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2013 DIGILAW 341 (UTT)

BALDEV SINGH v. STATE OF UTTARAKHAND

2013-06-18

U.C.Dhyani

body2013
JUDGMENT Hon’ble U.C. Dhyani, J. (Oral) Informant Jeet Singh wrote a complaint to the SO, PS Nanakmatta, District Udham Singh Nagar, alleging the facts contained therein that co-villager Baldev Singh, Baggi and his maternal uncle Mahendra Singh were casting aspersions on Balwant Singh regarding theft of liquor. Balwant Singh said that he knew nothing about the liquor. All the accused persons abused Balwant Singh. On 25.09.1997, at 8:00 a.m., when Jeet Singh along with Balwant Singh were going to sugarcane society, the accused persons inflicted blows of sticks and gandasa (sharp edged weapon) on Balwant Singh. When he raised an alarm, Paramjeet Singh and Pappu came on the place of occurrence. The incident took place in village Biria. After the investigation, a charge sheet against the accused appellants was submitted in respect of offences punishable under Sections 325/34, 324/34, 323/34 and 504/34 IPC. The charge was framed against the accused-revisionists for the selfsame offences, to which they pleaded not guilty and claimed trial. 2. PW1 Jeet Singh (informant), PW2 Balwant Singh (injured), PW3 Dr. Kumar Sambhav (Medical Officer), PW4 Pappu Singh (eyewitness), PW5 Baba Singh (eyewitness) and PW6 Paramjeet Singh (eyewitness) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr. P.C., in reply to which they said that they have been falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, the Special Judicial Magistrate, Khatima, vide Order dated 30.03.2006, convicted accused-revisionists in respect of the offences punishable under Sections 323/34 and 325/34 IPC and were sentenced appropriately. They were sentenced to undergo rigorous imprisonment for six months in relation to offence punishable under Section 323 read with section 34 of IPC; and one year’s rigorous imprisonment along with a fine of Rs. 500/- each, in respect of offence punishable under Section 325 read with section 34 of IPC. Aggrieved against the said order, they preferred Criminal Appeal, which was decided by learned Additional Sessions Judge/FTC, Rudrapur, Udham Singh Nagar, on 24.07.2007. Criminal Appeal was dismissed. Aggrieved against the impugned order dated 24.07.2007, present Criminal Revision was preferred. 3. The incident took place on 25.09.1997, at around 8:30 a.m. The distance between the place of occurrence and the PS concerned was ten kilometers. Criminal Appeal was dismissed. Aggrieved against the impugned order dated 24.07.2007, present Criminal Revision was preferred. 3. The incident took place on 25.09.1997, at around 8:30 a.m. The distance between the place of occurrence and the PS concerned was ten kilometers. The first information report was lodged on the same day at 12:40 p.m. Thus there appeared to be no delay in lodging the first information report. The injured was taken to hospital and his injuries were medically examined by Medical Officer at PHC, Nanakmatta on the same day at 1:30 p.m. Thus the first information report was lodged in time. The injured was provided with first aid in time. The copies of entries in G.D. affirmed the same. 4. The motive of the incident in question was important. The accused-persons had suspicion that the liquor was stolen by the injured. When the stolen liquor could not be found by them, they assaulted the injured. Although, it is established law that when there is direct evidence, the motive goes into oblivion, but the instant case is such case in which the motive is established, apart from the direct evidence given by the prosecution. 5. PW2 Balwant Singh was the injured. He has supported the prosecution story. His testimony was corroborated by PW1, PW4 and PW6. PW3 Doctor Kumar Sambhav examined the injuries of PW2, who found following injuries on the person of injured Balwant Singh: (i) There is gross circumferential swelling in the middle of left leg. There is abnormal mobility maniced bony tenderness in the swollen area suggestive of underlying fracture. There is small puncture wound over postoromedial aspect of swelling from which blood is oozing. (ii) Swelling over posterior aspect of right shoulder along with palpable bony upitus suggestive of a fracture. (iii) Incised wound 3 cm x 0.5 cm and skin deep over aspect of lower point of right forearm. (iv) Incised wound 2 cm x 0.5 cm over front of middle