SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Bhagat Ram And Anr vs Sanjay Kumar on 13 November, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 11/2011 along with

.

Cr. Revision No. 12 of 2011

Reserved on: 5.11.2018.

Date of decision: 13.11.2018.

Cr. Revision No.11/2011

Bhagat Ram and anr. …Petitioners

Versus

State of Himachal Pradesh

Cr. Revision No.12/2011

Sanjay Kumar
r to …Respondent.

…Petitioner

Versus

State of Himachal Pradesh …Respondent.

Coram

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

Whether approved for reporting?1 No
For the Petitioner(s) : Mr. Vinay Thakur, Advocate.

For the Respondent : Mr. Sudhir Bhatnagar, Addl. Advocate
General, with Mr. Bhupinder Singh, Dy.

Advocate General.

Tarlok Singh Chauhan, Judge

Since common questions of law and facts arise for

consideration in these petitions, the same were taken up

together for hearing and are being disposed of by a common

judgment.

1

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

14/11/2018 22:57:23 :::HCHP
2

2 These criminal revision petitions have been filed

against the judgments passed by the learned Sessions Judge,

.

Kangra at Dharamshala, H.P. on 7.1.2011 whereby he affirmed

the judgments passed by the learned Judicial Magistrate 1 st

Class, (II), Dehra, H.P. on 1.7.2005 and 28.8.2006.

3 Brief facts of the case are that PW2 complainant,

Man Chand got registered an FIR against the accused

persons/petitioners, namely,

to Sanjay Kumar, Bhagat Ram and

Hukmi Devi on the ground that his younger daughter, PW3

Ranjana Devi (victim) was married to Sanjay Kumar on

14.2.1997. The relations between them were cordial for about

one month after marriage and whereafter, the complainant’s son,

who works in Delhi, informed the complainant that Ranjana Devi

is being ill-treated by her parents-in-laws (petitioners) and

because of that, she had left her matrimonial house. He stated

that thereafter, Ranjana Devi was again sent to her in-laws

house, however, on 31.5.1997, elder son of the complainant

informed telephonically that Ranjana Devi had again been

beaten up by her parents-in-law constraining her to leave her in-

laws house. On hearing this, the complainant reached the

house in the night and came to know that Ranjana Devi was at

her maternal uncle’s house from where she was called. It was

then that the complainant came to know that not only were her

14/11/2018 22:57:23 :::HCHP
3

parents-in-law giving beatings to her, but her father-in-law had

committed indecent acts and offered teasement for bringing less

.

dowry. Thereafter, a compromise was entered into between the

parties, yet despite that on 9.6.1997, the complainant received

information that Ranjana Devi was again beaten up by her

parents-in-law constraining the complainant to take assistance

of the police, who got her medically examined and also got

conducted her x-rays. Thereafter, an FIR came to be registered

against the petitioners under Sections 498-A, 323 read with

Section 34 IPC.

4 The challan was presented in the court of learned

Additional Chief Judicial Magistrate, Dehra on 6.9.1997 and the

petitioners were made to stand trial for the aforesaid offences.

The petitioners pleaded not guilty and claimed trial.

5 After recording the statements of the prosecution

witnesses, the statements of the petitioners under Sections 313

Cr.P.C. were recorded in which they denied the incriminatory

evidence led by the prosecution. However, they did not choose

to lead any evidence in defence.

6 The learned trial Court on considering the evidence

on record, vide judgment dated 1.7.2005 convicted and

sentenced the petitioner (Bhagat Ram) to undergo 2 years

rigorous imprisonment with a fine of Rs.1000/- for offence

14/11/2018 22:57:23 :::HCHP
4

punishable under Section 498-A IPC, 4 months rigorous

imprisonment for offence punishable under Section 323 IPC and

.

