IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 69 of 2003. Date of decision February 23, 2010. Bhurru Ram & others …Petitioners. Versus State of Himachal Pradesh …Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the petitioners Mr. Vikas Bhardwaj, Advocate. For the respondent Ms. Ruma Kaushik, Addl. A.G. Dev Darshan Sud, J. (Oral) The petitioners have preferred this criminal revision against the judgment of the learned Additional Sessions Judge-II, Kangra at Dharamsala, affirming the judgment and sentence imposed upon the petitioners herein and one Man Singh for offences under Section 332 read with Section 34 of the Indian Penal Code. Four persons namely Man Singh, son of Shri Krishan Chand, Bhurru Ram, son of Shri Khazana Ram, Subhash Chand, son of Shri Punnu 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - Ram and Chhanga Ram, son of Shri Nathu Ram were arrayed as accused before the learned trial Court for having committed offences under Section 332 read with Section 34 Indian Penal Code. In appeal, the allegations against Man Singh were directed to be tried before the appropriate authority under Sections 52 and 70 of the Army Act. Bhurru Ram has since died. Only two accused are now left who are petitioners before this Court. The case put up by the prosecution is that Jagat Ram complainant was working as Chowkidar in CSIR Complex, Palampur. On 20.8.1993 he was on duty from 4 P.M. till 12’o clock midnight. At about 7.15 P.M., all the accused arrayed before the trial Court came in Van No. HP-02-3410 to the CSIR Complex and when confronted by the complainant as to why they had come there, they started beating him up. He raised hue and cry at which PW-4 Fauni Ram and thereafter PW-7 Nand Lal rescued him from their clutches. On seeing these two chowkidars who were also working in the CSIR complex, all the accused fled away. According to PW-7 Nand Lal, the matter was reported to the higher authorities and then the complainant was taken away for medical - 3 - treatment. He was medically examined by PW-1 Dr. K.C.Kalyan, who was posted as Medical Officer in the hospital at Palampur. The doctor issued Medico Legal Certificate Ex.PW- 1/A which records that the complainant had four abrasions about ½ cm – 1 cm over the right fore arm/ elbow with irregular margins, abrasions ½ x ½ cm over the right elbow. He was complaining pain in the head but no injuries were noticed. The doctor also records small bruises on both knees with no bleeding. Ex.PW-3/A is the First Information Report recorded by the police on the statement made by the complainant Jagat Ram, PW-3. The facts as narrated by him are that he was working as chowkidar in CSIR Complex, Palampur. He was on his duty from 4 P.M. till midnight. At around 7.15 P.M. in the evening, one Van bearing No. HP-02-3410 entered the complex and when he asked the four persons sitting therein as to why they had come there, he was beaten up by them. He states that he recognized all the accused as light of the van was on and all could be identifiable. He names them as Subhash Chand, son of Shri Punnu Ram, Bhurru Ram, son in law of Punnu Ram, Chhanga Ram, son of Shri Nathu Ram and Man - 4 - Singh, son of Shri Krishan Chand. He states that when he asked them the purpose of their visit, they pounced upon him, tore his clothes and beat him up. On hearing his cries, Fauni Ram and Nand Ram came there and on seeing these two persons, all the accused persons fled away. The accused were charged of causing hurt to Jagat Ram who was working as chowkidar in the CSIR Complex and was a public servant. The charge states specifically that the complainant was assaulted during the course of his duty by the accused persons and thereby obstructed him in the discharge of his official duty. In order to prove its case, the prosecution examined seven witnesses, in addition to documentary evidence to prove the presence of the complainant who was working as a chowkidar on the date of occurrence. The learned trial Court, at the conclusion of the evidence, holds that the accused are guilty of the offences as charged and sentenced them to undergo simple imprisonment for six months, denying them benefit of the Probation of Offenders Act, holding that deterrent punishment was required to be awarded to - 5 - persons obstructing public servants from discharge of their duty. The learned Additional Sessions Judge affirmed the sentence with this exception that Man Singh has been directed to be excluded from the trial and to be tried by the Army authorities in accordance with the provisions of the Army Act. I have heard the learned counsel for the petitioners and the learned Additional Advocate General and have gone through the record. Learned counsel for the petitioners submits that the Courts below have ignored and not considered the evidence which completely negates the incident occurring in the manner as alleged. He submits that a bare perusal of Ex.PW-2/B would show that it has been tampered with and on the date when the incident is alleged to have occurred, Jagat Ram was not on duty. He points out that the date 19.8.1993 has been altered to 20.8.1993 in this attendance register Ex.PW-2/B. This is plain even from a bare reading of the Register. The first sheet of this attendance register is also not complete. It records the name of four chowkidars, but their attendance is marked only up to the 20th or 21st and all other - 6 - columns have been left blank. Learned