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2012 DIGILAW 540 (UTT)

GOPAL SINGH v. STATE OF U. P.

2012-09-06

PRAFULLA C.PANT

body2012
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 08.10.1999, passed by Sessions Judge, Almora, in Sessions Trial No. 23 of 1993, whereby said court has convicted accused/ appellants Gopal Singh, Shankar Singh, Bhuwan Singh Bisht @ Bhupendra Singh and Hira Singh under section 147, 324/149, 333/149, 353/149 IPC. Each of the said convicts has been sentenced to rigorous imprisonment for a period of two years under section 147 IPC, rigorous imprisonment for a period of three years under section 324/149 IPC, rigorous imprisonment for a period of three years under section 333/149 IPC, and rigorous imprisonment for a period of two years under section 353/149 IPC. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story in brief is that on 03.09.1987, near Toll Barrier Pilkholi one Hawaldar Sher Singh in a drunken state misbehaved with the Station House Officer Laxman Singh Bisht, and Sub Inspector Budhi Lal of Police Station Ranikhet, and said Sher Singh was arrested by the Police Officers, and handed over to the Army Authorities as he was a subject under Army Act. Aggrieved by said incident Sher Singh on 07.09.1987, at about 10:00 p.m., came alongwith accused/appellants Gopal Singh, Shankar Singh, Bhuwan Singh @ Bhupendra Singh and Hira Singh, and in retaliation of the earlier incident started beating Constable Hari Ram (P.W.1) who was on duty at the Toll Barrier. On hearing noise, Constable Ganesh Lal (P.W.2) rushed in an order to save his colleague but he too was assaulted with kicks, fists and stones. In the incident two constables were obstructed in discharge of their duties, and their uniform was also got torn. The first information report (Ex. A2) was given by P.W.1 Hari Ram at Police Station Ranikhet, in the midnight on 07.09.1987. On the basis of said report crime no. 100 of 1987, was registered at 00:10 hours on 08.09.1987, at the Police Station, relating to offences punishable under section 147, 148/149, 333, 353, 307 IPC, against Sher Singh and four other accused namely Gopal Singh, Shankar Singh, Bhuwan Singh @ Bhupendra Singh and Hira Singh. The investigation was taken up by Sub Inspector Tika Ram Sharma who inspected the spot and interrogated the witnesses. The investigation was taken up by Sub Inspector Tika Ram Sharma who inspected the spot and interrogated the witnesses. On the very day of the incident (07.09.1987) between 11:10 p.m, and 11:35 p.m, injuries on person of the injured constables were examined by P.W.4 Dr. C.L. Maheshwari of Civil Hospital, Ranikhet. After completion of investigation, the Investigating Officer submitted charge sheet (Ex. A9) against accused/appellants Gopal Singh, Shankar Singh, Bhuwan Singh @ Bhupendra Singh and Hira Singh for their trial in respect of offences punishable under section 147, 148/149, 333, 353, 307 IPC. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, Almora, on 25.08.1988, framed charge of offences punishable under section 147, 148, 333/149, 325/149, 353/149, 307/149 IPC, against accused Gopal Singh, Shankar Singh, Bhuwan Singh @ Bhupendra Singh and Hira Singh to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Hari Ram (injured Police Official and complainant), P.W.2 Constable Ganesh Lal (another injured of the incident), P.W. 3 Dr. N.K. Pandey (who examined injury on person of accused Shankar Singh), P.W.4 Dr. C.L. Maheshwari (who medically examined the two constables) and P.W.5 Head Constable Pratap Singh (who prepared check report of the incident and made necessary entries in the General Diary. This witness has also proved the documents signed by the Investigating Officer Tikaram Sharma). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they pleaded that they have been falsely implicated in the case. