proved MLC Ex.PW-10/A of the injured Sher Singh. In cross-examination he has stated that no other injury was noted on the body except injuries No.1 and 2. There was no injury marks on head. Such type of injures can be caused due to fall from a height on hard surface. The petitioner in his statement under Section 313 Cr.P.C. has pleaded that he is innocent. He has stated that a criminal case is pending against Sher Singh family and therefore, he has been implicated in the case falsely. 11. PW-1 has stated petitioner came on the spot all alone. He gave ‘danda’ blow on his head and arm. PW-2 Vinod has also stated that petitioner had given ‘danda’ blows on the head and arm of his father. PW-3 Parmila Devi has stated that petitioner gave ‘danda’ blows on the head and arm of Sher Singh. PW-3 has contradicted PW-1 when she has stated that mother, sister of petitioner and petitioner were quarreling. The mother and sister of the petitioner were hurling abuses. PW-1 has not named that mother and sister of the petitioner quarreled with him and hurled abuses. PW-3 has stated that ‘danda’ which was used by petitioner was of bamboo but …6… Ex.P-1 ‘danda’ is not of bamboo. PW-4 is not an eye witness. It is clear from his statement that he came on the spot later on. 12. PW-5 has contradicted PW-1 when he has stated that petitioner gave ‘danda’ blow on the back. PW-1 has stated that petitioner gave first blow on his head and second blow on his arm. PW-5 has stated that he and Mansha Ram were sitting with Sher Singh 15/20 minutes prior to the occurrence but this has not been stated by any other witness. PW-5 has further contradicted other witnesses when he has stated that Sher Singh had altercation with petitioner for 5/10 minutes. No other PW has stated that petitioner had given threats to PW-5. On the contrary PW-1 has stated that petitioner came, gave ‘danda’ blow and ran away. PW-6 Dr. N.K. Sankhyan and PW-10 Dr. Bishan Dhiman have stated that injuries shown in X-ray films and MLC can be caused by fall. PW-10 has stated that there was no injury marks on head. This belies ocular statement of the prosecution witnesses that petitioner had given ‘danda’ blow on the head of the complainant. 13. The alleged occurrence took place on 27.4.1997. It has come in evidence that since the year 1996/97 two families are in litigation. The complainant party was involved in criminal case regarding the injuries sustained by the sister of the petitioner. The two Courts below have not properly appreciated the evidence on record. It has been submitted on behalf of the respondent that in revision the scope is very limited, the evidence cannot be re- appreciated. 14. In Krishnan and another vs. Krishnaveni and another (1997) 4 SCC 241 it has been held that the object of Section …7… 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. The High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397 (1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. 15. The evidence led by the prosecution in the case has been considered in order to test the legality and propriety of the conviction and sentence recorded by learned trial Court and upheld by learned appellate Court. The version given by the complainant has not been supported by the other witnesses. The statements of material prosecution witnesses indicate that prosecution story suffers from contradictions which go to the root of the case. The parties are already in litigation. The medical evidence is not wholly in consonance with ocular evidence. The two Courts below have misconstrued and misinterpreted the evidence on record and erred in convicting and sentencing the petitioner. In view of evidence discussed above, the conviction and sentence of the petitioner is not sustainable. …8… 16. The result of above discussion, revision is allowed. The conviction and sentence of the petitioner under Sections 323 and 325 IPC recorded by two Courts below are set aside, the petitioner is acquitted of the charge. The fine amount, if any deposited by the petitioner be refunded to the petitioner. The bail bonds of the petitioner are discharged. December 20, 2011 ( Kuldip Singh ) (sks) Judge.