Himachal Pradesh High Court

Ashwani Kumar vs State Of Himachal Pradesh on 15 May, 2017

Author:
Sandeep Sharma

Bench:
Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Criminal Revision No.108 of 2013

.
Date of Decision : 15th May, 2017

______________________________________________________

Ashwani Kumar ....Petitioner.

Versus

State of Himachal Pradesh ...Respondent.

Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?1

For the Petitioner : Mr. C.S. Thakur, Advocate.

For the Respondent : Mr. Ramesh Thakur, Deputy Advocate
General.

Sandeep Sharma, Judge (Oral)

Instant Criminal Revision Petition filed under

Section 397
of the Code of Criminal Procedure, is directed

against the judgment dated 1.5.2013, passed by learned

Sessions Judge, Solan, District Solan, H.P. in Criminal Appeal

No.14-S/10 of 2012, affirming the judgment/order dated

14.12.2011/27.12.2011, passed by learned Chief Judicial

Magistrate Solan, District Solan, H.P., in Criminal Case No.1/2

of 2010, whereby the learned trial Court while holding

petitioner-accused guilty of having committed the offence

Whether reporters of the local papers may be allowed to see the judgment?

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punishable under
Section 379
of IPC, convicted and sentenced

him to undergo simple imprisonment for a period of one year

and to pay fine of Rs. 2000/- and in default of payment of fine,

.

to undergo simple imprisonment of one month.

2. Briefly stated facts, as emerged from the record are

that complainant namely Om Prakash (PW-5) got recorded his

statement under
Section 154
Cr.P.C., before the police that on

the intervening night of 6.10.2009 and 7.10.2009, at about

1:30 AM, petitioner-accused(hereinafter referred to as the

accused) committed theft of three tyres of the vehicles i.e.

Maruti Alto Car bearing No.HP-20C-6835 owned by one

Hemant Kumar and Maruti Van No.HP-14-A-4589 of Sh. Manoj

Kumar at Surya Vihar, Rajgarh Road, Solan, Tehsil and

District Solan, H.P. He further reported to the police that on

the intervening night of 6.10.2009 and 7.10.2009, he was

performing duty of Chowkidar at Surya Apartments, Surya

Vihar, Rajgarh Road, Solan and he stopped the accused from

removing the tyres from the vehicles, as referred above.

Complainant after noticing the aforesaid theft, informed Sh.

Manoj Kumar, who happened to be owner of Maruti Van No.

HP-14-A-4589 and thereafter police was also informed

regarding the incident. On the basis of aforesaid statement of

the complainant Om Prakash (PW-5), under
Section 154

Cr.P.C., FIR No. 267/2009, dated 7.10.2009 under
Section 379

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of
IPC
was registered against the accused at Police Station,

Sadar, District Solan, H.P. Police after completion of the

investigation, presented the challan in the competent Court of

.

law.

3. Learned trial Court after satisfying itself that a

prima-facie case exists against the accused, framed charge

under
Sections 379
of IPC against the accused, to which he

pleaded not guilty and claimed trial.

4. Learned trial Court on the basis of the evidence

made available on record by the prosecution, found accused

guilty of having committed the offence punishable under

Sections 379
of IPC and accordingly convicted and sentenced

him, as per the description given hereinabove.

5. Feeling aggrieved and dissatisfied with the

impugned judgment/order dated 14.12.2011/27.12.2011,

passed by learned trial Court, present petitioner-accused filed

an appeal under
Section 374(3)
of the Code of Criminal

Procedure before the learned Sessions Judge, Solan, which

came to be registered as Criminal Appeal No. 14-S/10 of 2012,

however fact remains that aforesaid appeal filed by the

petitioner-accused was dismissed, as a result of which,

judgment of conviction and order of sentence passed by the

learned trial Court came to be upheld. In the aforesaid

background, present petitioner-accused approached this Court

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by way of instant criminal revision petition, praying therein for

his acquittal after quashing and setting-aside the impugned

judgments passed by the learned courts below.

.

6. Mr. C.S.Thakur, learned counsel representing the

petitioner-accused, vehemently argued that the impugned

judgments passed by the courts below are not sustainable in

the eyes of law as the same are not based upon the correct

appreciation of evidence adduced on record by the respective

parties and as such, same deserve to be quashed and set-

aside. Mr. Thakur, while inviting attention of this Court to the

impugned judgments stated that bare perusal of the same

suggest that both the courts below have failed to appreciate the

evidence in its right perspective, as a result of which,

erroneous findings to the detriment of the petitioner-accused

have come on record, who is admittedly an innocent person.

