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Dharambir vs State Of Haryana And Anr on 8 August, 2018

CRR-125-2013 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRR-125-2013
Date of decision:-8.8.2018

Dharambir
…Petitioner

Versus

State of Haryana and another

…Respondents

CORAM: HON’BLE MR.JUSTICE H.S.MADAAN

Present: Ms.Deepa Jain, Advocate for
Mr.Yash Dev Kaushik, Advocate
for the petitioner.

Mr.Gaurav Bansal, AAG, Haryana.

****

H.S. MADAAN, J.

This revision petition is directed against the judgment dated

20.12.2012 passed by learned Additional Sessions Judge, Palwal vide

which he had dismissed an appeal against judgment of conviction dated

4.11.2011 and order of sentence dated 7.11.2011 passed by Additional

Chief Judicial Magistrate, Palwal, vide which he had convicted accused

Dharambir for the offences under Sections 323 and 354 IPC and

sentenced him to undergo simple imprisonment for a period of three

months and to pay a fine of Rs.1,000/- and in default thereof, to further

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undergo simple imprisonment for fifteen days for the offence under

Section 323 IPC and to undergo simple imprisonment for a period of six

months and to pay a fine of Rs.1,000/- and in default thereof, to further

undergo simple imprisonment for fifteen for the offence under Section

354 IPC. Both the sentences were ordered to run concurrently.

The accused-convict – Dharambir, who is the petitioner

before this Court prays that the revision be accepted, the impugned

judgment of his conviction and order of sentence passed by Additional

Chief Judicial Magistrate, Palwal and judgment in appeal passed by

Additional Sessions Judge, Palwal be set aside and he be acquitted of the

charge framed against him.

Briefly stated, the facts of the case as per the prosecution

story are that the complainant Pushpa Devi wife of Sh.Ram Parshad,

resident of Nai Basti, Samshabad, Tehsil Palwal, District Faridabad had

brought a criminal complaint under Sections 148, 323, 452, 354, 506, 341

504 read with Section 149 IPC against the accused Dharambir,

Bhawani Shankar, Mahesh Chand, Mukesh, Smt.Mamta and Om Dutt on

the allegations that her husband Ram Parshad has been working as a

Teacher at Hindu Senior Secondary School, Ballabgarh; that on 11.8.2004

at about 8:00/8:30 p.m. when she was all alone at home, then accused

Dharambir entered her room with wrong intention; that Bhawani Shankar

also followed him; that both of them started doing obscene acts with her;

that they hugged her; that Dharambir caught hold of her breast, whereas

Bhawani Shankar put her on the bed after pulling her hairs; that in the

meanwhile, her husband Ram Parshad arrived at the spot. According to

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the complainant, she had raised noise, as such, accused ran away from the

spot. However, after some time accused Dharambir and Bhawani Shankar

accompanied by their co-accused, namely, Mahesh Chand, Mukesh,

Mamta and Om Dutt again reached their home and they started assaulting

her husband; that at that time Dharambir and Bhawani Shankar were

armed with iron rods, Mukesh with a knife, Mamta and Om Dutt with

sticks; that Bhawani Shankar had given an iron rod blow to Ram Parshad

hitting him on head, Dharambir gave an iron rod blow hitting Ram

Parshad on his hands, Om Dutt and Mukesh gave stick blows to Ram

Parshad; that when the complainant intervened, then Dharambir gave an

iron rod blow to her hitting her on head, Bhawani Shankar gave an iron

rod blow hitting her on legs, whereas Mukesh and Mamta took her in a

grass; that the complainant and her husband were given severe beatings;

that Mukesh had put a knife on the neck of Ram Parshad threatening to

kill him. According to the complainant, she and her husband raised noise,

hearing which, another person by the name of Ram Parshad and Parmod

came there and rescued them from the clutches of accused; that the

accused left the spot giving threat to kill the complainant and her

husband; that subsequently the complainant and her husband went to

Police Post Camp, Palwal but no action was taken. Therefore, the

complainant had filed a private complaint in the Court of law.

After recording the preliminary evidence, the accused were

ordered to be summoned to face trial under Sections 323, 354, 452 and

506 read with Section 149 IPC vide order dated 15.4.2010. Subsequently,

the complainant made a statement in the Court on 11.6.2011 that she did

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not want to prosecute Bhawani Shankar, as such, proceedings against him

were dropped.