2 years rigorous imprisonment for offence punishable under

Section 354 IPC and in default of payment of fine, to further

undergo simple imprisonment for 3 months, whereas petitioner

(Hukmi Devi) was convicted and sentenced to undergo 2 years

rigorous imprisonment with a fine of Rs.1000/- for offence

punishable under

Section 498-A IPC, 4 months

imprisonment for offence punishable under Section 323 IPC and

in default of payment of fine, to further undergo simple
rigorous

imprisonment for 3 months, while learned trial court vide

judgment dated 28.8.2006 convicted and sentenced the

petitioner (Sanjay Kumar) to undergo 2 years rigorous

imprisonment with a fine of Rs.1000/- for offence punishable

under Section 498-A IPC, 4 months rigorous imprisonment for

offence punishable under Section 323 IPC and in default of

payment of fine, to further undergo simple imprisonment for 3

months. All the sentences were ordered to run concurrently.

7 In the appeal, learned Sessions Judge affirmed the

sentence so passed by the learned trial court.

8 Aggrieved by the judgments rendered by the learned

Courts below, the petitioners have filed the instant revision

petitions.

14/11/2018 22:57:23 :::HCHP
5

9 It is vehemently argued by Mr. Vinay Thakur, learned

counsel for the petitioners that the findings recorded by the

.

learned Courts below are perverse and, therefore, deserve to be

set-aside and in any case the sentence, as imposed, is harsh

and, therefore, a lenient view deserves to be taken in this case.

Whereas, the learned Additional Advocate General, would

support the impugned judgments by contending that since the

petitioners are the accused of a crime against the women and

the same has been duly dealt with by utmost sensitivity and,

therefore, call for no interference.

10 I have heard the learned counsel for the parties and

have also gone through the records of the case.

11 However, before I deal with the contentions put-forth

by the learned counsel for the petitioners, it would be necessary

to delineate the scope and power of this Court while dealing with

revision petition of the instant kind.

12 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.

14/11/2018 22:57:23 :::HCHP
6

13 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, means a discretion which is informed by tradition

methodolised by analogy and discipline by system”.

14 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”.

15 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:

“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

14/11/2018 22:57:23 :::HCHP
7

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.”

16 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.

17 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.

18 In Ramu alias Ram Kumar and others vs.

Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as

under:

“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.”

19 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

14/11/2018 22:57:23 :::HCHP
8

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”.

20 In State of Kerala vs. Puttumana Illath

Jathavedan Namboodiri (1999) 2 SCC 452, the Hon’ble

Supreme Court held as under:

“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.”

21 In State of A.P. vs. Rajagopala Rao (2000) 10

SCC 338, the Hon’ble Supreme Court held as under:

“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 filed by the respondent was
allowed. In a sense, it is a non-speaking judgment.”

14/11/2018 22:57:23 :::HCHP
9

22 Bearing in mind the aforesaid exposition of law and

.

restricted scope of revisional jurisdiction, I have proceeded to

analyze in brief the evidence available on record.

23 The material witness in this case is the victim

herself, who appeared as PW3 and deposed that after fifteen

days or a month after her marriage with petitioner Sanjay Kumar,

all the petitioners started teasing her for bringing less dowry. In

cross-examination, she admitted that the instant FIR was got

registered after intervention of the Deputy Commissioner. She

further admitted that there had been efforts of compromise

between her and the petitioners, but to no avail. She admitted

that she left her in-laws house on 30.5.1997, but that, according

to her, was out of compulsion. She denied that she often left the

matrimonial house as she did not like her husband and wanted to

marry some other person.

24 The testimony of the victim is not only cogent and

reliable, but is further supported by the testimony of the

complainant, who is none other than her father, who while

appearing as PW2, categorically stated that despite his best

efforts, the petitioner and his family members were not treating

his daughter properly and would often demand dowry and when

such demand was not met, they would beat her up. Even, other

14/11/2018 22:57:23 :::HCHP
10

witnesses examined by the prosecution in this case have fully

supported the prosecution case.

.