Mr. Thakur, also made this Court to travel through the

evidence led on record by the prosecution to demonstrate that

no conviction, if any, could be recorded on the basis of the

statements having been made by so called material witnesses

because none of the material prosecution witnesses stated

something specific with regard to removal of the tyres by the

petitioner-accused in their presence. Mr. Thakur, while

referring to the statements of the witnesses also stated that

there are material contradictions in the statements of the

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prosecution witnesses and as such, no conviction, if any, could

be recorded against the present petitioner-accused on the basis

of the aforesaid statements. In the aforesaid background,

.

learned counsel for the petitioner prayed that present

petitioner-accused may be acquitted of the charge after setting

aside and quashing the impugned judgments passed by the

learned Courts below.

7. Mr. Ramesh Thakur, learned Deputy Advocate

General, supported the impugned judgments passed by both

the Courts below. While refuting the aforesaid contention

having been made by learned counsel for the petitioner, Mr.

Thakur, contended that bare perusal of the impugned

judgment passed by both the courts below suggest that same

are based upon the correct appreciation of the evidence

adduced on record by the prosecution and as such, there is no

scope of interference, whatsoever, of this court, especially in

view of the concurrent findings of fact and law recorded by the

courts below. Mr. Thakur, with a view to refute the aforesaid

contention having been made by the learned counsel for the

petitioner, invited attention of this court to the evidence led on

record by the prosecution to demonstrate that case against the

petitioner-accused has been proved beyond reasonable doubt

by the prosecution and bare perusal of the impugned judgment

passed by both the Courts below suggest that learned courts

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below have dealt with each and every aspect of the matter very

meticulously and there is no scope of interference whatsoever,

in view of the concurrent findings of fact recorded by the

.

learned Courts below. Mr. Thakur, also submitted that while

exercising revisional jurisdiction, Court has very limited

powers to re-appreciate the evidence available on record.

Learned Deputy Advocate General, has placed reliance upon

the judgment passed by Hon'ble Apex Court in case
State of

Kerala versus Puttumana Illath Jathavedan Namboodiri

(1999)2 Supreme Court Cases 452.

8. In the aforesaid background, Mr. Thakur prayed

that the present petition deserves to be dismissed being devoid

of any merit.

9. I have heard learned counsel for the parties and

have carefully gone through the record made available.

10. As far as scope of power of this Court while

exercising revisionary jurisdiction under
Section 397
is

concerned, the Hon' ble Apex Court in Krishnan and

another Versus Krishnaveni and another, (1997) 4

Supreme Court Case241; has held that in case Court notices

that there is a failure of justice or misuse of judicial

mechanism or procedure, sentence or order is not correct, it is

salutary duty of the High Court to prevent the abuse of the

process or miscarriage of justice or to correct irregularities/

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incorrectness committed by inferior criminal court in its

judicial process or illegality of sentence or order. The relevant

para of the judgment is reproduced as under:-

.

"8. The object of
Section 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. In addition, the inherent
power of the High Court is preserved by
Section 482
. The

power of the High Court, therefore, is very wide. However,
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

judicial process or illegality of sentence or order."

11. During the proceedings of the case, this Court had

an occasion to peruse the impugned judgments as well as

entire evidence led on record by the prosecution, perusal

whereof, certainly suggest that courts below have not

appreciated the evidence in its right perspective, rather there

has been total misreading and misappreciation of evidence, as

a result of which, erroneous findings have come on record.

12. In the instant case, prosecution with a view to

prove its case examined as many as six witnesses. PW-1,Sh.

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Hemant Kumar, PW-2, Sh. Manoj Kumar and PW-5, Sh. Om

Prakash (complainant) appears to be eye witnesses in the

instant case. Apart from above, prosecution also examined

.