During the course of pre-charge evidence, the complainant

Pushpa Devi got her own statement recorded as CW1 and her husband

Ram Parshad has appeared as CW2. They placed on record copy of

medico legal report of Ram Parshad as Mark-A and copy of medico legal

report of Pushpa as Mark-B.

After hearing arguments, charge for the offences under

Sections 323, 354 and 506 IPC was framed against accused Dharambir,

whereas charge for the offences under Sections 323 506 read with

Section 34 IPC was framed against the remaining accused, to which, they

pleaded not guilty and claimed trial.

During post charge evidence, accused subjected CW1 Pushpa

Rani, CW2 Ram Parshad to further cross-examination, whereas the

complainant had examined CW3 Dr.Tek Chand, who proved copy of

medico legal report of Ram Parshad as Ex.CW3/A and copy of medico

legal report of Smt.Pushpa as Ex,CW3/B.

With that the post charge evidence of the complainant stood

closed.

Statements of accused were recorded under Section 313

Cr.P.C., in which all the incriminating circumstances appearing against

them were put to them but they denied the allegations contending that

they are innocent and had been falsely involved in this case.

In defence evidence, the accused tendered copy of

compromise dated 24.9.2004 as Ex.D1 and copy of judgment dated

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15.2.2011 as Ex.D2.

After hearing arguments, learned Additional Chief Judicial

Magistrate, Palwal acquitted accused Mahesh, Mukesh, Mamta and Om

Dutt, whereas convicted and sentenced the accused Dharambir as

mentioned supra.

Feeling aggrieved, the complainant Pushpa Devi had filed an

appeal against acquittal of Mahesh, Mukesh, Mamta and Om Dutt,

whereas Dharambir accused convict had filed appeal with regard to his

conviction and sentence. Both the appeals filed by the complainant

Pushpa Devi and accused Dharambir were dismissed by learned

Additional Sessions Judge, Palwal vide a consolidated judgment dated

20.12.2012, which left petitioner – accused Dharambir aggrieved and he

has filed the present revision petition.

I have heard learned counsel for the petitioner-accused-

convict and learned Assistant Advocate General for the State of Haryana

besides going through the record and I find that there is no merit in the

revision petition.

In the instant case, the complainant has been able to prove

her case against Dharambir by bringing sufficient oral and documentary

evidence, in the form of her own statement appearing as CW1 and that of

her husband as CW2. Both of them deposed in a natural and convincing

manner as regards accused Dharambir. Although both these witnesses

were cross-examined at length on behalf of the accused but they stuck to

their guns and could not be shattered on any material part. A few minor

contradictions and variations in their statements do not go to the root of

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matter since those are bound to occur due to difference in power of

perception, observation and retention of events in various persons and so

also due to lapse of memory due to passage of time etc. The fact cannot

be lost sight of that different persons have got variable memorization of

the events. Merely because a witness slipped at a few places regarding the

minute details does not go to put a question mark over his credibility and

truthfulness. These minor variations and contradictions rather go to show

that the witnesses have deposed in a natural and truthful manner unlike

tutored witnesses who depose in a parrot like manner. I find presence at

the spot of both the witnesses to be likely and probable and account given

by both of them to be worthy of reliance.

No satisfactory or plausible explanation could be given by

Dharambir for his alleged false implication in this case. Further the

complainant Pushpa Devi would not have invited social stigma on her

name without any rhyme or reason. Since the incident had happened at

the house of the complainant, the complainant and her husband were the

best witnesses to depose in that regard. The medical evidence duly

corroborates the ocular evidence.

The prosecution had successfully proved its charge against

the accused beyond the shadow of reasonable doubt. The courts below

were justified in reaching such conclusion. The conviction of the accused

for such offences does not call for any interference.

The learned counsel for the revision petitioner has prayed

that sentence of the accused – convict be reduced. The Courts below have

been quite lenient with the petitioner with regard to the quantum of

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sentence imposed upon him. No scope for reduction in the sentence is

made out keeping in view the nature of allegations against him. For that

reason, no leniency can be shown to the accused – convict. The request in

that regard is declined.

In view of the above, I find no illegality or infirmity in the

judgments passed by the Courts below, as regards the conviction and

sentence part, those are upheld and revision petition is found to be

without any merit and is dismissed accordingly. C.J.M. Palwal to issue re-

arrest warrants of the Revisionist to make him undergo the remaining

sentence.

8.8.2018 (H.S.MADAAN)
Brij JUDGE

Whether reasoned/speaking : Yes/No

Whether reportable : Yes/No

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