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2022 DIGILAW 306 (UTT)

Bhupendra Singh v. State of Uttarakhand

2022-09-19

RAVINDRA MAITHANI

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JUDGMENT : Ravindra Maithani, J. By means of the instant revision, the following judgment and orders are to put to challenge:- (A) Judgment and order dated 08.12.2010, passed in Criminal Case No.1481 of 2008, State Vs. Bhupendra Singh and others, by the court of Chief Judicial Magistrate, Udham Singh Nagar (“the case”). By it, the revisionist have been convicted under Sections 323 IPC and sentenced to six months imprisonment and, (B) Judgment and order dated 16.05.2011, passed in Criminal Appeal No.196 of 2010, Bhupendra Singh and others Vs. State of Uttarakhand, by the court of Additional Sessions Judge/IInd F.T.C. Udham Singh Nagar (for short, “the appeal”) which confirmed the order passed in the case. 2. Heard learned counsel for the parties and perused the record. 3. Facts necessary to appreciate the controversy, briefly stated, are as follows. On 10.02.2008, at about 10 AM, PW1 Ganpath was assaulted by the revisionists armed with lathi-danda, sword, etc. and attacked, due to which, he became unconscious and fell on the ground. The wife and daughter of PW1 Ganpath were also assaulted and attacked. A report of the incident was given on 11.02.2008 at 09:45 PM by PW2 Ganga Sagar. Based on which, a Case Crime No.287 of 2008, under Sections 147, 452, 323, 506 IPC was lodged. After investigation, charge-sheet was submitted against the revisionists namely, Bhupendra Singh, Jitendra Singh and Vinod Singh. Subsequently, during trial other revisionists, namely Ranvijay Singh, Dhruv Singh and Bhim Singh were also summoned under Section 319 of the Code of Criminal Procedure, 1973 (for short, “the Code”) to face trial along with the existing accused. On 05.12.2012, charge under Sections 323, 506 IPC was levelled against the revisionists Ranvijay Singh, Dhruv Singh and Bhim Singh and on 17.10.2008, charge under Sections 323, 506 IPC was framed against Bhupendra Singh, Jitendra Singh and Vinod Singh. They have denied the charge and claimed trial. 4. The prosecution in order to prove its case examined five witnesses namely, PW1 Ganpath, PW2 Ganga Sagar, the informant, who is one of the victim, PW3 Dr. Shalini Sharma, PW4, the Investigating Officer Sub-Inspector T.S. Khati and PW5 Sumit Kumar. 5. The revisionists were examined under Section 313 of the Code. They denied the prosecution evidence. In defence DW1 Dr. Dheer Singh has been examined. Shalini Sharma, PW4, the Investigating Officer Sub-Inspector T.S. Khati and PW5 Sumit Kumar. 5. The revisionists were examined under Section 313 of the Code. They denied the prosecution evidence. In defence DW1 Dr. Dheer Singh has been examined. After hearing the parties, by the impugned judgment and order dated 08.12.2010, passed in the case, all the revisionists have been convicted under Section 323 IPC and sentenced to six months imprisonment. The order dated 08.12.2010, passed in the case, has been unsuccessfully challenged in the appeal. 6. Learned counsel for the revisionists would submit that the court below did not take into consideration the important piece of evidence. Reference has been made to the statement of PW3 Dr. Shalini Sharma, who on 25.05.2010, proved that on 10.02.2008, she also medically examined the revisionists Bhupendra Singh and Jitendra Singh and found injuries on their person. It is argued that the prosecution has not explained those injuries. 7. It is submitted that, in fact, the dispute was with the revisionists Bhupendra Singh and Jitendra Singh only and other revisionists have been falsely implicated. It was a free fight, in which, the victim Ganpath sustained injuries. Apart from it, it is also argued that Vinod Singh and Bhim Singh were working at their place of job at the date of incident. But, this plea was wrongly not accepted by the court below. 8. On the other hand, learned counsel appearing for the informant would submit that the prosecution has been able to prove its case beyond reasonable doubt. There is no reason to make any interference in this revision. 9. Learned counsel for the revisionists would submit that in appeal, on behalf of the revisionists Jitendra Singh and Bhupendra Singh, it is argued that they were in jail at the time of incident, hence, they were falsely implicated whereas, in this Court, it is being argued that, in fact, they only were involved in the incident and rest of the revisionists have been falsely implicated. 10. Learned State counsel would submit that the witnesses have proved the prosecution case. 11. It is argued that the witnesses have not asked anything about the injuries on the person of the revisionists Jitendra Singh and Bhupendra Singh. Therefore, they cannot take any benefit of doubt. 12. 10. Learned State counsel would submit that the witnesses have proved the prosecution case. 11. It is argued that the witnesses have not asked anything about the injuries on the person of the revisionists Jitendra Singh and Bhupendra Singh. Therefore, they cannot take any benefit of doubt. 12. This is a revision, the scope is quite limited to the extent of examining legality, propriety and correctness of the impugned judgment and order. Appreciation of evidence is beyond the scope of revision unless the finding is perverse i.e. without any weight of evidence. Evidence is also appreciated in the cases where material evidence is ignored or irrelevant material is considered while passing the impugned judgment and order. 13. Learned counsel for the revisionists would submit that with regard to the injuries of Jitendra Singh and Bhupendra Singh, witnesses had not been asked on behalf of the revisionists that how did the revisionists Jitendra Singh and Bhupendra Singh sustained injuries. He would submit that in the impugned judgment and order also, this aspect has not been considered, in fact, it is placed for the first time in this revision. 