IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 175 of 2003. Judgment Reserved on 7.4.2008. Date of decision 29.4.2008. Subhash Chand and another ….Petitioners. Versus State of H.P. ….Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the petitioner: Mr. R.K.Gautam, Sr. Advocate, with Mr. Naveen Bhardweaj, Advocate. For the respondent Ms. Ruma Kaushik, Addl. AG. Complaint Sant Ram in person. Dev Darshan Sud, J. This revision petition has been preferred by the petitioners against the judgment and sentence imposed by the learned Additional Sessions Judge, Solan, Camp at Nalagarh, affirming the 1 Whether Reporters of Local Papers are allowed to see the judgment? - 2 - judgment and sentence imposed by the learned trial Court in Criminal Case No. 9/2 of 1999. The brief facts relevant for the decision of this case are that both the petitioners were arraigned for having committed offences under Sections 448,323,506 read with Section 34 IPC. The prosecution story, in brief, is that the complainant had filed a civil suit with respect to some house in the Court of learned Sub Judge, Nalagarh which was decreed in his favour. On 12.10.1998 he was put in possession of the house in accordance with the orders passed by the learned Sub Judge. It was alleged that the complainant put his luggage in the suit property, locked it and thereafter went to Nalagarh. On 13.10.1998, the complainant noticed that the petitioners had forcibly occupied the premises. When they were asked to vacate the house, the accused are alleged to have thrown chilly powder in the eyes of the complainant and an attempt was made to beat him up with dandas. The learned trial Court, on analysis of the evidence, came to the conclusion that the story regarding throwing of chilly powder was not established from the facts on record. However, the - 3 - other aspect of the accusation i.e. entry with intent to commit offence of intimidation, insult etc. has been established on record. The petitioners were thereafter convicted under Section 448 read with Section 34 of the Indian Penal Code and sentenced to pay a fine of Rs.1000/- each. In default of payment of fine, it was ordered that they will undergo simple imprisonment for one month each. It was also ordered that the fine, if recovered shall go to the complainant as compensation. An appeal carried to the learned Additional District Judge proved unsuccessful who, after consideration of the entire evidence on record, concluded that the prosecution had been able to prove the case against the petitioners beyond reasonable doubt. The petitioners are now in revision. Learned counsel for the petitioners urges that both the learned Courts below were wrong in holding that the petitioners were guilty of the offence as alleged. He submits that there is no corroboration of the testimony of the complainant, the witnesses of the prosecution are interested and as such cannot be relied upon as their evidence is - 4 - partisan. He has placed reliance on the judgments of the Hon’ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra , AIR 1984 SC 1622, Jang Singh and others v. State of Rajasthan , (2001) 9 SCC 704, Ram Kumar and another etc. v. State of Haryana, AIR 1998 SC 1437, Sukhar v. State of Uttar Pradesh, AIR 1999 SC 3883 and Umrao v. State of Haryana, (2006) 10 SCC 136. I have heard learned counsel for the petitioners and Mrs. Ruma Kaushik, learned Additional Advocate General and gone through the record. I am not convinced that the evidence which has been led in this case is partisan or parochial in nature or that it is in any manner consistent with the innocence of the petitioners. Both the learned Courts below have found concurrently against the petitioners. It would not be the jurisdiction of this Court sitting in revision under Section 397 of the Code of Criminal Procedure to reappreciate the entire evidence. Of course, in case of perversity it is always open to this Court to reconsider the evidence and to set aside the sentence imposed upon the petitioners. - 5 - In this case, I do not find that the testimony of the complainant is such which would require interference by this Court or that the Courts below are wrong in appreciating the evidence. In Deb Narayan Halder v. Smt. Anushree Halder, AIR 2003 SC 3174, the Hon’ble Sureme Court held: “11. ……It is well settled that the appellate or revisional court while setting aside the findings recorded by the court below must notice those findings, and if the appellate or revisional court comes to the conclusion that the findings recorded by the trial court are untenable, record its reasons for coming to the said conclusion. Where the findings are findings of fact it must discuss the evidence on record which justify the reversal of the findings recorded by the court below. This is particularly so when findings recorded by the trial court are sought to be set aside by an appellate or revisional court. One cannot take exception to a judgment merely on the ground of its brevity, but if the judgment appears to be cryptic and conclusions are reached - 6 - without even referring to the evidence on record or noticing the findings of the trial court, the party aggrieved is entitled to ask for setting aside of such a judgment…..” Similarly, in Jagannath Choudhary and others