counsel submits that there is a yawning hiatus between the statements of PW-3 Jagat Ram made to the police on the basis of which FIR Ex. PW-3/A has been recorded and his statement recorded in the Court. He submits that in his cross examination in Court, he admits that he does not know any of the four accused, yet in his statement before the police, he has named all of them including their parentage etc. Further, he improves his statement to implicate the accused when he states that he was assaulted with sticks and stones though he did not make any such statement before the police. He submits that this has been done deliberately to make it in accord with medical evidence. These facts can be ascertained from a bare reading of evidence and not by detailed analysis of what is stated before the police and in his evidence. Dr. K.C.Kalyan PW-1 states that injuries as recorded by him cannot be caused by fist and kick blows. On the two alleged eye witnesses Fauni Ram PW-4 and Nand Lal PW-7, learned counsel submits that the accused cannot be convicted on their statements since they neither corroborate what the complainant states nor the incident or the - 7 - occurrence in the manner in which it has been stated to have occurred. All that PW-4 Fauni Ram says is that he heard some noise and when he reached the spot, he says that the accused were beating the complainant and on seeing him, they fled away. But PW-7 Nand Lal states that he was on duty from 12 P.M. to 8 A.M. and when he was passing by that way, he saw Jagat Ram complainant and accused quarreling amongst themselves. He along with Fauni Ram carried the complainant to the office and reported the matter to the concerned officer. He also says that the complainant had received injuries on his face. Lastly, he contends that there is no evidence on record to prove that offence under Section 332 IPC stands established. Mrs. Ruma Kaushik, learned Additional Advocate General, submits that the prosecution has been able to prove its case beyond any reasonable doubt, as the complainant has been corroborated on all material particulars by PW-4 Fauni Ram and PW- 7 Nand Lal and that the medical evidence when coupled with the other documentary evidence on record is considered in its totality, leaving alone a few so called improvements which have been made, the prosecution case cannot be - 8 - doubted at all. This Court cannot sift evidence with a fine tooth comb as that would tantamount this Court converting itself into trial Court. I cannot accept the submissions made by the learned Additional Advocate General. The contradictions which have been pointed out and highlighted by the learned counsel for the petitioners are not minor but are such which go to the root of the case. There is no doubt that Ex.PW-2/B has been tampered with. The date has been altered from 19.8.1993 to 20.8.1993 to show that PW-3 was on duty on that date. How and under what circumstances this interpolation has been made, has not been explained. Coming to the incident as it occurred, the statement made by the complainant PW-3 before the police and his statement in Court cannot be reconciled. Only two important facts need be noticed. The complainant while making statement before the police on the basis of which FIR Ex.PW-3/A has been recorded, states that he recognized all the four accused and also named their parentage while in Court he admits that he does not know any one of them. He does not state before the police that he was assaulted - 9 - with sticks and stones whereas this fact comes as a major improvement in the statement made on oath before the Court. When coupled with the evidence of PW-1 Dr. Kalyan and the Medico Legal Certificate Ex.PW-1/A, there is no doubt that the injuries found on the body of the complainant could not be caused by kicks and fist blows. The entire incident is muddled up by the prosecution and the narration before the police as also in the Court entirely different. One more fact needs to be considered and that is that PW-7 Nand Lal is categoric when he states that this matter was reported to the higher authorities, but this is not so stated in the FIR nor has such officer been produced to state that immediately after the incident, the complainant or any of the purported eye witnesses reported this incident to any officer. Of course, there is the other aspect of the case urged and that is that the petitioners have been falsely implicated because they had litigation with the CSIR, in proof of which they have placed on record Exts. D-1 to D-3, the orders of the Civil Court. I am not entering into this controversy because even without this, the - 10 - prosecution has not been able to prove the incident, the interpolations which have been made in Ex. PW-2/B and the contradictions in the statements of the witnesses. PW-7 Nand Lal also fails to explain as to what he was doing in the Complex once his duty was from 12 mid night to 8 A.M. in the morning. Learned counsel for the petitioners relies upon the decision of the Supreme Court in D. Chattaiah and another v. State of Andhra Pradesh, AIR 1978 SC 1441, to urge that no offence under Section 332 IPC has been made out. In particular, he relied upon the dicta laid down by the Court holding: “9. It was thus manifest that the assault on the Typist (P. W. 1) had no real nexus or causal connection, or consequential relation with the performance of his duty as public servant. There was not even a scintilla of evidence from which it could be reasonably inferred that the intent of the assailants was to prevent or deter P. W. 1 from the discharge of his duty as such public servant. 