14. PW1 is the victim Ganpath, who has stated that on the date of incident i.e. on 10.02.2008, at about 10:00 in the morning, he was assaulted by the revisionists by lathi-danda and with other weapons, due to which, he sustained certain injuries. PW2 Ganga Sagar, is the informant, who is son of the victim. He has also corroborated in the statement of PW1 including FIR. PW3 is Dr. Shalini Sharma, she proved injuries on the person of PW1 Ganpath, according to her, the injuries were simple. In her cross-examination, she was asked to state about the medical examination of the revisionists Bhupendra Singh and Jitendra Singh, which she explained. She found four injuries on the person of the revisionist Bhupendra Singh, which according to her, were simple, as such, one injury was kept under observation. Similarly, according to her, she found four injuries on the person of the revisionist Jitendra Singh and they were also simple. She was not asked about any additional medical examination report. PW4 T.S. Khati is the Investigating Officer, who has proved the site plan and other documents and submitted the charge-sheet. PW5 Sumit Kumar is an eyewitness, he has supported the prosecution case. 15. On behalf of the revisionists DW1, Dr. She was not asked about any additional medical examination report. PW4 T.S. Khati is the Investigating Officer, who has proved the site plan and other documents and submitted the charge-sheet. PW5 Sumit Kumar is an eyewitness, he has supported the prosecution case. 15. On behalf of the revisionists DW1, Dr. Dheer Singh, who was working as a Joint Director in the Research Centre of Pantnagar University has been examined. According to him, on 10.02.2008, Vinod Kumar and Bhim Singh were on duty. They had signed the documents. In the cross-examination, he has stated that he did not see the revisionists Vinod Kumar and Bhim Singh in the office on that date. 16. In the case of State of Gujarat vs. Bai Fatima and another, (1975)2 SCC 7 , the Hon’ble Supreme Court in para no.17, observed as hereunder:- “17. In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. Question is in which category the present case falls?”. 17. In the case of Lakshmi Singh and others vs. State of Bihar, (1976)4 SCC 394 , the Hon’ble Supreme Court while discussing the law on the point observed as hereunder:- “in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: “(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” 18. Hon’ble Supreme Court further observed that, “The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” 19. Instant is the case of simple injuries. All the revisionists have been convicted and sentenced under Section 302 IPC. 20. Defence has no version. Defence has not come up with the case, as to how the revisionists Jitendra Singh and Bhupendra Singh sustained injuries. They have not stated anything. Merely, PW3 Dr. Shalini Sharma was asked to state about the examination, which she conducted, she has stated that they were simple injuries on that day. How could they sustained injuries? It is not defined. 21. On behalf of the revisionists in this Court, it is argued that the incident took place only with revisionists Jitendra Singh and Bhupendra Singh. They both had sustained injuries and other revisionists have been falsely implicated. But, strangely in the appeal against the impugned judgment passed in the case, on behalf of the revisionists, it was argued that, in fact, at the time of incident revisionists Jitendra Singh and Bhupendra Singh were in jail. In page 5, first paragraph of its arguments and thereafter, discussion has been done by the court in appeal. How could the revisionists Jitendra Singh and Bhupendra Singh sustain injuries, if they were in jail? And if, they were the only persons, who had some free fight with the informant and the victim, they could not have been in the jail at the same time. The injuries which PW3 Dr. Shalini Sharma detected on the persons of the revisionists Jitendra Singh and Bhupendra Singh are simple in nature. The victim or any other witness has not been questioned by the revisionists about the injuries allegedly sustained by Jitendra Singh and Bhupendra Singh. 22. Having considered this aspect, in fact, merely because some simple injuries were detected on the person of the revisionists Jitendra Singh and Bhupendra Singh, the prosecution case does not become doubtful. It has no effect on the prosecution case. 23. Witnesses have stated about the case. Parties were neighbours. In fact, it was an unfortunate incident. 22. Having considered this aspect, in fact, merely because some simple injuries were detected on the person of the revisionists Jitendra Singh and Bhupendra Singh, the prosecution case does not become doubtful. It has no effect on the prosecution case. 23. Witnesses have stated about the case. Parties were neighbours. In fact, it was an unfortunate incident. According to the prosecution case, on the date of incident firstly revisionists Jitendra Singh and Bhupendra Singh started teasing, facing the house of the injured or informants, they started peeing. The sister of PW2 Ganga Sagar was sitting in the house. They objected to the act of the revisionists Jitendra Singh and Bhupendra Singh. This is the igniting point. Thereafter, according to the prosecution case, the revisionists attacked PW1 Ganpath. He sustained simple injuries. 24. In view of it, this Court is of the view that the court below did not commit any error in convicting the revisionists. 25. The revisionists have been sentenced to six months’ imprisonment. 26. No arguments have been advanced on the question of sentence. This Court is of the view that the part of the sentence needs to be revisited. It is a dispute between two neighbours. They have nothing against each other. According to the prosecution, a simple act of indecency on the part of the revisionists Jitendra Singh and Bhupendra Singh, ignited both the parties. The issue was peeing while facing towards the house of the informant. It is not on record that the revisionists or any of them, is a previous convict. 27. Having considered the entirety of facts, this Court is of the view that instead of sentencing at once, the interest of justice would be better served, if the revisionists are released on probation. 28. The revision is partly allowed. 29. The conviction of the revisionists under Section 323 IPC is upheld. It does not require any modification. However, instead of sentencing at once, let the revisionists be released on probation of good conduct for a period of 6 months subject to their furnishing a personal bond and two sureties, by each one of them, to the satisfaction of the court concerned and in the meantime to keep the peace and be of good behaviour. 30. The impugned judgments and orders are modified to the extent, as indicated above.