Murari Lal vs State of HP

By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Presiding Officer, Fast Track Court, Mandi, District Mandi in Criminal Appeal No. 74/2009 dated 5.6.2010 vide which learned appellate court while dismissing the appeal filed by the present petitioner has upheld the judgment of conviction passed by the Court of learned Judicial Magistrate 1st Class, Court No.1 Sundernagar, Distt. Mandi, in Police Challan No. 155-1/2003 dated 18.9.2009, whereby learned trial court had convicted the present petitioner along with accused No.1 Satish Kumar guilty for commission of offences punishable under Sections 452, 323 and 506 IPC and had sentenced him to undergo two years rigorous imprisonment under Section 452 IPC and also to pay fine of Rs. 3,000/- and further to undergo three months rigorous imprisonment under Section 323 IPC and to suffer simple imprisonment for one year under Section 506 IPC.

Brief facts necessary for adjudication of the present case are that as per the prosecution a statement of Sh. Amar Singh was recorded under Section 154 Cr.P.C. to the effect that he was working as Operator in the J.C.B. Machine of Mohinder Singh Thakur and that on 5.11.2002 at around 6:30 p.m. when he had reached near his house he saw accused Satish Kumar, Murari Lal and other boys beating his younger brother Rakesh Kumar. As per the complainant when he intervened to save his brother from the clutches of accused persons, accused persons started beating him also and on this, both he as well as his brother ran towards their house and accused persons also trespassed into their house and gave beatings to him as well as to his younger brother with fist blows, kicks mercilessly. As per the complainant he also lost an amount of Rs. 4500/-. Both he and his brother sustained injuries in the said incident which was witnessed by Bhagat Ram and his (complainant''s) mother Narvada Devi. On the basis of the statement of complainant, FIR Ext. PW6/A was registered against accused persons. Investigation was carried out, spot map was also prepared. One sharp edged weapon "KHUKHARI" was taken into possession vide memo Ext. PW1/B in the presence of witnesses. MLC of Rakesh Kumar as well as of complainant were also obtained. Statements of the witnesses were recorded under Section 161 of the Cr.P.C.

After completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused for commission of offences punishable under Sections 452, 323 and 506 read with Section 34 IPC, accordingly they were charged for commission of the said offences, to which they pleaded not guilty and claimed trial.

Learned trial court found accused Satish Kumar and Murari Lal guilty of having committed offences punishable under Sections 452, 323 and 506 IPC, however, it was held by learned trial court that offences against accused Jitender Kumar and Roop Lal could not be established. While convicting the present petitioner as well as Satish Kumar, it was held by learned trial court that the complainant as PW1 had categorically stated the time, date and place when accused Satish Kumar and Murari Lal gave beatings to him as well as his brother, though he could not state the name of other co-accused. Learned trial court further held that the complainant also mentioned in his statement about the accused persons having entered his house and the factum of the said occurrence having been witnessed by his Mother Narvada Devi and other villagers. Learned trial court held that the complainant in his cross-examination had categorically stated that he identified accused Satish Kumar though on account of the darkness he could not identify other accused persons. Learned trial court further held that even PW2 identified accused Satish Kumar and PW2 (brother of the complainant) also stated that accused persons gave beatings to him and in this process they had also entered their house when their parents and his brother came to the spot. Learned trial court also took note of the fact that PW3 (mother of the complainant) had also stated that Satish Kumar and other persons gave beatings to her son and she clarified that accused persons also entered inside the room. Learned trial court held that the depositions of PW1, PW2 and PW3 inspire confidence that accused persons had entered the house of complainant with the criminal intent to give beatings to the complainant as well as his brother. Learned trial court also held that complainant, his brother as well as PW3 (their mother) had clearly identified accused Satish Kumar and Murari Lal, whereas identification of other accused was doubtful. On these bases it was held by learned trial court that case under Sections 452, 323 and 506 stood established/proved against accused Satish Kumar and against present petitioner. Learned trial court held that both complainant as well as his brother was medically examined in between 9:20 and 9:30 p.m. on the same date on which the alleged occurrence had taken place at 6:30 p.m. Learned trial court held that there was no reason that complainant and his brother would cause injuries to themselves without any reason. Learned trial court also took note of the fact that in cross-examination of the doctor defence had put a query as to whether injury could be caused with sharp edged weapon i.e. Khukhari and the said suggestion was denied in negative by the doctor. On these bases it was held by learned trial court that it stood proved that Satish Kumar and Murari Lal were guilty of having committed offences punishable under Sections 452, 323 and 506 IPC.