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that prosecution has successfully proved charge of offences punishable under section 147, 333/149, 353/149 and 324/149 IPC. However, charge was not found proved in respect of offences punishable under section 148, 307/149 IPC. All the accused were acquitted from the charge of offences punishable under section 148 and 307/149 IPC, but convicted in respect of rest of the charge i.e., offences punishable under section 147, 333/149, 353/149 and 324/149. However, charge was not found proved in respect of offences punishable under section 148, 307/149 IPC. All the accused were acquitted from the charge of offences punishable under section 148 and 307/149 IPC, but convicted in respect of rest of the charge i.e., offences punishable under section 147, 333/149, 353/149 and 324/149. After hearing on sentence, the trial court sentenced each of the convicts to rigorous imprisonment for a period of two years under section 147 IPC, rigorous imprisonment for a period of three years under section 324/149 IPC, rigorous imprisonment for a period of three years under section 333/149 IPC and rigorous imprisonment for a period of two years under section 353/149 IPC. Aggrieved by said judgment and order dated 08.10.1999, passed by learned Sessions Judge, Almora, in Sessions Trial No. 23 of 1993, this appeal was filed by the convicts before Allahabad High Court from where it is received under section 35 of U.P. Reorganization Act, 2000 (Central Act 2000) for its disposal. 5. Before further discussion this Court thinks it just and proper to mention the injuries found on the person of the injured witnesses. P.W.4 Dr. C.L. Maheshwari has recorded following injuries found on person of the Ganesh Lal (P.W.2) at 11:10 p.m., on 07.09.1987. Same are being reproduced below:- (i) Lacerated wound encircling in between ring finger and middle finger left, size 10 cm X 0.5 cm, muscle deep, bleeding present. (ii) Abraded contusion over left side, size 2 cm X 1 cm. Serum blood mix oozing, 6 cm below ankle of scapula. (iii) Multiple contusion cum abrasion all over back largest 1 cm X 1 cm, smallest pin point, colour reddish. Blood serum mixed oozing. (iv) Abrasion over left side of thigh, size 1 cm X 1 cm. Blood mix serum oozing, 21 cm above knee joint. (v) Multiple abrasion cum contusion over left knee in an area of 10 cm X 8 cm, largest 1 cm X 1 cm, smallest pin point. Serum blood mix oozing. Colour reddish. (vi) Lacerated wound right leg, size 1 cm X 0.2 cm. Skin deep. Bleeding present. 10 cm above ankle. The same medical officer also examined injuries on person of Constable Hari Ram (P.W.1) at 11:35 p.m., on the day of incident (07.09.1987). The same are being reproduced below:- (i) Lacerated wound over scalp, size 4.5 cm X 0.5 cm. (vi) Lacerated wound right leg, size 1 cm X 0.2 cm. Skin deep. Bleeding present. 10 cm above ankle. The same medical officer also examined injuries on person of Constable Hari Ram (P.W.1) at 11:35 p.m., on the day of incident (07.09.1987). The same are being reproduced below:- (i) Lacerated wound over scalp, size 4.5 cm X 0.5 cm. scalp deep, bleeding present, 14cm above occiput. (ii) Lacerated wound over scalp, size V shaped, coar arm 1 cm X 0.5 cm, scalp deep, 3 cm from wound no. 1. Bleeding present. (iii) Lacerated wound over scalp L shaped, 4 cm X 2 cm X 0.5 cm scalp deep. Bleeding present, 3.5cm below injury no. 1 towards occiput. (iv) Lacerated wound over left hand at the junction on middle finger and hand, size 0.5 cm X 0.5 cm skin deep. Bleeding present. (v) Complaint of pain on left side. In respect of injuries found on the person of above two injured witnesses on this case, the Medical Officer (P.W.4 Dr. C.L. Maheshwari) has observed in his injury report (Ex. A4 and Ex. A5) that the same were cause by hard and blunt object. The injuries were kept under observation. Duration of the injury was fresh. 6. P.W.3 Dr. N.K. Pandey of Civil Hospital, Ranikhet, has examined the injury on the person of accused/appellant Shankar Singh and the same were recorded in injury report (Ex. A3). The only injury found on person of Shankar Singh on 08.09.1987 at 8:45 p.m., is reproduced below:- Abrasion on the left side of face 1.5cm below mid of lower left eye brow 1 cm X 0.1 cm in size. Crushed present. No oozing of blood and serum. The nature of injury according to P.W.3 Dr. N.K. Pandey was simple and duration was a day old. The above injuries found on the person of the constables who are the witnesses, and on the person of the one of the accused establishes that there had been some incident on 07.09.1987, in which two witnesses were assaulted. Now this Court has to examine whether accused/appellants assaulted the public servants on duty and obstructed them from discharging their duties. This Court has also to see whether the accused/appellants in association with Sher Singh formed unlawful assembly and in order to achieve the object of unlawful assembly and committed the crime. 