Allowed

Husan Singh v. State

Himachal Pradesh HC6 Nov 2017CR.R/121/2006

Case brief

AI extract

What is this about?

Two criminal revision petitions challenging convictions for theft and mischief. The High Court found the lower courts' judgments perverse due to material contradictions regarding the date of information and statement recording. The High Court set aside the convictions and acquitted the petitioners.

What did the court decide?

Judgments of conviction and sentence set aside; petitioners acquitted of all charges; bail bonds discharged.

Husan Singh Vs State — Criminal Trial and Appeal | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 121 of 2006 a/w Cr. Revision No. 142 of 2006 Reserved on: 31.10. 2017. Date of decision: 06.11.2017

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Cr. Revision No. 121 of 2006 Husan Singh ...Petitioner. Versus State of Himachal Pradesh …Respondent. Cr. Revision No. 142 of 2006 Ramesh Kumar ...Petitioner. Versus State of Himachal Pradesh …Respondent.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting?¹ Yes. For the Petitioner(s) : Mr. D.N. Sharma, Advocate. For the Respondent : Mr. Neeraj K. Sharma, Dy. A.G. for the respondent.

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Tarlok Singh Chauhan, Judge

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Since common question of facts and law arise for consideration in both revision petitions, therefore, these were taken

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up together for consideration and are being disposed of by a common judgment.

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Whether the reporters of the local papers may be allowed to see the Judgment? Yes.

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2. The present revision petitions under Section 397 and 401

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of the Code of Criminal Procedure (for short the ‘Code’) are directed against the judgment passed by the learned Additional Sessions Judge, Simaur District at Nahan, on 31-08-2006 in Criminal Appeal No. 10-N/10 of 2002 whereby he dismissed the appeal filed by the appellants (Petitioner(s) herein) and affirmed the judgment passed by the learned Sub Divisional Judicial Magistrate, Rajgarh, Camp at Sarahan, District Sirmaur on 11.06.2002 in Cr. Case No. 13/2 of 2001 whereby the accused were convicted and sentenced to undergo simple imprisonment of six months each and to pay a fine of 500/- each for commission of offence punishable under Section 457 IPC read with Section 34 IPC and further sentenced to undergo simple imprisonment for a period of six months each and to pay a fine of 500/- each for the offence punishable under Section 380 IPC read with Section 34 IPC.

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The case of the prosecution is that FIR No. 9/01 (Ex.PW1/A) came to be registered on 22.01.2001 by the complainant Gulzari Lal (Ex.PW1) on the allegations that he was running a wholesale and retail Karyana shop at Saharan Bazar and had been noticing that there were certain pilferages in the stock. It was only when one Rajinder Kumar resident of Thakur Dwara apprised the complainant that the accused Husan Singh had sold

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packets of Biri “Sher Chhap” brand and packets of cigarettes to one Shri Vishal (Shopkeeper) and that the other accused Ramesh Kumar used to accompany and roam with the accused Husan Singh, that he lodged the aforesaid FIR.

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On the basis of the FIR, statements of the witnesses were recorded and accordingly both the accused were challaned for the offences punishable under the aforesaid sections. Both the accused were put to charges to which they pleaded not guilty and preferred trial.

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In order to prove its case prosecution examined as many as 12 witnesses and thereafter accused persons were examined under Section 313 of the Code wherein they denied the allegations against them, however, they did not lead any evidence in their defence.

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The learned trial Court after appreciating the evidence on record vide judgment dated 11.06.2002 convicted and sentenced the accused for committing the offences as per details mentioned above.

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Aggrieved by the judgment of conviction and sentence, the accused filed an appeal under Section 374 of Cr.P.C. before the learned Additional Sessions Judge, Sirmaur District at Nahan, which came to be dismissed and consequently the

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judgment rendered by the learned trial Magistrate was upheld, constraining the present petitioner(s) to file the instant appeal.

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I have heard the learned counsel for the parties and

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have gone through the records of the case.

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It is vehemently contended by Shri D.N. Sharma, learned Advocate that the story of the prosecution is full of contradictions, omissions, improvements and embellishments, which go to the root of the case and therefore the petitioner(s) deserves to be acquitted on this ground alone.

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On the other hand Shri Neeraj K. Sharma, learned Deputy Advocate General states that the contradictions as being pointed out by the petitioner(s) are minor and trivial in nature which do not affect the case of the prosecution and do not make out a ground for the Court the reject the evidence in entirety. Thus, the findings so recorded by the learned Courts below should not be interfered with particularly while exercising revisional jurisdiction.

