1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 26 of 2002. Date of Decision: 25-2-2009. ____________________________________________________________ Sumit Jaswal and others. Petitioners. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the petitioners : Mr. Rakesh Jaswal, Advocate. For respondent : Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J (oral) In this revision petition, the petitioners have assailed the concurrent findings of guilt and sentence passed against them by the Courts below on the ground that the courts below did not appreciate the evidence on record in right manner and the medical certificate of the complainant was not proved in accordance with law, thus the injuries on the person of the complainant remained un-substantiated and his testimony is not worth inspiring confidence. I have heard the learned counsel for the parties and have carefully gone through the record of the courts below in order to find of any illegality or perversity therein. Precisely, the case of the prosecution against the petitioners has been that petitioners doubted the complainant Shri Munish Kaushik having removed the sweater and jacket of petitioner Sumit Jaswal from his shop. Thus on 1-12-1997, at about 7.00 P.M, when the complainant was present at Gunughat near the S.T.D. Booth, the petitioners came there and Whether reporters of the Local papers are allowed to see the judgment?. Yes. 2 told the complainant to accompany them to the house of Sumit Jaswal. He followed them. On reaching the house of Sumit Jaswal, he bolted the door of his room from inside and asked him as to why he had removed the sweater and the jacket from his shop. Thereafter the petitioners pounced upon him and dealt him with fist and kick blows for about 45 minutes, he was released from the alleged wrongful confinement. While leaving the place, the petitioner Nitin Chauhan threatened the complainant with dire consequences in case he would not return the articles of Sumit Jaswal. Regarding the above incident, immediately report Exhibit-PA was lodged by the complainant in the Police Post on the basis of which F.I.R. Exhibit PB was registered in Police Station, Nahan. The complainant was got medically examined. He was found having simple injuries, regarding this M.L.C. Exhibit PW5/B was obtained. The site plan Exhibit PA of the alleged incident was prepared by the Police and after recording the statements of the witnesses and on completing the challan, it was presented against the petitioners in the court for their trial. Notice of accusation was framed against each of the petitioners. They pleaded not guilty and claimed trial. Prosecution examined its witnesses to substantiate the allegations and the petitioners were also examined under Section 313 of the Code of Criminal Procedure. Their case was of denial simplicitor. However, they did not lead any evidence in defense and on the conclusion of the trial, each of the petitioners were convicted and sentenced by the learned trial Court under Section 147, 342, 323 and 506 read with Section 149 of the Indian Penal Code. Accordingly, each of them were sentenced to pay a fine of rupees 400/- each for each of the offence, i.e, rupees 1600/- by each of the accused and in default of payment of fine, the petitioners were ordered to under-go simple imprisonment for a period of one month and out of the fine amount, a sum of rupees 3000/- was ordered to be paid to the injured complainant Munish Kaushik as a compensation. 3 The petitioners felt aggrieved by the impugned judgment of conviction passed by the learned trial Court, thus filed an appeal No. 71/2 of 1998 before the learned Sessions Judge. After hearing the parties, learned Sessions Judge also did not find anything for up-setting the findings of guilt and after considering the report of the Probation Officer, he did not disturb the sentence passed on each of the petitioner for the reason that petitioner Sumit Jaswal was involved in four criminal cases, Tanuj Jaswal in three, Nitin Chauhan in two, Dhiraj in two and Parveen Thakur in three criminal cases, besides they all were convicted in criminal case pertaining to F.I.R. No. 230 of 1997 decided on 1-12-1997 registered against them in Police Station, Nahan under Section 147,323, 506 and 342 read with Section 149 of the Indian Penal Code. Petitioner Dhiraj was also convicted in case F.I.R. No. 167 of 1996. Finding the antecedents of the petitioners shady, they were not granted the benefit of Probation of Offenders Act. As such, the sentence passed by learned trial Court was up- held. Now the petitioners have assailed the impugned judgment of conviction and sentence before this Court by filing the present revision petition. The prosecution