PW-3, H.C, Chander Mohan, PW-4, ASI Shanti Swroop

(Investigating Officer) and PW-6, Raj Kumar. The statements

having been made by aforesaid witnesses may not be of much

relevance as far as adjudication of the present case is

concerned because admittedly none of them were present at

the time of occurrence. PW-5, Om Prakash deposed before the

court below that on the night of 7.10.2009 at about 1:30 AM

while patrolling in and around parking area he saw accused

removing tyres from Maruti Van No. HP-14-A-4589. He also

stated that he saw that tyres of Maruti Alto Car No. HP-20-C-

6835 had been removed. Aforesaid prosecution witness further

stated that immediately after noticing removal of tyres of

aforesaid cars, he informed Manoj Kumar i.e. owner of Maruti

Van No.HP-14-A-4589 and thereafter police was also informed

telephonically. It has also come in his statement that thereafter

accused was apprehended on the spot and handed over to the

police and thereafter stolen articles were recovered and taken

into possession. PW-1, Sh. Hemant Kumar and PW-2, Sh.

Manoj Kumar corroborated the aforesaid version put forth by

the complainant namely Sh. Om Prakash.

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13. PW-2, Manoj Kuamr stated that on the night of

6.10.2009 at about 1:30 AM, he received a telephonic call from

the complainant disclosing that someone had removed tyres

.

from his van and accordingly he went to the spot and found

that accused had been apprehended by the complainant. He

also stated that thereafter matter was reported to the police

and stolen tyres alongwith tools were taken into possession

vide seizure memo Ex.PW1/A. PW-2, Sh. Manoj Kumar also

made similar statement as of PW-1, Sh. Hemant Kumar.

14. Conjoint reading of the statements of aforesaid

witnesses certainly compels this Court to agree with the

submissions having been made by the learned counsel for the

petitioner that no conviction, if any, could be recorded on the

basis of aforesaid statements having been made by these

prosecution witnesses because of material contradictions in

their statements.

15. PW-5, Om Prakash stated that he had

telephonically informed Manoj Kumar, who came on the spot

and thereafter Manoj Kumar informed Hemant Kumar, the

owner of the another vehicle telephonically. PW-2, Manoj

Kumar stated that he had parked his vehicle bearing

registration No. HP-14-1-4589 on the road near Surya Vihar at

about 8:00 PM. He further stated that at about 1:30 AM, he

received telephonic call from Om Prakash Chowkidar that the

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tyre of his vehicle has been removed, at which he rushed to the

spot and saw that front tyre of his vehicle has been removed

alongwith the rear tyre of the Alto car bearing registration No.

.

HP-20-C-6835, which was parked near his vehicle. He also

stated that he telephonically informed Hemant Kumar i.e.

owner of another vehicle. In the cross-examination, PW-1 and

PW-2 have admitted that they did not see the accused

removing the tyres.

16. Interestingly, there is no explanation available on

record that how complainant Om Prakash PW-5, who

happened to be Chowkidar of Suraya Apartments, Solan could

know the telephone numbers of these prosecution witnesses

i.e. Manoj Kumar and Hemant Kumar because admittedly

PW-5, nowhere stated that he had prior acquaintance with the

aforesaid witnesses. Similarly, there is nothing in the

statements of PW-1 and PW-2 that they had some

acquaintance with Sh. Om Prakash (PW-5). There is nothing in

the statement of PW-5 that he noted telephone numbers of

PW-1 and PW-2 from some document lying in the front window

of the cars. If, statement of PW-5 is carefully perused, he

nowhere states that he saw the petitioner-accused removing

tyres, rather it has come in his statement that while patrolling

he noticed that front tyre of Maruti Car No. HP-14-A 4589 was

removed. It has nowhere come in his statement that

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immediately after noticing removal of the tyre, he apprehended

the petitioner-accused, rather his statement suggests that after

noticing the removal of tyres from the cars, he informed PW-1,

.

who further informed PW-2, who admittedly reached the spot

after 35 minutes of the call having been made by PW-5. Once,

PW-5 had seen the petitioner accused removing tyres, it is not

believable that despite that petitioner-accused remained at the

spot and not made an effort to run away from the spot of

occurrence because PW-5 has not stated that immediately after

noticing removal of the tyre he apprehended the petitioner

accused, rather all the prosecution witnesses stated that they

reached at the spot and apprehended the petitioner-accused.

17. Leaving everything aside, none of these material

witnesses as cited by the prosecution stated something specific

with regard to removal of tyres by the petitioner-accused,

rather PW-1 and PW-2 in their cross-examination categorically

admitted that they did not see the petitioner accused removing

tyres from their cars. Apart from above, it is not understood

that when the complainant PW-5 saw the petitioner-accused

removing tyre from the car, why he did not raise any alarm,

especially when incident occurred near residential colony.

