Divakar Singh & Another vs State Of U.P.
2018 Latest Caselaw 3319 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 326 of 1996
 
Appellant :- Divakar Singh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.K.Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

The instant criminal appeal is directed against the judgment and order of conviction dated 20.2.1996, whereby, the surviving appellant no.2 - Satya Narain Singh having been convicted for offence under Section - 352 I.P.C. has been sentenced with fine Rs. 500/- and in default, he is to suffer additional imprisonment for one month concerning Case Crime No. 213 of 1987, Police Station - Dhanghata, District - Basti.

Factual matrix of this case as reflected from record appears to be that Smt. Barafa Devi lodged an FIR at Police Station - Dhanghata on 7.8.1987 alleging therein that her husband - Binare alias Vinda Singh, his two brothers Divakar Singh and Sitaram Singh and uncle Satya Narain Singh were involved in some dispute regarding partition of land and house. On that date, she, her husband and her son had gone to their field to collect fodder for the cattle at about 4:30 p.m. In the meanwhile, Divakar Singh armed with a 'kudal' and Satya Narain Singh possessing with a 'danda' (stick) came on the field and began to altercate on point of partition, whereafter Satya Narain jerked down her husband on the ground from behind and held his both hands, while Divakar gave 3-4 blows with the reverse side of the 'kudal' on his head and face. She and her son Madan Chandra sprawled over him to save his life. In the meantime, other persons working in and around the field also arrived on the spot, after hearing the hue and cry being raised. Due to the injuries, the informant's husband became unconscious. He was taken to P.H.C. - Hainsar Bazar for treatment before lodging of the F.I.R.

F.I.R. of the incidence was lodged at Case Crime No. 213 of 1987 at Police Station - Dhanghata and the investigating officer started the investigation and recorded statement of the witnesses, prepared the site plan and after completing the formalities, filed the charge-sheet under Section - 308 I.P.C. against both the accused.

The case was committed to the Court of Session. From there, it was made over for trial to the court of aforesaid Vth Additional Session Judge, Basti, where the accused was charged under Section-308 I.P.C. The accused pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case examined as many as five witnesses viz. Smt. Barafa Devi as P.W.-1, whereas Vrindavan as P.W.-2. S.I. Samsuddin Ahmad As P.W.-3, Dr. R.C. Parasar as P.W.-4 and S.I. Umakant Pandey as P.W.-5. Certain papers were proved before the trial court. The FIR is Ext. Ka-1, Check FIR is Ext. Ka-2, copy of G.D. is Ext. Ka-3, Letter to C.M.O., Basti is Ext. Ka-4, Injury report is Ext-Ka-4(a), Site plan is Ext. Ka-5, Blood-stained and simple earth is Ext. Ka-6, Charge-sheet is Ext. Ka-7 and bed-head-ticket of Binare is Ext. Ka-8.

Consequent thereupon, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, accused - Satya Narain admitted relationship with the injured and denied his involvement in the case. He claimed that he had gone to Gorakhpur in connection with operation of his wife. He is seventy five years old and he is unable to move about.

In defense accused - Satya Narain Singh produced Dr. Vajahat Kareem as D.W.-1. The Doctor has testified to the ambit that Smt. Bhanmati underwent an operation in his clinic and was admitted there on 15.7.1987 and was discharged on 24.7.1987. He further testified that during her admission, her husband - Satya Narain Singh was present and he attended his wife. Smt. Bhanmati was again brought to his clinic on 27.7.1987 and finally Satya Narain took Smt. Bhanmati for check-up on 19.9.1987. However, the doctor has admitted in his cross-examination that he cannot testify whether Smt. Bhanmati and her husband - Satya Narain Singh visited the clinic between 27.7.1987 and 13.8.1987 The doctor witness has proved the medical certificate as Ext. Kha-1 issued by his wife Dr. Surhita Kareem.

Except as above, no other testimony was adduced by the defense, whereafter evidence for the defense was closed.

After vetting the merit of the case and appraisal of facts and circumstances, the trial judge recorded aforesaid finding of conviction and imposed fine of Rs.500/- towards sentence for committing the offence under Section 352 I.P.C., which paved way for this appeal.

Heard learned counsel for the appellants as well as learned A.G.A. and perused the material brought on record.

It has been claimed that no offence, whatsoever, has been committed by the appellant. The fact is that on account of acrimonious relationship, the accused has been falsely implicated in this case. All the prosecution witnesses are interested persons. They are biased and tutored witness. Their testimony is contradictory. The incident in question is denied. The appellant was not present on the spot. When the incident took place, he was attending his wife, who was admitted in the hospital. The trial court arbitrarily convicted the appellant and passed sentence therefor, which is wholly unjustified.

Retorting to the submissions made by the learned counsel for the appellant, learned A.G.A. has supported the judgment and has claimed that the appellant has been rightly convicted and sentenced by the trial court.

Also considered the rival submissions. The moot point that arises for consideration of this appeal pertains to the issue whether the prosecution has been able to successfully prove the charge beyond reasonable doubt?

