IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No. 107 of 2001 Date of decision: 06.6.2008 Bhajan Singh and another Petitioners Vs. State of H.P. Respondent Coram: The Hon’ble Mr. R.B.Misra, Judge. Whether approved for reporting? Yes For the Petitioners: Mr. R.K.Gautam, Senior Advocate, with Mr. Naveen Bhardwaj, Advocate For the Respondent : Mr. R.M. Bisht, Deputy Advocate General Per R.B.Misra, J. (Oral) The present revision petition has been preferred under Section 397 and 401 read with Section 482 of the Code of Criminal Procedure for setting aside the judgment and order dated 18.7.2001 passed by the learned Additional Sessions Judge, Solan, camp at Nalagarh, District Solan, H.P. in Criminal Appeal No.19-NL/10 of 1999 confirming the judgment dated 24.11.1999 passed by the learned Sub Divisional Judicial Magistrate, Nalagarh, District Solan, H.P. in Case No. 174/2 of 1996, whereby, the verdict of learned S.D.J.M., Nalagarh holding the accused-revisionists guilty of offence under Section 324 I.P.C. has been affirmed whereby 2 sentence of imprisonment for 6 months was awarded in addition to pay fine of Rs. 1500/- each for offence under Section 324 I.P.C. and in default of payment of fine, they have been directed to undergo further imprisonment for 6 months. 2. The prosecution case is that on 29.10.1996 at 7.30 a.m. the accused-petitioners-revisionists (hereinafter referred to as the revisionists) caused hurt to Pratap Singh with a sharp edged weapon and threatened him to kill. FIR was lodged and the police investigated the case and on investigation, charge sheet was framed for their alleged involvement under Section 324/506 IPC. 3. In order to prove its case, the prosecution in all has examined nine witnesses, whereas none from the defence side. On appreciation of evidence and on the basis of the material available on record, the learned S.D.J.M. found the revisionists guilty of offence under Sections 324 IPC and sentenced them as aforesaid. Feeling aggrieved, the revisionists had preferred Criminal Appeal No.19-NL/10 of 1999, learned Additional Sessions Judge, Solan camp at Nalagarh, District Solan, H.P., while adjudicating the appeal has also discussed the prosecution witnesses and materials on record. 4. PW-1 Dr. A.K.Tiwari, M.O. R.H. Nalagarh has stated that he is posted as M.O. R.H. Nalagarh since February, 1994. He had given the medical opinion in a criminal case and 3 on 29.10.1996, he examined Pratap Singh and on examination he found the following injuries on his person:- i) There is a sharp cut wound over the inner border on the RT lower arm 3½” below the elbow joint. Intermingled with fresh blood over the injured area and blood stain over the clothes. Blood oozing out from the injury. The wound stiched by him. ii) 2 Nos. of 3½” long 1½” c.m. broad vertical pattern bruise on outer surface of left shoulder and upper arm. iii) 1 No. of pattern bruise over the outer RT frontal area 2” x 1½” c.m. iv) Abrasion on left little finger with fresh bleeding. PW-1 has further stated that the injuries were simple in nature and injury No. 1 was caused by sharp and edged weapon within 24 hours. The Injury No. 1 is possible with axe Ex. P1. Rest of the injuries are possible with danda Ex. P2. 5. Learned counsel for the revisionists has drawn the attention of this court to the statement of PW-1 whereby one injury was caused only within 2 to 3 hours. According to him if the incident has occurred at 7.30 a.m. then at the time of medical examination it cannot be said to have been caused within 2 or 3 hours. According to the learned counsel for the revisionists there appears to be some internal contradictions of opinion of PW-1. 6. PW-2 Pratap Singh has stated that the Panchayat had decided unanimously that if buffalo, goat, cow damage the fields then the person would be fined Rs. 50/-, 30/- and 20/-. 4 PW-2 Partap Singh has further stated that about one year ago at about 8.00 a.m. when he was sowing the grass and his family members were also working. On 27.1.1996 he came to know that the cattle of the accused damaged the fields of the injured and cattle of the accused were brought in possession of the complainant. The complainant told the accused to pay the damage amount but the accused refused to pay the same and the accused inflicted injuries to the daughter-in-law of Mahinder Kaur i.e. complainant. When the complainant tried to rescue his daughter-in-law, the accused persons also inflicted injuries to him by way of sticks. The accused Dharam Singh had inflicted the injuries with axe on the right arm awhereby the blood came out. The injury was also inflicted upon his person upon the back part of the body and upon legs of the body. Karam Chand and Ram Singh etc. came to rescue. The blood came out from the injury and clothes of the injured were also clotted with the blood. According to him the injures were inflicted upon the complainant on 29.10.1996 and whereas, the cattle of the accused were taken into possession on 28.10.1996. The report Ex. PC was lodged in the police station and medical examination of the injured was also conducted and the investigation agency came to spot and took into possession the clot blood clothes vide memo Ex. PD. The shirt Ex. P3, trouser Ex. P4 are the same which were worn by the injured at the time of incident. 