story was unfolded by the complainant (PW2) in clear and unambiguous terms that the petitioners met him at Gunu-Ghat near the STD Booth and on the pretext of some work, they told to follow them to the house of Sumit Jaswal accused. On reaching there, Sumit Jaswal imputed the allegations of committing theft of his sweater and jacket from his shop and bolted the door of his room from inside. Thereafter, petitioners started fisticuffing and giving kick blows to him for about 45 minutes. Petitioner Nitin told him that if he would not return the articles by the next day, he would not be left alive. Due to this manhandling, he sustained the injuries on his hands and legs. He pleaded that he had not committed any theft of any article as alleged. After getting relieved, he reported the matter to the Police vide Exhibit PA. Thereafter 4 he was got medically examined by Doctor Mohindru. During the trial of the case, he identified each of the petitioners in the Court. In cross- examination, he admitted that there were many shops in the surrounding near the P.C.O. He denied that he had pressurized the Police to lodge the F.I.R. against the petitioners through his aunt who was a B.J.P. worker. He stated that he had raised hue and cry when he was given thrashing by the petitioners but denied that he sustained the injuries by fall. He also denied that case regarding theft of scooter was registered against him. However, he has admitted an excise case against him. PW4 A.S.I Devi Singh and PW1 Constable Bhupinder Singh have proved the complaint Exhibit PA of Munish Kaushik on the basis of which F.I.R. Exhibit PB was registered. PW5 H.C. Vinay Kumar, Investigating Officer has stated that after the F.I.R, he applied for the medical examination of the complainant by moving the application Exhibit-PC and the medico legal certificate Exhibit PW5/B was issued by Dr. Mahindru (now dead). He also admitted that near the P.C.O., there were many shops and further that there was a common path in front of the house of petitioner Sumit Jaswal. He further stated that he had enquired from the surrounding vicinity about the said incident but no-body came forward. He specifically denied that the F.I.R. against the petitioners was registered under pressure. However, PW3 Pardeep Kumar did not dare to speak truth and resiled from his earlier version, may be due to the fear of the petitioners. Against the aforesaid evidence, learned counsel for the petitioners vehemently argued that the statement of the complainant was not corroborated by any independent witness. Even the M.L.C. was not proved in accordance with law and the testimony of the complainant did not inspire confidence, as such he could not have been believed. I have closely examined the statement of the complainant. I do not find it intrinsically un-believable to brush it aside. It is important to note that immediately after the incident, the complainant lodged the report Exhibit PA and he was got medically examined from Dr. Mahindru. The 5 M.L.C. shows minor injuries on his person. Dr. Mahindru could not be examined as he had died whereas, the Investigating Officer Vinay Kumar has clearly stated that the M.L.C. aforesaid was issued by Dr. Mahindru on his application, after the examination of the complainant, which reveals simple injuries on his person. Thus complainant’s case finds corroboration from the surrounding circumstances and is worth inspiring confidence and he also did not have any malice against the petitioners to implicate them in a false case. The another point canvassed by t he learned counsel for the petitioners is that no one from the vicinity was examined in order to substantiate the allegations of the complainant. For that matter, I would like to say that the petitioners are previous convicts in some of the cases as referred above. They have a shady character and that could be the reason of PW3 Pardeep Kumar not supporting the case of the prosecution under fear, as stated supra, and this could also be the reason that none came- forward to depose against the petitioners with respect to the alleged incident because of their terror. Otherwise also, on the close scrutiny of the statement of the complainant, I do not find that it was wrongly believed by the learned trial Court as also by the lower appellate Court. Further there is also no reason to frame the petitioners by exerting the political pressure upon the Police, in absence of any cogent material put- forth. Therefore, for the foregoing reasons, the concurrent findings of facts by the Courts below are correct and born out from the record, therefore requires no interference. Accordingly, the revision petition is dismissed. (Surinder Singh) Judge. February 25, 2009. (bm)