IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Revision Petition No. 157/2003 Dharmi Chand Vs. State of Rajasthan & Others. DATE OF ORDER: 12.07.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Ravi Kasliwal, for the petitioner. Ms. Rekha Madnani, Public Prosecutor, for the Respondent No. 1-State. Mr. Gaurav Gupta, for the Respondents No. 2 to 7. BY THE COURT:
Heard learned counsel for the parties.
2. Complainant-petitioner has preferred this revision petition challenging impugned judgment and order dated 29.10.2002 passed by Additional District and Sessions Judge(Fast Track), Beawar in Criminal Case No. 6/2002(27/96), whereby accused-respondents were acquitted from the offences under Sections 148, 341 and 307/149 I.P.C. The complainant is also aggrieved with the impugned judgment and order, whereby although accused-respondents were convicted under Section 325/149 I.P.C., but they were not awarded sentence of imprisonment and they were given benefit of Probation of Offenders Act.
3. Brief facts of the case are that on 14.05.1996, S.H.O., Vijay Nagar received a telephonic message that in industrial area, there was a quarrel taking place with Dharmi Chand Master. The name of informant was disclosed as Dinesh. On the basis of this information, Rapat No. 493 was registered at 8.30 P.M. and S.H.O. proceeded for the place of incident. The statement of injured Dharmi Chand, who was admitted in hospital, was recorded, wherein it was stated that he and his brother Ghanshyam were coming from their agricultural field and in the way, the accused persons(named in Parcha Bayan) stopped them and inflicted injuries on their person. On the basis of Parcha Bayan, the case was registered under Sections 147, 148, 341, 323 and 307 I.P.C. After completion of investigation, the Police submitted a charge sheet in the Court of Judicial Magistrate, First Class, Vijay Nagar, who committed the case for trial to the Court of Additional Sessions Judge, Beawar.
4. The trial court framed charge against the accused-persons for the offences under Sections 147, 148, 323, 341, 325/149 and 307/149 I.P.C. Accused persons denied charges and claimed trial. In support of the case, the prosecution examined P.W. 1 to P.W. 14 and also produced documentary evidence. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C. In defence, D.W. 1 and D.W. 2 were examined.
5. After hearing the arguments and examining the record, learned trial court acquitted the accused persons from offences under Sections 148, 341 and 307/149 I.P.C. Accused persons Panchu, Chetan, Ramdev, Shri Ram and Deva were also acquitted from charge under Section 323 I.P.C. However, learned trial court convicted the accused persons Panchu, Ramdev, Deva, Chetan and Shri Ram under Sections 147 and 325/149 I.P.C. and accused Dharma under Sections 323, 147, 325/149 I.P.C. Learned trial court gave the benefit of Probation of Offenders Act to accused Dharma and also passed an order directing him to pay compensation of Rs. 5,000/- to the injured. Similarly, remaining five accused persons were also granted benefit of Probation of Offenders Act and each of them was directed to pay a sum of Rs. 3,000/-, total Rs. 15,000/- as compensation to injured.
6. Submission of learned counsel for the petitioner is that injured Dharmi Chand sustained as many as 14 injuries, including four injuries on the head and the accused persons were convicted with the aid of Section 149 I.P.C., therefore, intention to commit murder was clearly proved and trial court committed an illegality in acquitting them from the charge under Section 307/149 I.P.C. He further argued that in the present case, four doctors were examined on behalf of the prosecution namely P.W. 11 Dr. G.S. Nawal; P.W. 13 Dr. V.C. Kasliwal; P.W. 7 Dr. Anil Kumar Soni and P.W. 9 Dr. Pushpa Gupta and from their statements, it is clear that in case medical aid would not have been provided to the injured, then he would have succumbed to the injuries. He, therefore, submitted that looking to the number of injuries, offence under Section 307 I.P.C. was clearly made out, therefore, order of the trial court may be set aside and the accused persons may be convicted accordingly.
7. Learned counsel for the petitioner further submitted that looking to number of injuries, it was not proper on the part of the learned trial court to grant benefit of probation to the accused persons under Section 325/149 I.P.C. He further submitted that amount of compensation is also not adequate and it should be enhanced.