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At the outset, it may be observed that the revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioners have been convicted and sentenced by examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are

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based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order.

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This Court has very limited revisionary jurisdiction as held

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by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh , decided on 13.9.2017, wherein

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the scope of criminal revision has been delineated in the following

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manner:-

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“In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon’ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

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In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon’ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145 , held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that “judicial discretion, as has often been said,

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means a discretion which is informed by tradition methodolised by analogy and discipline by system”.

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In Pathumma and another vs. Muhammad, AIR 1986, SC 1436 , the Hon’ble Apex Court observed that High Court “committed an error in making a re-assessment of the evidence” as in its revisional jurisdiction it was “not justified in substituting its own view for that of the learned Magistrate on a question of fact”.

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In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721 , the legal position regarding scope of revisional jurisdiction was summed up by the Hon’ble Supreme Court in the following terms:

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“It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope.”

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In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon’ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.

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In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon’ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.

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In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as under:

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“It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint.”

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In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon’ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when “there exists a manifest illegality in the order or there is a grave miscarriage of justice”.

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In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon’ble Supreme Court held as under:

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“In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”

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In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the

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Hon’ble Supreme Court held as under:

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“The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision

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filed by the respondent was allowed. In a sense, it is a nonspeaking judgment.”

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Having set out the legal parameters for exercise of revisional jurisdiction, it cannot be denied that in case findings recorded by the learned Courts below are perverse then obviously this Court would be entitled to interfere with the findings so recorded.

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Adverting to the plea of so-called contradictions, inconsistencies, embellishments and improvements in the prosecution case, it is a settled position of law that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and the other witnesses also make material improvements while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the

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witness and record a finding as to whether his deposition inspires confidence.

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It is the duty of the Court to separate chaff from the husk and to dredge the truth from the pandemonium of statements. It is but natural for human beings to state variant statements due to time gap and if such statements go to defeat the core of the prosecution, then such contradictions are material and the Court has to be mindful of such statements. (Refer: Tehsildar Singh vs. State of UP, 1959 SC 1012; Pudhu Raj & other vs. State 2012 (11) SCC 196 and Mahavir Singh vs. State of Madhya Pradesh, 2016 (10) SCC 220 ).

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The case in hand is a fit case wherein there are material exaggeration and contradiction which inevitably raises doubt, which is reasonable in normal circumstances and keeping in view the substratum of the prosecution case, this Court cannot infer beyond reasonable doubt that it was the appellants who had caused the pilferage and was thus liable for the punishment as has been imposed by the learned Courts below.

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It would be noticed that the very genesis of the case of the complaint is that complainant (PW1) came to know about the pilferage only when Rajinder Kumar (PW4) apprised him about the pilferage on 22.01.2001 and it was thereafter he lodged the FIR on

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22.01.2001 itself. However, in case, the statement of PW4 is adverted

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to he has categorically stated that he gave information to complainant (PW1) only on 24.01.2001 and not earlier to that. Thus, this contradiction goes to the roots of the prosecution case and strikes at its very foundation.

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That apart, it would be noticed that PW2 Bir Dutt stated that the statement of the accused under Section 27 of the Indian Evidence Act was recorded on 22.01.2001 and it was thereafter the recoveries were effected on 22.01.2001. Whereas, PW5 Subhash Garg is emphatic that the statements of the accused were recorded on 24.01.2001 and it was thereafter that the recoveries were effected on 24.01.2001. Even this contradiction in the statements as narrated above are of such magnitude that materially affect the trial and cannot be brushed aside as they hit the very foundation of the prosecution case.

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Unfortunately, both the Courts below have not at all cared to make note of such contradictions and therefore this Court has no hesitation to conclude that the judgments so rendered by them are perverse and cannot, therefore, withstand judicial scrutiny.

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In view of the above discussion, I find merit in these revision petitions and the same are allowed and the judgments of

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conviction and sentence passed by the learned trial Magistrate as also upheld by the learned Additional Sessions Judge are set aside. The petitioner(s) are acquitted from all the charges. Bail bonds, if

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any, furnished by the petitioner(s) are discharged.

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November 6, 2017 (Sanjeev)

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(Tarlok Singh Chauhan) Judge

Husan Singh v. State

Case brief

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Husan Singh v. State

Case brief

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