5 PW-3 Ram Singh has stated that nothing happened in his presence and accused did not beat in his presence. According to the learned counsel for the revisionists when his daughter-in-law Mahindra Devi (PW-4) was beaten then PW-2 tried to interfere and save her thereafter he was beaten. Testimony of PW-1 indicates that Karam Chand and Ram Singh etc. had given indulgence when he was being beaten and in cross examination PW-2 had disclosed that tension was going on with accused-revisionists as on 28.10.1996 cattle belonging to the accused were kept in custody, as such quarrel took place on 29.10.1996. 7. According to the learned counsel when accused revisionists were abusing her father-in-law, namely Pratap Singh (PW-2) then at that instance, PW-4 being a lady cautioned them and then she was beaten and her father-in-law, the victim (PW2), was assaulted and injured and by the indulgence of Karam Singh and Bhag Singh, the quarrel was controlled. It is also highlighted that village belonging to the victim was a small village having nine houses having the population of less than about 300 whereas, 20 to 25 persons were present at the time of incidence. The testimony of the injured is corroborated by the eye witness of the incident PW-4, Smt. Mahinder Devi and PW-5 Karam Chand. The testimony of the injured is also corroborated by the medical examination report whereby, the injured has sustained four injures and 6 injured had also sustained sharp cut incised wound. PW-4 Mahinder Devi and PW-5 Karam Chand have specifically stated that the accused persons in their presence had inflicted injuries upon the person with axe and stick, as such, the testimonies of PW-4 and PW-5 inspire confidence of the court. According to the learned counsel for the revisionists it was PW-5 Karam Chand, Bhag Singh and Ram Singh who had saved on the spot the PW-2 from being beaten more. However, it has been specifically argued on behalf of the revisionists that when he reached n the spot, push and pull was being made, however, quarrel had come to an end. On coming to the spot he came to know about the injury having been caused. According to the learned counsel for the revisionists there are discrepancies in the testimonies of PW-1 when according to PW-1 one injury could have been inflicted within two or three hours then in that respect the occurrence could have been taken place about 11 O’clock which creates doubt about the actual occurrence having been taken place at about 7.30 a.m. 8. PW-2, the victim, though has deposed about his beating, but his testimony has been contradicted with the testimony of PW-4. PW-4 being a lady, daughter-in-law of PW- 2, has indicated that when PW-2 was being abused by the revisionists in such circumstances, she tried to stop them. Thereafter both were beaten and injury was inflicted by axe and 7 lathi. Accordingly, there appears contradiction about the manner of assault. According to the learned counsel for the revisionists PW-4 though may be on the spot witness, however, cannot be said to inspire confidence as contradiction would apparently be noticed when he subsequently in his cross examination has categorically indicated that when he reached at the spot, the fight had come to an end and push and pull was going on, which clearly indicates that he could not see the actual fight and is not a witness of occurrence. Apart from this, as submitted by learned counsel for the revisionists the prosecution witnesses, namely, PWs 2, 4 and 5 are interested and related witnesses and no independent witness was examined whereas, PW-3 had already been declared hostile and another person Bhagh Singh was said to have given indulgence and present on the spot was not examined by the prosecution, as such the testimony of related and interested witnesses had not to be relied upon. 9. According to learned counsel for the revisionists PW2, the victim, himself has admitted in his cross examination that tension was going on. Apparently, a previous enmity was inexistence between the revisionists and the victim, therefore, the possibility of false implication of the revisionists cannot be ruled out. According to learned counsel for the revisionists, the testimonies of interested and inimical witnesses cannot be relied upon, whereas, on the other hand according to learned Deputy 8 Advocate General the testimonies of PWs 2, 4 and 5 are corroborated. PW-2, being an injured victim, has deposed in a natural way and in evidence is corroborated by the testimony of PW-4. The prosecution case is also supported by PW-5, however, the minor contradictions cannot vitiate the prosecution proceedings. 10. According to the learned Additional Sessions Judge the injured victim PW-1 when has clearly deposed that he was inflicted injury upon his person with axe and stick and the injury was corroborated by the testimony of PW-1 and eye witness Mahindra Devi (PW-4) as well as Karam Chand (PW-5) and the testimony of PW-1 injured victim is corroborated by the medical evidence. Therefore, in these circumstances, the testimonies of PWs 4 & 5 inspired confidence and the apprehension of the revisionists that they have falsely been implicated because of long standing enmity was discarded for lack of positive, cogent and reliable documents. 11. I have heard learned counsel for the parties and have gone through the contents of the evidences and materials on record. In my considered view the observations of learned Additional Sessions Judge that though the prosecution witnesses relied upon were interested witnesses, however, the deposition and testimonies are to be carefully examined, however, has not to be out rightly rejected as the testimonies of 9 the injured witnesses PWs 2, 4 and 5 inspires confidence despite the fact that they are interested witnesses. The learned Additional Sessions Judge has rightly relied upon the testimonies of the interested witnesses as the testimonies of these witnesses were corroborated. 