8. Learned counsel for the accused-respondents submitted that there is no dispute that there were 14 injuries on the person of the injured Dharmi Chand, P.W. 10, but the injuries sustained by him on the head were found to be simple in nature and other injuries were on non-vital part of the body and they were not dangerous and sufficient to cause death in the ordinary course of nature. He, therefore, contended that learned trial court was absolutely right in acquitting the accused-respondents from the charges under Section 307/149 I.P.C. So far as grant of probation to accused-respondents is concerned, he submitted that maximum sentence under Section 325 I.P.C. is seven years and said offence is triable by the Court of any Magistrate. He further submitted that accused persons remained in jail for a period of one month and five days i.e. from 15.05.1996 till 20.06.1996, therefore, looking to all the facts and circumstances of the case, particularly the maximum sentence prescribed under Section 325 I.P.C., it was incumbent on the part of the learned trial court to grant the benefit of Probation of Offenders Act or to give the benefit of Section 360 Cr.P.C. to the accused respondents, otherwise to record the reasons for not giving the said benefit, in view of Section 361 Cr.P.C. Since it was first offence of the accused persons, therefore, there is nothing wrong in the order passed by learned trial court in extending the benefit of probation to accused persons. He further submitted that the present incident relates to the year 1996 and total amount of compensation awarded is Rs. 20,000/-, which has already been deposited by the accused-persons in the trial court. He, therefore, submitted that this is not a fit case for interference by this Court in the judgment and order passed by learned trial court.
9. I have considered submissions of learned counsel for the parties and minutely scanned the impugned judgment and record of the trial court.
10. The incident in the present case took place on 14.05.1996 and accused persons were arrested on 15.05.1996 and they were released on bail on 20.06.1996. After completion of investigation, a charge sheet was filed. Prosecution examined P.W. 7 Dr. Anil Kumar Soni; P.W. 9 Dr. Pushpa Gupta; P.W. 11 Dr. G.S. Nawal and P.W. 13 Dr. V.C. Kasliwal. Injury Report of injured Dharmi Chand is Exhibit P-11. From the oral and documentary evidence, it is clear that all the four injuries, sustained by the injured on his head, were found to be simple in nature and other injuries were on non-vital part of the body and none of them was sufficient to cause death in the ordinary course of nature. Submission of learned counsel for the petitioner, that since there were 14 injuries, therefore, the same should have been taken into consideration, cannot be accepted, for the simple reason that number of injuries is not relevant, it is the nature of injuries, which is relevant for the purpose of constituting a particular offence. Since no injury was there on the person of the injured, which was sufficient to cause death in the ordinary course of nature, therefore, in these circumstances, I am of the view that learned trial court was absolutely right in acquitting the accused persons from the offence under Section 307/149 I.P.C.
11. Apart from above, it is relevant to mention that present revision petition is directed against an order of acquittal whereas the scope to interfere in the order of acquittal is very limited. Hon'ble Apex Court in State of Madhya Pradesh vs. Bacchudas alias Balaram & Ors. (AIR 2007 SC 1236) observed that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Hon'ble Apex Court further observed that the order of acquittal should not be interferred with unless there are some compelling and substantial reason or circumstances for doing so. Para 9 of the judgment(supra) is reproduced as under:
“9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of injustice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offences or not.
The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there is compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade Vs. State of Maharahstra(1973(2)SCC 793); Ramesh Babulal Doshi Vs. State of Gujarat(1996(9)SCC 225); Jaswant Vs. State of Harayana(2000(4)SCC 484); Rajkishore Jha Vs. State of Bihar(2003(11)SCC 519); State of Punjab Vs. Karnail Singh(2003(11)SCC 271); State of Punjab Vs. Phola Singh(2003(11)SCC 58); Suchand Pal Vs. Phani Pal(2003(11)SCC 527) and Sachchey Lal Tiwari Vs. State of U.P.(2004(11)SCC 410.”
12. So far as extending benefit of probation to accused persons under Section 325/149 I.P.C. is concerned, I find that order passed by trial court to that extent is absolutely justified, looking to maximum sentence prescribed under Section 325 I.P.C., moreso, when the offence is triable by the Court of any Magistrate. It is relevant to mention that admittedly accused persons remained in custody from 15.05.1996 to 20.06.1996 i.e. for one month and five days. Even if the order of imprisonment is required to be passed, then the said period of imprisonment is sufficient and no further order of imprisonment is required to be passed in the facts and circumstances of the present case. Since order passed by trial court extending benefit of Probation of Offenders Act to accused persons is justified, therefore, no order of imprisonment is required to be passed in the present case.
12. So far as enhancement of the amount of compensation is concerned, it is true that the present incident relates to the year 1996 and accused Dharma was directed to pay a sum of Rs. 5,000/- and other remaining five accused persons were directed to pay Rs. 3,000/-(each accused), total Rs. 20,000/-, which has already been deposited by the accused persons in the trial court, therefore, I do not find any merit in this submission of learned counsel for the petitioner also. The amount of compensation awarded in the present case appears to be just and reasonable, in the facts and circumstances of the present case.
13. In view of above discussions, I do not find any merit in this revision petition and the same is, accordingly, dismissed.
(NARENDRA KUMAR JAIN),J.