7. Now this Court has to examine whether accused/appellants assaulted the public servants on duty and obstructed them from discharging their duties. This Court has also to see whether the accused/appellants in association with Sher Singh formed unlawful assembly and in order to achieve the object of unlawful assembly and committed the crime. 7. P.W.1 Constable Hari Ram states that on 07.09.1987 at about 10:00 p.m., he was on duty near Pilkholi Toll Barrier. He further states that by that point of time Sher Singh (a subject under Army Act) alongwith accused/appellants Gopal Singh, Shankar Singh, Bhuwan Singh @ Bhupendra Singh and Hira Singh and some others came there and assaulted him. He further told that Gopal Singh and Shankar Singh assaulted on his head and Bhuwan Singh Bisht @ Bhupendra Singh and Hira Singh caught hold of his leg and made him fall on the ground. Thereafter Shankar Singh attempted to strangulate him. The witness has further stated that he shouted for help on which his colleague Ganesh Lal (P.W.2) came out but he too was beaten. The witness has further narrated that his uniform was torn by the accused. He identified his blood stained clothes (Ex.1 and Ex.2) collected by the Investigating Officer which were produced in the court. 8. P.W.2 Ganesh Lal has fully corroborated the prosecution story, and he has narrated same story as mentioned above. The testimony of this witness is also supported by the medical evidence on record already mentioned above. There is no reason to disbelieve the testimony of the injured witnesses. The trial court has rightly found that the prosecution has successfully proved charge of offence punishable under section 147, 324/149, 333/149 and 353/149 IPC, against accused/ appellants namely Gopal Singh, Shankar Singh, Bhuwan Singh Bisht @ Bhupendra Singh and Hira Singh. 9. Learned counsel for the appellants submitted that there is no mention as to the role of main accused Sher Singh in the impugned judgment. However, in the opinion of this Court said fact does not make any difference in this case as it has already been mentioned above that Sher Singh was a subject under Army Act. 10. On behalf of the appellants it is also pleaded that since the appellants are not previous convicts, and considering the nature of the offence the period of sentence may be reduced to the period already undergone by them in jail. 10. On behalf of the appellants it is also pleaded that since the appellants are not previous convicts, and considering the nature of the offence the period of sentence may be reduced to the period already undergone by them in jail. Considering the facts and circumstances of the case, this Court if of the view that the period of sentence of imprisonment can be reduced to the period already undergone but it is also just and proper to award punishment of fine with the punishment of imprisonment already undergone in respect of offence punishable under section 333 IPC. 11. Accordingly, the appeal on the point of conviction is dismissed but on the point of sentence it is partly allowed. Sentence of each of the convicts Gopal Singh, Shankar Singh, Bhuwan Singh Bisht @ Bhupendra Singh and Hira Singh is reduced to the period already undergone under section 147, 324/149 and 353/149 IPC. However, the sentence awarded under section 333/149 is modified to period already undergone and each of the accused/appellants is directed to pay fine of Rs. 5,000/- as said provision requires punishment of fine also with the punishment of imprisonment. With this modification in the sentence, the appeal stands disposed of. In case of default in payment of fine the defaulter convict would be required to undergo rigorous imprisonment for a period of three months. The accused/appellants are on bail. They need not to surrender provided they deposit the amount of fine as directed to be paid by this Court within one month from today before the trial court. Lower court record be sent back.