12. The fact of existence of litigation is not sufficient to discard a witness if such witness is otherwise available. The court can proceed with conviction in the case of evidence of partisan witnesses alone provided they inspire confidence in view of the decision of Supreme Court in Bhanuprasad Hariprasad Dave and another Vs. The State of Gujarat AIR 1968 SC 1323. Since the prosecution has to prove its case beyond all reasonable doubt in view of the decision of Supreme Court in Gian Mahtani Vs. State of Maharashtra etc. AIR 1971 SC 1898, therefore, the analysis made by the learned SDJM, as referred by the learned Additional Sessions Judge, appears to be prima facie, legally correct and requires no interference. Learned counsel for revisionists placed reliance on Jang Singh and others Vs. State of Rajasthan (2001) 9 SCC 704 where, under the facts and circumstances, sole testimony of one prosecution witness was said to be not sufficient to convict the accused as outsider witness was available at the time of occurrence when the incidence took place and more specifically at bus stop where many people were present and non examination of any of the passengers travelling in the bus, 10 particularly the one who got down from the bus at the bus stop at the relevant time was not justifiable. 13. In the present facts and circumstances since the village from where both the accused/revisionists and victim belong is a very small village, where, inhabitants are in nine houses then with such number of persons it is very likelihood that all the persons are more or less related then the prosecution may not be able to have any person from outside of the scene and here those who are most relevant have been examined and testimony of PW-2 being injured victim is corroborated by PWs 4 and 5 and PW-5 though independent witness has become hostile, however, in these circumstances the decision of Supreme Court in Jang Singh’s case (supra) cannot be helpful to the accused appellants. In view of the decision in Sk. Siraj Vs. State of Orissa and others 1994 Cr.L.J. 2410 all the witnesses named in the complaint need not be examined. Expression “all his witnesses” means all the witnesses whom complainant chooses to examine. In my considered view the present case is not helpful to the accused-appellants in the present facts and circumstances of the case as the prosecution in order to prove its case may examine the relevant witnesses. 14. Reliance by the learned counsel for the revisionists has been placed on the decision of Supreme Court in State of U.P. and another Vs. Jaggo alias Jagdish and others 1971 (2) SCC 42. In my respectful consideration the decision of 11 Jaggo alias Jagdish case (supra) is not helpful to him where it was indicated that duty of the prosecution to examine necessary witnesses. Here also since the prosecution has examined all the relevant witnesses, therefore, the decision of the said case is not protecting the case of the revisionists. Reliance of the learned counsel for the revisionists in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 is also not helpful as the Supreme Court has very categorically observed that the court should examine the testimony of close relatives of the victim as witnesses with great care and caution. Here the testimonies of PWs 4 and 5 have been examined with care and caution which cannot be said to be fatal to the prosecution, as such the decision of the Supreme Court is rather in favour of the prosecution. 15. According to learned counsel for the revisionists this court has ample power to make reappraisal on the evidence and materials on record, in view of the decision in view of the decision in Krishnan and another Vs. Krishnaveni and another (1997)4 SCC 241 in which the Hon’ble Supreme Court has held as under:- “7. It is seen that exercise of the revisional power by the High Court under Section 397 read with Section 401 is to call for the records of any inferior criminal court and to examine 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 and to pass appropriate orders. The Court of Sessions and 12 the Magistrates are inferior criminal courts to the High Court and Courts of Judicial Magistrate are inferior criminal courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e. to examine 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, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that its subordinate courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior criminal courts or to prevent miscarriage of justice.” In my respectful consideration the observations of the Supreme Court in the case of Krishnan (supra), are in favour of the prosecution and not to the revisionists. 