18. This Court after having carefully examined the

statements having been made by these prosecution witnesses,

has no hesitation to conclude that courts below have not

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appreciated the evidence in its right perspective and there is no

discussion/analysis, as such of the evidence in the judgment

passed by the learned trial court while holding the petitioner

.

accused guilty of having committed the offence punishable

under
Section 379
of IPC. Bare perusal of the judgment passed

by the courts below suggest that while holding petitioner

accused guilty of having committed the offence, it has simply

placed reliance upon
the statement of PW-1, PW-2 and PW-5

without critically analyzing their statements in view of the

defence put forth by the petitioner-accused, who categorically

in his statement recorded under
Section 313
Cr.P.C. stated

that he has been falsely implicated in the case. Admittedly,

there are material contradictions in the statements having

been made by the prosecution witnesses and by no stretch of

imagination same could be termed to be cogent and convincing

evidence, which could enable to court below to record

conviction of the petitioner accused under
Section 379
of IPC.

19. After perusing the statements of the prosecution

witnesses as well exhibits placed on record, two views are

possible in the present case and as such, the petitioner-

accused is entitled to the benefit of doubt. The learned counsel

for the petitioner-accused has placed reliance on the judgment

passed by Hon'ble Apex Court reported in State of UP versus

Ghambhir Singh & others, AIR 2005 (92) Supreme Court

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2439, wherein the Hon'ble Apex Court has held that if on the

same evidence, two views are reasonably possible, the one in

favour of the accused must be preferred. The relevant

.

paragraph is reproduced as under:-

"6. So far as Hori Lal, PW-1 is concerned, he had
been sent to fetch a basket from the village and it

was only a matter of coincidence that while he
was returning he witnessed the entire incident.
The High Court did not consider it safe to rely on
his testimony because he evidence clearly shows
that he had an animus against the appellants.

Moreover, his evidence was not corroborated by
objective circumstances. Though it was his
categorical case that all of them fired, no injury
caused by rifle was found, and, only two wounds

were found on the person of the deceased. Apart
from this PW-3 did not mention the presence of

either PW-1 or PW-2 at the time of occurrence. All
these circumstances do create doubt about the
truthfulness of the prosecution case. The
presence of these three witnesses becomes
doubtful if their evidence is critically scrutinized.

May be it is also possible to take a view in favour
of the prosecution, but since the High Court, on an
appreciation of the evidence on record, has

recorded a finding in favour of the accused, we do
not feel persuaded to interfere with the order of
the High Court in an appeal against acquittal. It

is well settled that if on the same evidence two
views are reasonably possible, the one in favour of
the accused must be preferred."

20. The Hon'ble Division Bench of this Court vide

judgment reported in Pawan Kumar and Kamal Bhardwaj

versus State of H.P., latest HLJ 2008 (HP) 1150 has also

concluded here-in-below:-

"25. Moreover, when the occurrence is admitted
but there are two different versions of the
incident, one put forth by the prosecution and the
other by the defence and one of the two version is
proved to be false, the second can safely be

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believed, unless the same is unnatural or
inherently untrue.

26. In the present case, as noticed hereinabove,
the manner of occurrence, as pleaded by the
defence, is not true. The manner of the

.

occurrence testified by PW-11 Sandeep Rana is not

unnatural nor is it intrinsically untrue, therefore,
it has to be believed.

27.Sandeep Rana could not be said to have been

established, even if the prosecution version were
taken on its face value. It was pleaded that no
serious injury had been caused to PW-11 Sandeep
Rana and that all the injuries, according to the
testimony of PW-21 Dr. Raj Kumar, which he

noticed on the person of Sandeep Rana, at the
time of his medical examination, were simple in
nature.

21. Consequently, in view of the aforesaid discussion,

this Court has no hesitation to conclude that the judgment

passed by both the Courts below are not based on correct

appreciation of evidence available on record and as such, same

are quashed and set-aside. Accused is acquitted of the charge.

His bail bonds are discharged. The fine amount, if any

deposited by the petitioner accused be refunded to him.

The present criminal revision petition stands

disposed of, so also pending application(s), if any.

(Sandeep Sharma)
15th May, 2017 Judge.
(shankar)

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