Ravinder Parkash vs State of Himachal Pradesh

Kuldip Singh, Judge

This revision is directed against the judgment dated 11.05.2005 passed by Additional Sessions Judge, Fast Track Court, Shimla, in Criminal Appeal No. 50-S/10 of 2004/2003, affirming judgment dated 18.08.2003 passed by Sub Divisional Judicial Magistrate,Theog, in case No. 27-2 of 1998. The petitioner has been convicted and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2,000/-and in case of default of payment of fine, he shall further undergo simple imprisonment for a period of two months for commission of offence punishable u/s 224 IPC.

The prosecution case, in brief, is that FIR No. 99/1997 was registered on 14.08.1997 against the petitioner u/s 307 IPC, Sections 25 and 27 of the Arms Act, at Police Station Chopal. The anticipatory bail application of the petitioner in that case was rejected by the Sessions Judge on 04.09.1997 and the petitioner was arrested. On 05.09.1997 the petitioner was produced before Judicial Magistrate Ist Class, Shimla, and his police remand was obtained up to 11.09.1997. The petitioner was being carried in Gypsy No. HP-39-0005, at about 10.15 p.m., when the police party and the accused reached about three curves ahead of Palace Hotel, Gajjedi, a truck came from front side and the Gypsy was slowed down. The petitioner took advantage of the slow speed of the Gypsy and managed to jump out and ran away. He was searched, but could not be traced, FIR No. 127 of 1997 was registered at Police Station, Theog. The petitioner was arrested on 07.01.1998 but was released on bail.

3.On completion of investigation, challan was filed against the petitioner for offence punishable u/s 224 IPC. The notice of accusation was put to the petitioner for offence punishable u/s 224 IPC, he pleaded not guilty and claimed trial. The prosecution has examined 5 witnesses. The statement of petitioner was recorded u/s 313 Cr.P.C. He denied the prosecution case. The petitioner led no evidence in defence. The Sub Divisional Judicial Magistrate on conclusion of trial convicted and sentenced the petitioner u/s 224 IPC as noticed above on 18.08.2003. The Additional Sessions Judge dismissed the appeal on 11.05.2005, hence present revision.

I have heard learned counsel for the petitioner and learned Assistant Advocate General for the respondent and have also gone through the record. It has been submitted on behalf of petitioner that the two Courts below have misconstrued and mis-interpreted the evidence on record and have erred in convicting and sentencing the petitioner for offence punishable u/s 224 IPC. It has been submitted that the petitioner has been acquitted in the case arising out of FIR No. 99/1997, registered at Police Station Chopal. In case this Court is not inclined to accept the plea of the petitioner, then lenient view may be taken while awarding the sentence to the petitioner. The learned Assistant Advocate General has submitted that two Courts below have concurrently held that the petitioner has committed offence punishable u/s 224 IPC. The conclusion of the two Courts below is based upon appreciation of evidence and reappreciation of the evidence is not possible in revision. He has submitted for dismissal of the revision.

PW-1 H.C. Geeta Ram has stated that he accompanied S.H.O.for carrying the petitioner in Gypsy No. HP-39-0005 which was being driven by Baldev Singh from Shimla to Chopal. They started from Theog to Chopal at about 10.00 p.m. A truck came from front side. At place ahead of Gajjedi, the Gypsy slowed down while giving pass to the truck. The petitioner during that process jumped from the Gypsy and ran away. They chased the petitioner, but could not succeed in apprehending him due to darkness. Thereafter, the case was registered. In cross-examination, he has stated that at that time petitioner was in his custody.

PW-2 constable Baldev Singh, driver, has stated that on 04.09.1997, he and S.H.O. Bidhi Chand started from Chopal to Shimla in Gypsy No. HP-39-0005. The bail application of the petitioner was rejected by Sessions Judge. They could not obtain the police remand of petitioner on 04.09.1997, they returned to Theog and again came to Shimla on 05.09.1997 and obtained police remand of petitioner from Court No. 1, Shimla and thereafter started from Shimla to Chopal. At about 10.00 p.m.near place Gajjedi, the petitioner jumped out of the Gypsy and ran away. In cross-examination, he has stated that at that time custody of the petitioner was with S.H.O.and Geeta Ram. PW-3 constable Ratti Ram has identified ''Chappals'' Ex. PA and Ex. PB of the petitioner.

PW-4 Bidhi Singh has stated that in the year 1997, he was posted as S.H.O., Police Station, Chopal. The petitioner was an accused in FIR No. 99/1997 dated 14.08.1997, Police Station, Chopal. The bail application of the petitioner was rejected by Sessions Judge in that case on 04.09.1997. The petitioner was arrested. On 05.09.1997, the petitioner was produced before Judicial Magistrate Ist Class, Shimla and his remand was obtained up to 11.09.1997. The petitioner was being taken in vehicle along with Head constable Geeta Ram. The petitioner was arrested and asked to sit in the Gypsy which was being driven by Baldev Singh. The petitioner jumped out of Gypsy at place near Gajjedi at about 10.15 p.m. He was searched, but could not be traced. Thereafter, FIR was got registered.

PW-5 H.C. Ram Singh has prepared spot map Ex. PW5/A. The petitioner in his statement u/s 313 Cr.P.C. has denied the prosecution case, he has not taken any specific defence. It emerges from the tenor of cross-examination of the prosecution witnesses that petitioner has projected the defence that he was not in custody when he allegedly jumped from the Gypsy. PW1 to PW4 have stated that the bail application of petitioner in FIR No. 99/1997, registered at Police Station Chopal, was rejected by learned Sessions Judge on 04.09.1997 and thereafter the petitioner was arrested. The police obtained police remand of the petitioner in that case up to 11.09.1997 and he was being taken in Gypsy from Shimla to Chopal when he jumped out of Gypsy at place near Gajjedi at about 10.15 p.m.on 05.09.1997.

9.It has been proved that when petitioner jumped out of Gypsy at that time he was in lawful custody of the police party which was taking him after obtaining remand in Gypsy No. HP-39-0005 from Shimla to Chopal. The petitioner was re-arrested on 30th December, 1997, in FIR No. 99/1997 and produced in the Court. He was also arrested in the present case in FIR No. 127/1997 and was released on bail on 07.01.1998. The two Courts below have rightly appreciated the material on record. It cannot be said that the conclusion drawn by the two Courts below from the evidence is perverse or the conclusion of the two Courts below in convicting and sentencing the petitioner is based on inadmissible evidence. Thus, the conviction of the petitioner u/s 224 IPC cannot be said to be wrong and illegal.

However, insofar as the sentence imposed by the two Courts below is concerned, the same appears to be excessive. The petitioner has already been acquitted in FIR No. 99/1997, Police Station, Chopal. The present case was registered about 14 years ago, during this period the petitioner has faced the trial, appeal and revision. Thus, in the facts and circumstances of the case,I am of the view that ends of justice would be met with if the petitioner is sentenced to pay a fine of Rs. 2,000/-and in default of payment of fine, he shall undergo simple imprisonment for a period of two months for commission of offence punishable u/s 224 IPC. The impugned judgment to this extent is liable to be modified.

In view of above discussion, the revision is partly allowed. The conviction of the petitioner for offence punishable u/s 224 IPC as held by the trial Court and upheld by the learned Additional Sessions Judge is upheld, but sentence of the petitioner for offence punishable u/s 224 IPC is modified and petitioner is sentenced to pay a fine of Rs. 2,000/-and in default of payment of fine, he shall undergo simple imprisonment for a period of two months. The revision petition is disposed of in the above terms.