In appeal, the findings so returned by learned trial court were upheld by learned appellate court. It was held by learned appellate court that it did not found any infirmity whatsoever in the evidence of PW1, PW2 and PW3 and it was not possible to disbelieve them especially in view of the fact that their evidence was supported by medical evidence. Learned appellate court also held that though PW3 was the mother of the complainant and other injured i.e. Rakesh Kumar, but her evidence could not be suspected merely on the said ground. Learned appellate court also held that it was not believable that PW3 who was the mother of injured would have spared the real culprit and have falsely implicated the present petitioner. It was further held by learned appellate court that it stood established from the evidence of PW1, PW2 and PW3 as well as medical evidence on record that appellant and Satish Kumar had given beatings to the injured by entering into their house and had also threatened them. On these bases it was held by learned appellate court that it did not find any infirmity, illegality or irregularity in the conviction part of the judgment passed by learned trial court against present petitioner Murari Lal and accused Satish Kumar. Learned appellate court also held that as far as sentence part of the judgment passed by learned trial court was concerned, learned trial court had not given any special reason for not extending the benefit of probation to the present petitioner. Learned appellate court also held that in fact question of probation appears to have not been considered by learned court so far as present petitioner Murari Lal was concerned. On these basis learned appellate court while upholding the conviction part of the judgment set aside the sentence qua present petitioner and remanded back the case to the learned trial court with a direction to consider whether or not the present petitioner was entitled to the benefit of probation under Sections 3 and 4 of the Probation of Offender Act or Section 360 Cr.P.C and thereafter to pass appropriate orders. However, learned appellate court upheld the conviction and sentence qua accused Satish Kumar who did not challenge the judgment passed by the learned trial court.

Feeling aggrieved by conviction, the petitioner Murari Lal has filed the present revision petition.

I have heard learned counsel for the parties and have also gone through the records of the case and have also perused the judgments passed by learned Courts below.

In the present case both the learned courts below have returned the findings of conviction in favour of present petitioner. Both the learned courts below found the statement of the complainant as well as his brother PW2 and their mother PW3 to be cogent, reliable and trustworthy. Records demonstrate that the incident in fact occurred at around 6:30 p.m. and the FIR was lodged at 9:00 p.m. itself on the same day after which the medical of the complainant as well as his brother was got conducted. Statement of the complainant recorded under Section 154 Cr.P.C. further demonstrates that names of accused Satish Kumar as well as Murari Lal stood mentioned in the said statement recorded under Section 154 Cr.P.C. as well as in the FIR which was subsequently recorded at Police Station Sundernagar at 9:00 p.m. itself on the same date. In this background now when we peruse the statement of complainant as well as that of his brother and mother they have in unison stated that the present petitioner along with Satish Kumar and two others persons had physically assaulted firstly brother of the complainant and thereafter complainant when he tried to intervene and accused had also entered the house of the complainant in the course of physically assaulting the complainant and his brother. Therefore, it cannot be said that the findings returned to the said effect by learned trial court as well as by learned appellate court are either perverse or are not borne out from the records of the case. The contention of the learned counsel for the petitioner that none of the prosecution witnesses clearly identified the accused nor they could have had identified the accused as it was pitch dark at 6:30 p.m. is without merit because I have already mentioned above that PW1, PW2 and PW3 have clearly pointed out to the complicity of the petitioner in the commission of the crime and whereas on one hand there is no reason to disbelieve their testimonies which this Court finds to be cogent, reliable and trustworthy, on the other hand the respondent has not satisfactorily explained to the court as to why said witnesses would depose falsely against the accused.

The contention of learned counsel for the petitioner that the judgment of conviction passed by both the learned courts below are not sustainable as no independent witness was examined by the prosecution is also without any merit because when the witnesses examined by the prosecution have proved and corroborated the case of the prosecution beyond all reasonable doubt, it is not a legal necessity that such proof and corroboration of the case has to be further corroborated always by an independent witness. The contention of the learned counsel for the petitioner that there are contradictions in the statements of PW1 and PW2 qua the place of incident is also without any merit, as both these witnesses have deposed that initially Rakesh Kumar was being beaten by accused outside their house i.e. the house of the complainant and when complainant intervened, then accused started beating him also and in the said process when complainant and his brother ran inside their house to save themselves from the clutches of accused, the accused ran behind them inside the house and gave beatings to them there also. The factum of the injured having received injuries is also duly substantiated from the medical evidence on record which includes the statement of Dr. Anup Bhanu who entered the witness box as PW5.

Therefore, in view of the discussion held above, in my considered view no interference is warranted in the judgments of conviction passed against the present petitioner by both the learned courts below. Even otherwise in exercise of its revisional jurisdiction this Court is not to re-appreciate the evidence. The view which has been taken by both the learned courts below is a possible view which is duly borne out from the records of the case and therefore also the same does not warrants any interference by this Court in exercise of its revisional jurisdiction. Now, I will deal with the alternative prayer made by learned counsel for the petitioner on the quantum of sentence. It was submitted by learned counsel for the petitioner that this court may consider sympathetically upon the quantum of sentence imposed upon the petitioner keeping in view the fact that the sentence so imposed by learned trial court and affirmed by learned appellate court is not in consonance with the gravity of the offence said to have been committed by the present petitioner. After hearing learned counsel for the petitioner on this issue and taking into consideration that fact that the petitioner is undergoing the trauma of trial for more than 15 years, it will be in the interest of justice in case the sentence imposed upon the petitioner under Section 452 IPC by learned trial court is modified. Accordingly, the sentence so imposed upon the present petitioner by learned trial court under Section 452 IPC to suffer rigorous imprisonment for 02 years is modified from 02 years to 01 year, whereas the fine imposed upon the petitioner shall remain the same. Other sentences imposed upon the petitioner by learned trial court stand affirmed. With the said modification in the quantum of sentence imposed upon the petitioner, the present petition stands disposed of.

Pending miscellaneous application(s), if any, also stands disposed of.