16. The learned counsel for the revisionists has placed reliance on the decision of Supreme Court in State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and others (2004) 7 SCC 659 in which it was held that quarrel and Marpeet took place in a fit of anger and there was an earlier existing dispute between the neighbours of the parties 13 and incident had already taken place 10 years back and in the facts and circumstances learned lower court as well as the first appellate court have concurrently found the accused-appellant guilty for offence under Sections 324 and 452 read with Section 34 IPC and the accused-appellants were sentenced for one month simple imprisonment with fine of Rs. 500/-, as such the offence and conviction was viewed from the point of reformation and was said that the benefit of Section 4 of the Probation of Offenders’ Act, 1958 could be given to accused- appellants and they were directed to file bonds in lieu of sentence. According to learned counsel for the accused even in view of the verdict of Supreme Court in Sita Ram Paswan and another Vs. State of Bihar (2005) 13 SCC 110 the power under Sections 3 & 4 of the Probation of Offenders’ Act, 1958 has to be invoked and keeping in view the nature and gravity of offence, impact of the offence on the victim is correct in over all circumstances even at the stage of appeal or revisional stage. Even while hearing the appeal under Article 136 of the Constitution the court could invoke its jurisdiction to substitute the sentence in view of the Probation of Offenders’ Act, 1958 and in the peculiar facts and circumstances the Supreme Court since has invoked its jurisdiction under the aforesaid Act, where the accused-appellants were held guilty and convicted and sentenced for imprisonment for 3 months under Section 323 and 6 months under Section 324 read with 14 Section 34 IPC, however, benefit of Probation of Offenders’ Act, 1958 was extended to such accused-appellants. 17. On the other hand, learned Deputy Advocate General has invited the attention of this court to the decision of Supreme Court in State of H.P. Vs. Lekh Raj and another (2000) 1 SCC 247 where it was indicated that minor discrepancy or variance in the testimonies of prosecution witnesses does not make the prosecution’s case doubtful. According to learned Deputy Advocate General in view of the decision of the Supreme Court in Jagmohan Singh’s case (supra) minor discrepancies or observations in the statements of PWs should be in sequence and in the facts and circumstances of the case defence of false implication of the accused due to alleged incidence which has not taken place in immediate past, but has taken place long past cannot be accepted. According to learned Deputy Advocate General in exercise of revisional power, the High Court cannot undertake examination of entire evidence and upset the concurrent finding of trial court as well as of the first appellate court. In my respectful consideration the decision of Supreme Court in Jagmohan Singh’s case (supra) is relevant as the trial court and the first appellate court have concurrently arrived at the conclusion in the facts and circumstances of the case where the accused-petitioners were held guilty of offence under Section 324 read with Section 34 IPC. 15 18. Ordinarily it is not open for the High Court to interfere with the concurrent findings of the courts below by reappreciating the evidence in its revisional jurisdiction in view of the decision of the Supreme Court in State of Karnataka Vs. Appa Babu Ingale AIR 1993 SC 1126. 19. Revisional court cannot reappreciate evidence and set aside the finding of fact of trial court and substitute its own findings. Only in extreme cases the revisional Court can set aside the findings of fact when they are based on misreading or non-reading of evidences or misappreciation of evidences amounting perversity or not supported by logic in view of the decision in Narayan Behera Vs. State of Orissa (1984) 2 Crimes 50. 20. A court of Revision would not ordinarily reassess the evidence and interfere merely because the view of the trial Court as to the evidences does not commend to itself; because that would be exercising the power of appeal in the guise of revision in a case where the right of appeal has been denied by the Legislature in view of the decision of Supreme Court in Mahendra Pratap Singh Vs. Sagu Singh AIR 1968 SC 707. 21. In exercising revisional jurisdiction, High Court is not competent to enter into minute details of evidences in view of the decision of Supreme Court in Khetrabasi Samal Vs. State of Orissa AIR 1970 SC 272. 16 22. After hearing learned counsel for the parties and going through the evidences and materials on record, I am of the considered view that the learned trial curt has rightly held the accused-petitioners-revisionists guilty of offence under Section 324 read with Section 34 IPC and the same has rightly been affirmed by the learned Additional Sessions Judge. Therefore, there is no occasion to interfere in the same and as such the conviction is upheld. However, in the peculiar facts and circumstances of the case holding the revisionists guilty of offence under Section 324 read with Section 34 IPC they are to be sentenced for the period undergone and in lieu thereof they are to be awarded by way of a sentence of making payment of Rs. 7,000/- each to the victim. As such, the accused have to pay the above amount within 4 months and in case of non payment of fine, they have to undergo six months further imprisonment as awarded by the learned SDJM and affirmed by the learned Additional Sessions Judge. 23. However, keeping in view the totality of the facts and circumstances of the case that the incidence occurred about 12 years back and no doubt, the accused-petitioners-revisionists as well as the victim belong to the same village and the interested persons have come forward deposing about the assault and about inflicting of injuries to the victim and also the fact that the said accused have never been involved in any of the offence and they have never been convicted or sentenced 17 previously and also keeping in view the nature of injuries inflicted and the type of trauma the victim have undergone, it is difficult to extend the benefit of Probation of Offenders’ Act. 24. In view of the above discussion the appeal is disposed of. June 6, 2008(K) ( R. B. Misra ), J.