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2004 DIGILAW 184 (ALL)

GAMBHIR SINGH v. STATE OF U P

2004-01-30

M.C.JAIN, ONKARESHWAR BHATT

body2004
M. C. JAIN, J. All these three appeals arise from the judgment and order dated 16-9-1981 passed by the then III Additional Sessions Judge, Bijnor in ST No. 352 of 1980. The three accused appellants in represented appeal are Gambhir Singh and his two sons Sukhey Singh and Vijai Singh who had been convicted under Section 324 IPC read with Section 34 IPC and sentenced imprisonment till rising of the Court as also to pay a fine of Rs. 400 each and in default, they were ordered to undergo three months rigorous imprisonment. It was further directed that out of the total amount of fine of Rs. 1,200 a sum of Rs. 200 would be paid as compensation to the injured Natthu Singh. They were acquitted of the charge under Section 307 read with Section 34 IPC. 2. Aggrieved by their conviction and sentence, they have come up before this Court of appeal. Government Appeal No. 2863 of 1981 has been filed by the State for enhancement of the sentence and Government Appeal No. 3164 of 1981 has been filed against their acquittal under Section 307 IPC read with Section 34 IPC. The three appeals are being decided by this order. 3. The prosecution case was that the complainant Ram Singh PW 3 belonged to village Firozpur Mubarak alias Naya Gaon to which the accused belonged. Manure pits of each of the parties were adjacent to each other. On 10-8-1979 at about 4. 00 p. m. accused were taking out manure from the complainants pit and dumping the same in their own manure pit. When the complainant raised objection, the accused-Gambhir Singh armed with lathi and his two sons Sukhey Singh and Vijay Singh, each armed with spade fell upon him and his father Natthu Singh causing injuries to them. The witnesses Sumer Singh PW 4 and Satvir Singh both residents of village reached on the shouts of the victims and then the accused ran away. The FIR was lodged by Ram Singh injured, the same day at 5. 25 p. m. The case was registered. Ram Singh and his father Natthu Singh (both injured) were medically examined at the behest of the police at 6. 10 p. m. and 6. 20 p. m. respectively by Dr. B. B. Sharma PW 1. The FIR was lodged by Ram Singh injured, the same day at 5. 25 p. m. The case was registered. Ram Singh and his father Natthu Singh (both injured) were medically examined at the behest of the police at 6. 10 p. m. and 6. 20 p. m. respectively by Dr. B. B. Sharma PW 1. Ram Singh had received three minor injuries in the form of two abrasions and one abraded contusion which were superficial. Natthu Singh had received five injuries one incised wound, one lacerated wound, one contusion and two swellings. The last injury which was a swelling on the left hip joint was kept under observation and X- ray was advised. The rest were simple, the incised wound having been caused by a sharp edged weapon and others by blunt object. After investigation by Gajraj Singh PW 2, charge-sheet was submitted. The defence was of denial. 4. At the trial, Ram Singh PW 3 injured and Sumer Singh PW 4 were examined as eye-witnesses apart from Doctor and Investigating Officer. The trial Court concluded that the injuries of Ram Singh were superficial and could be self-inflicted also. However, Natthu Singh had received five injuries. Though no X-ray was produced in respect of injury No. 2, kept under observation, nevertheless one of the injuries had been caused by sharp edged weapon. The prosecution case was accepted that the three accused shared common intention of each other and two of them were armed with spades (sharp edged ). The injuries of Natthu Singh being also simple, having regard to the evidence as also the seat of the injuries, the trial Court found the accused to be guilty of offence under Section 324 IPC read with Section 34 IPC and convicted and sentenced them as stated hereinabove. 5. We have heard learned Counsel of both the sides and have examined the record carefully. After having gone through the evidence carefully, we find that the conclusion arrived at by the trial Judge was quite justified and reasonable. There was neither any perversity nor misreading of evidence warranting interference by this Court of appeal. Cogent reasons have been given by the learned trial Judge for the conclusion reached by him. The FIR was promptly lodged by an eye-witness Ram Singh PW 3. The prosecution case was supported in material particulars by Sumer Singh PW 4. There was neither any perversity nor misreading of evidence warranting interference by this Court of appeal. Cogent reasons have been given by the learned trial Judge for the conclusion reached by him. The FIR was promptly lodged by an eye-witness Ram Singh PW 3. The prosecution case was supported in material particulars by Sumer Singh PW 4. Though he was cousin of the father of the complainant, but this could not be a ground to reject his testimony when he withstood the test of cross-examination firmly. His name also found place in the promptly lodged FIR. He was the resident of the same village and had reached the spot on the shouts emanating therefrom. There had been some altercation over the taking of manure by the accused from the pit of the complainant which could not be a completely silent affair. Therefore, the presence of Sumer Singh PW 4 at the spot was probable. Further, it is also to be pointed out that the incident was admitted to the accused side also inasmuch as Vijai Singh accused had sent a telegram to S. P. Bijnor on 11-8-1979, copy of which had been placed on record as Ext. Kha-1. In that telegram, it was alleged by him, that his mother was beaten up by Natthu Singh and his sons and he acted in self-defence. So, the telegram clearly mentioned that the incident of marpeet took place between the parties. We should point out that no witness was examined by the accused persons to prove their defence version. Their mother also chose not to enter the witness-box. Reference was made to the injury report of Bhagwan Devi mother of accused Vijai Singh. According to it, four incised wounds had been sustained by her. But, as we pointed out above, she herself did not enter the witness-box to say as to how the incident occurred. No other witness either of the village was examined to back the defence version. The medical examination of Bhagwan Devi was of the next day of the occurrence with delay of more than 24 hours which cast cloud on the authenticity of the same. 6. On a cumulative consideration our conclusion is that the appeal filed by the accused appellants is completely devoid of merit. We are also of the view that the two appeals filed by the Government are equally unmerited. 7. 6. On a cumulative consideration our conclusion is that the appeal filed by the accused appellants is completely devoid of merit. We are also of the view that the two appeals filed by the Government are equally unmerited. 7. Having regard to the simple nature of the injuries of the injured and their seats, the conviction was rightly recorded under Section 324 IPC read with Section 34 IPC and not under Section 307 IPC read with Section 34 IPC. The sentence awarded by the trial Court also does not call for any interference by this Court of appeal on a global consideration. Having regard to the money value at the relevant time, the trial Court cannot be deemed to have committed any error in sentencing the accused for imprisonment till rising of the Court with a fine of Rs. 400 imposed on each of them. 8. We, therefore, dismiss all the three appeals numbered as Criminal Appeal No. 2305 of 1981, Government Appeal No. 2863 of 1981 and Government Appeal No. 3164 of 1981. At the time of the admission of the appeal, the payment of Rs. 200 as compensation to Natthu Singh injured, was stayed. Chief Judicial Magistrate, Bijnor shall ensure from the record that the total amount of Rs. 1,200 (Rs. 400 by each appellant) has been deposited. In case it has not yet been deposited, the three accused Gambhir Singh, Sukhey Singh and Vijai Singh shall deposit the same within three months from today and out of the same an amount of Rs. 200 shall be paid to the injured Natthu Singh as compensation. If he is alive. In case of his death, it shall be paid to his next heir as per the law. In the eventuality of fine not being paid within the stipulated period, each of the three accused-respondents shall be arrested and lodged in jail to serve out the sentence of three months rigorous imprisonment imposed in default of payment of fine. 9. The compliance report shall be submitted to this Court by the Chief Judicial Magistrate, Bijnor within three months. Appeals dismissed. .