25 The evidence has been discussed threadbare and

thereafter appreciated by the learned courts below and there is

no glaring feature brought to the notice of this Court, which

otherwise tantamounts to gross miscarriage of justice so as to

compel this Court to re-appreciate the evidence.

26

impugned judgments of

Having said so, I really do not find any merit in these

revision petitions so as to call for any interference with the

conviction and sentence,however,

learned counsel for the petitioners would submit that the

parties at one stage entered into a compromise but since the

victim herself has got remarried and her whereabouts are not

known, therefore, the same could not be given effect to. In

addition thereto, the petitioners would urge that FIR in the

instant case was registered more than two decades back and

the petitioners have already faced the pangs and suffered agony

of protracted trial. Therefore, a lenient view may be taken or else

they shall be stigmatized in case they are sentenced.

27 Section 4 of the Probation of Offenders Act empowers

the Court to release the convict on entering into a bond, with or

without sureties, on probation when he/she is found guilty of

committing any offences not punishable with death or

14/11/2018 22:57:23 :::HCHP
11

imprisonment for life. Relevant portion of Section 4 is reproduced

as under:-

.

“4.Power of court to release certain offenders on
probation of good conduct.-(1) When any person is found
guilty of having committed an offence not punishable with

death or imprisonment for life and the court by which the
person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence
and the character of the offender, it is expedient to release him

on probation of good conduct, then, notwithstanding anything
contained in any other law for the time being in force, the court
may instead of sentencing him at once to any punishment
direct that he be released on his entering into a bond, with or

without sureties, to appear and receive sentence when called

upon during such period, not exceeding three years, as the
court may direct, and in the meantime to keep the peace and
be of good behavior;

Provided that the court shall not direct such release of

an offender unless it is satisfied that the offender or his surety,
if any, has a fixed place of abode or regular occupation in the
place over which the court exercises jurisdiction or in which the

offender is likely to live during the period for which he enters
into the bond.”

28 For exercising the power which is discretionary, the

Court has to consider various circumstances of the case, like the

nature of the offence and the character of the offender. While

considering the nature of the offence, the court must take

realistic view of the gravity of the offence, the impact which the

offence had on the victim, the benefit available to the accused

under this provision is subject to the limitation embodied in the

provision as is evident from the use of the word “may” which

14/11/2018 22:57:23 :::HCHP
12

clearly indicates that the discretion vested with the courts

whether to release the offender in exercise of the power under

.

Sections 3 or 4 of the Act having regard to the nature of the

offence and character of the offender and over all the

circumstances of the case. The powers under Section 4 of the Act

vest with the court when any person is found guilty of the

offence committed not punishable with death or imprisonment

for life. This power can be exercised by the courts while finding

the person guilty and if the courts come to a conclusion by

considering the circumstances of the case including the nature of

the offence and the character of the offender, benefit should be

given to the accused. Obviously, this power is available and can

be exercised by the court even at the appellate stage.

29 Having regard to the rival contentions of the learned

counsel for the parties, and having gone through the

circumstances emanating from the record and after in depth

consideration of the entire matter, I find no legal impediment for

considering the case of the petitioners for grant of probation,

particularly, in light of the fact that the incident in this case (i)

pertains to the year 1997 and (ii) the petitioner has already

faced the pangs and suffered agony of protracted trial and

appeal/revision for more than two decades.

14/11/2018 22:57:23 :::HCHP
13

30 Even the modern trend of penology also leads to the

reformation of the offender so as to make him/her useful citizen

.

of the society. No useful purpose is otherwise going to be

achieved by again sending the petitioners to jail.

31 Accordingly, let the Probation Officer of the area

concerned where the petitioners permanently reside place before

this Court his report(s) qua the antecedents of the petitioners on

or before next date of hearing.

List on 24.12.2018.

13th November, 2018 (Tarlok Singh Chauhan)
(pankaj) Judge

14/11/2018 22:57:23 :::HCHP

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

Web Design BangladeshWeb Design BangladeshMymensingh