portion of right leg. (v) There is crushing injury of left thumb with tearing of nail from its bed (vi) Contusion 3 cm in diameter over right side of forehead. All injuries appeared to be about six hours old in duration. Injury nos. 3 and 4 have been caused by sharp object. Other injuries have been caused blunt object. Injury nos. 1 & 2 appeared to be grievous though x-ray is required to confirm it. All injuries appeared to be about six hours old in duration. Injury nos. 3 and 4 have been caused by sharp object. Other injuries have been caused blunt object. Injury nos. 1 & 2 appeared to be grievous though x-ray is required to confirm it. All other injuries are simple in nature. 6. PW3 Dr. Kumar Sambhav said that injuries nos. 3 & 4 were caused by sharp object. All other injuries were caused by blunt object. Injury nos. 1 & 2 were grievous in nature. All other injuries were simple in nature. PW 3 proved injury report (Ext. Ka-2) as well as supplementary report (Ext. Ka-3). No fracture was found on left tibia, fibula and right scapula after the x-ray. Thus the evidence tendered by PW1, PW2, PW4 and PW 6 was corroborated by the medical evidence of PW3. 7. Although, PW5 did not support the prosecution story and was declared hostile, yet the fact remains that PW1, PW2, PW4 and PW6 (all) supported the prosecution story, which was duly corroborated by the medical evidence of PW3. PW1, PW2, PW4 and PW6 were examined by learned defence counsel before the trial court, but nothing has come in the cross-examination of those witnesses, which might indicate that those witnesses were telling a lie. The evidence tendered by PW1, PW2, PW4 and PW6 was acceptable. Their evidence was rightly believed by the trial court without interference of the learned lower appellate court. There appears to be no need to repeat what was told by the Special Judicial Magistrate and by learned Additional Sessions Judge, in his judgment dated 24.07.2007. The evidence tendered by the prosecution has been appropriately dealt with by the Courts below. There is nothing on record to upset the concurrent findings arrived at by the Courts below. The Criminal Revision thus fails and is dismissed. The findings arrived at by the Courts below, so far as the conviction of the accused-revisionists is concerned, are affirmed. 8. Learned counsel for the revisionists submitted that since the revisionists are not the previous convicts, therefore, they should be granted benefit of Section 4 of the Probation of Offenders Act, 1958. The accused-revisionists were convicted on two counts. Firstly, under Section 323 IPC wherein they were awarded six months’ rigorous imprisonment. Secondly, under Section 325 IPC, wherein they were awarded one year’s rigorous imprisonment along with fine of Rs. 500/-. The accused-revisionists were convicted on two counts. Firstly, under Section 323 IPC wherein they were awarded six months’ rigorous imprisonment. Secondly, under Section 325 IPC, wherein they were awarded one year’s rigorous imprisonment along with fine of Rs. 500/-. Considering the nature of offences, the later and spirit of the Probation of Offenders Act, 1958 and attenuating circumstances, this Court is of the opinion that the accused-revisionists should be granted benefit of Section 4 of the Probation of Offenders Act, 1958, in the interest of society as well as in the interest of justice. 9. Thus, instead of sentencing the accused-revisionists Baldev Singh, Baggi Singh alias Bagga and Mahendra Singh at once and sending them to prison, it is directed that they shall be released on probation on their entering into a bond with two sureties in the like amount to the satisfaction of CJM, Udham Singh Nagar, to appear and receive sentence when called upon during the period of two years and in the meantime to keep the peace and be of good behavior. The offenders shall remain under the supervision of District Probation Officer, Udham Singh Nagar during such period (of two years). If the offenders are found to be violating any of the conditions made in the supervision order, they shall undergo rigorous imprisonment for a period of two years. Accused-revisionists Baldev Singh, Baggi Singh alias Bagga and Mahendra Singh are directed to appear before the CJM, Udham Singh Nagar on or before 18th July, 2013. 10. With the directions as above, the Criminal Revision is finally disposed of. Let the Lower Court Record be transmitted back for ensuring compliance.