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.
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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
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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
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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.
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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.
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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 the14/11/2018 22:57:23 :::HCHP
7order 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 itwas 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
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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 ofany 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 theMagistrate as well as the Sessions Judge in appeal, unless any
glaring feature is brought to the notice of the High Court whichwould 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.”
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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
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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
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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 withdeath 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 himon 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 orwithout 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 theoffender 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
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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.
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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
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