10. In view of the above, the charge as laid under S. 332 I. P. C. and the conviction of the - 11 - appellant on that count, cannot be sustained. The appellants could, at the most, be held guilty under S.323 I. P. C., the injuries caused being simple.” He substantiates his submissions from the judgment of the Bombay High Court in Murlidhar K. Virulkar v. State of Maharashtra, 2005 Cri.L.J. 3378, holding: “ 6. In the oral testimony of PW-1 Dadarao, he has narrated the story of assault. However, Dadarao has not deposed in his statement that the act of assault caused either as a consequence of the complainant’s having discharge certain public duties due to which the accused was aggrieved or that the assault was caused with an intention of preventing the complainant from discharge of his public duties or from deterring him therefrom. Taking reference from the investigation papers, the complaint as well as the charge sheet, it was open to the prosecution to move the Sessions Judge to have altered the charge and proceeded with the trial to render the charge to correspond to the contents - 12 - of the FIR, investigation and charge sheet. Even the learned Sessions Judge could have suo motu altered the charge. Had this been done so, this would have enabled the accused to have defence against such altered charge. 8. It is clear from the evidence of PW-1 the complainant that the accused was required to face a trial for the charge for which no evidence whatsoever has been brought on record. 9. Law does not raise presumption that a public servant when assaulted while in discharge of public duty, that any assault or offence committed in relation thereto would or shall be liable to be “presumed to have been committed” in relation to performance of public duty by the complainant or that such offence was committed to deter or prevent the public servant from performing official or public duty.” Learned Additional Advocate submits that this Court exercising revisional powers under Section 397/401 of the Code of Criminal Procedure cannot convert itself into an - 13 - appellate Court to re-appreciate all facts. Learned counsel for the petitioner submits that the Supreme Court in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and others, AIR 2004 SC 4412 holds: “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 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 397 to Section 401, Cr. P.C. - 14 - read together do not indicate that the revisional power of the High Court can be exercised as a second appellate power.” Learned Additional Advocate General submits that the Supreme Court in State of A.P. v. Pituhuk Sreenivanasa Rao, AIR 2000 SC 3515, reaffirms the limits of the jurisdiction of the High Court holding: “4. We have extracted above the very words of the learned Single Judge as nothing more is needed to highlight the hollowness of the order, for, it was without any reference to the evidence on record or the findings entered by the trial court and the Appellate Court regarding the evidence. If a revision is to be disposed of by upsetting the concurrent findings of two courts below in the aforesaid fashion it would amount to abdication of the judicial function of the High Court…..…….It is redundant to remind that revisional jurisdiction is basically supervisory in nature.” The decision in State represented by Tahsildar-cum-Sales Officer v. M.Janakiraman and another, 2009(4) SCC 504 was also relied upon. In these judgments, the Supreme Court directs that clear and cogent reasons have to - 15 - be given as to why the revisional Court interferes in the concurrent findings of the Court below. I may observe that the evidence with respect to the incident has been considered only for the purpose of ascertaining prima-facie as to whether the incident occurred in the manner alleged or not. The tampering of the date in the Attendance Register, the medico legal evidence coupled with the statement of the complainant does not in any manner establish as to whether the alleged incident occurred at all. Changing a date in a document seeking to establish a particular fact is a matter of serious nature. Why the Courts below have not considered this remains obscure. In revisional jurisdiction, this Court is not precluded from looking into the fact as to whether in the totality of the facts and circumstances, the incident is established or evidence which negates the occurrence has been excluded without reference to it. Further, when coupled with the fact that no facts as required by Section 332 IPC have been established on record, the petitioners cannot be convicted of the offences. - 16 - There is no evidence on record to show or establish that the petitioners acted in concert to deter the complainant PW-3 from discharging public duty. There is no evidence again to establish as to how the complainant sustained injuries. In these circumstances, I hold that no offence against the petitioners, much-less offence under Section 332 IPC has been made out. The judgment of the Court below is accordingly quashed and set aside. The bail bonds furnished by the petitioners are discharged. The petitioners are acquitted of the offences as charged. Bail bonds furnished by them are discharged. February 23, 2010 (PC) (Dev Darshan Sud), J.