v. Ramayan Singh and another, AIR 2002 SC 2229, the Hon’ble Supreme Court held: “(10) While it is true and now well- settled in a long catena of cases that exercise of power under Section 401 cannot but be ascribed to be discretionary - this discretion, however, as is popularly informed has to be a judicious exercise of discretion and not an arbitrary one. Judicial discretion cannot but be a discretion which stands "informed by tradition, methodized by analogy and disciplined by system" - resultantly only in the event of a glaring defect in the procedural aspect or there being a manifest error on a point of law and thus a flagrant miscarriage of justice, exercise of revisional jurisdiction under this statute ought not to be called for. It is not to be lightly exercised but only in exceptional situations - 7 - where the justice delivery system requires interference for correction of a manifest illegality or prevention of a gross miscarriage of justice. In Nosibolla: Logendranath Jha and Chinnaswamy Reddy (supra) as also in Thakur Das (Thakur Das (Dead) by LRs v. State of Madhya Pradesh and Anr., 1978 (1) SCC 27) this Court with utmost clarity and in no uncertain terms recorded the same. It is not an appellate forum wherein scrutiny of evidence is possible; neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible. It is restrictive in its application though in the event of there being a failure of justice there can said to be no limitation as regards the applicability of the revisional power.” Precedents on this point need not be multiplied as the law is well settled. The learned trial Court formulated three points for consideration, namely as to whether on 13.10.1998, the petitioners with the common - 8 - intention committed house tres pass, second whether the petitioners, in furtherance of their common intention, voluntarily caused simple hurt to the complainant and third whether on the date and time of the occurrence, the complainant was threatened with dire consequences and told that he would be killed. On the first point, the learned trial Court placed reliance on the evidence of PW-1 Rameshwar Sharma, who was serving as a Bailiff in the Court of learned Sub Judge, Nalagarh. He affirmed on oath that pursuant to the judgment and decree passed by learned Sub Judge in case titled as Sant Ram versus Krishna Devi, he executed the warrant Ex.P-1 and proved the compliance report Ex.P-2. He stated that possession of the property was handed over to the complainant. There has been no serious effort to dislodge this testimony. The only suggestion put to him was that the accused were not present at the time when the possession was given. Ex.P-4 is another report of this Bailiff by which he had prayed for police assistance that the execution of the warrant in question, as according to him, one Smt. Shakuntla had resisted the execution of the decree. PW-5 - 9 - Lekh Ram is a process server who was serving in the Court of Sub Judge, Solan. In his sworn testimony, he has stated that on 12.10.1998, he had gone to village Nuagaon to deliver/serve summons and on the way he met Rameshwar Dass (PW-1), Shri Gian Sharma (PW-6) and the complainant. The Bailiff PW-1 told him that he was to deliver possession of the house pursuant to a decree. In these circumstances, he accompanied all of them. According to his testimony, the Pradhan, Up Pradhan and Numberdar of the village were present at the spot. Smt. Shankuntla was asked to vacate the premises which she refused to do, whereafter she was informed by PW-1 that possession had to be delivered pursuant to the order passed by the Court. He states that the household articles belonging to Smt. Shankuntla were removed from the house and possession delivered to the complainant. He is supported on all material particulars by PW-6 and the prosecution witnesses. The learned Court, on the basis of this evidence, has concluded that possession of the delivery of the house has been proved to have been handed over to the complainant. On consideration of the statement of PW-9 coupled - 10 - with the fact that the possession of the disputed premises had already been delivered and that on the subsequent day, it was the petitioners who were found to be in possession without any legal right, the trial Court concludes that the offence under Section 448 of the Indian Penal Code has been proved. On the aspect whether injury has been caused to the complainant as alleged, that is to say by throwing chilly powder in his eyes, both the learned Courts below held that this fact has not been proved. Similarly, both the Courts below held that alleged threat to kill the complainant has also not been proved beyond reasonable doubt. I do not find that the appraisal of evidence either by learned trial Court or by appellate Court suffers from any perversity requiring intervention of this court in the matter. The conclusions arrived at by both the learned Courts below are based on sound judicial principles and the offence under Section 448 of the Indian Penal Code stands established from the facts as narrated by the prosecution evidence. In these circumstances, I do not find any merit in this - 11 - revision petition which is accordingly dismissed. There shall be no order as to costs. April 29, 2008 (PC). (Dev Darshan Sud), J.