Upon careful perusal of the testimony of the prosecution witnesses' of fact and particularly the testimony of Barafa Devi P.W.-1, it transpires that her husband Binare alias Vinda Singh and another co-accused - Divakar Singh (since expired during pendency of appeal) were real brothers and Satya Narain Singh is their uncle. About 5-6 years back, partition of the property had taken place and Binare alias Vinda Singh, husband of the Barafa Devi was living separately, whereas Satya Narain Singh and Divakar Singh were living jointly but the dispute regarding partition remained the bone of contention between the accused and informant side. Therefore, 'panchayat' was called for amicable settlement. The 'panchayat' took place. At around 4:00 p.m., she, her husband and her son had gone to the field to collect fodder. They were cutting maize and 'chari' when Satya Narain along with another co-accused appeared on the scene possessing 'danda' and indulged in altercation with her husband. Satya Narain dragged her husband and jerked him on the ground. In the meantime, Divakar Singh assaulted her husband with the reverse side of the 'kudal' on her husband's face. Alarm was raised by the informant and her son Madan Chandra, whereupon witnesses Lalasa, Satai and Ramdeo who were working in the nearby field, rushed to the spot while the accused took to their heels. Since her husband sustained serious injuries, he was taken to P.H.C. Hainsar Bazar. The informant got the written report scribed by one Vimal Chandra Baniya of Hainsar Bazar and got the FIR lodged at P.S. Dhanghata. This witness has proved the contents and her thumb impression on the written report as Ext. Ka-1. She has also proved the fact of her husband being taken to District Hospital, Basti where he was admitted. In her cross-examination, she has admitted fact that the agricultural field was partitioned fifteen years ago, but the accused did not give her share in the land of Bhagawati. She has also claimed that she received only one third share in agricultural land and she did not insist on one half share in the property. She has specifically testified to the ambit that Satya Narain pulled the leg of her husband, which caused fall of her husband on the ground. Divakar was possessing 'kudal'. Blood oozed from the wound. Clothes of the informant as well as her son were stained with blood. She has been suggested by the defense that she along with her son and husband were stealing corn from the field of one Laxmi, whereafter persons from the side of Laxmi had beaten her husband, this suggestion has been denied. She has also denied suggestion of false implication of the accused.

Testimony of injured P.W.-2 - Binare @ Vrinda, husband of informant (P.W.-1) is quite relevant. He has specifically testified to the ambit that after the accused arrived on the spot, he began to talk to them on the issue of partition of the property. Satya Narain dragged his leg, due to which he fell on the ground. When Divakar caused three-four blows with the reverse side of the 'kudal' on his left side. His wife sprawled on him and raised alarm whereupon witnesses Lalasa, Satai and Ramdeo arrived on the spot, then only he could be saved. The accused escaped from the scene. He has stated that he was seriously injured and received grievous injuries. His tooth was broken and bone was fractured. He was taken on cot to Hainsar Bazar from where he has been taken to the Dhanghata and then to District Hospital, Basti where he remained admitted for about 10-12 days. His cross-examination disclosed fact that the share which was allotted to him in partition was never handed over by the accused. He has denied the suggestion that he was not given blow by the 'kudal'. He has also denied suggestion of pilfering maize millet crop of Laxmi, whereafter he was beaten by some witnesses.

S.I. Samsuddin Ahmad (P.W.-3) has proved lodging of the FIR and has proved the Check FIR Ext. Ka-2. He has also proved copy of G.D. concerned Ext. Ka-3 and the Chitthi Majrubi Ext. Ka-4.

Dr. R.C. Parasar P.W.-4 has medically examined the injured Vrinda on 7.8.1987. He found the following injuries on his person.

1. Lacerated wound 3 cm. x 0.5 cm. x bone deep on the fore-head 3 cms. above the bridge of the nose; x-ray was advised.

2. Lacerated wound 2 cms. x 0. cms x muscle deep on the left side face, 3 cm. below the left eye.

3. Lacerated wound 3.5 cm. x 0.5 cm. x muscle-deep on the left side face.

4. Contused swelling 7 cm. x 5 cm. on the right side face and upper and lower eye lid.

5. Lacerated wound 0.5 cm. x 0.3 cm. x skin deep on the nose (middle).

6. Lacerated wound on the gums and upper left canine tooth and lower left canine tooth. The injury was referred to Dental Surgeon for examination and opinion.

These injuries were kept under observation and were opined to have been caused by some blunt object and were fresh in duration.

Dr. R.C. Parasar has proved the injury report as Ext Ka-4(a). According to the doctor, the patient remained in hospital from 7.8.1987 to 22.8.1987. The Investigating Officer - S.S.I. Umakant Pandey (P.W.-5) has proved the site plan and the investigation conducted by him and has also proved the memo of simple and blood stained earth taken by him from the spot. He has also testified to the ambit that he was transferred during investigation, whereafter S.I. Sachchidanand took over the investigation and filed the charge-sheet against the accused. Thus, the statement of the injured when read conjointly with the statement of P.W.-1 - Barafa Devi satisfactorily proves the offence against the surviving accused - Satya Narain Singh.

Soon after the incident, which took place at around 04.30 P.M., the lodging of the FIR was promptly done at 6:25 p.m., the same day. The medical examination was conducted the very same day of the incident at 9:00 p.m. and according to the doctor witness, the injuries were fresh and possibly caused around 4:30 p.m. the very same day.

Defense has suggested and contended that witnesses, Satai, Lalasa and Ramdeo actually assaulted the injured. The contention raised to that magnitude is hardly acceptable in view of fact that there was no cogent reason for allowing the real culprit to go scot-free and involve another persons falsely in the incident. Nothing adverse has emerged in the testimony of the prosecution witnesses of fact, particularly P.W.-1 and P.W.-2. Their testimony on the whole appears to be coherent and inspires confidence. Witnesses P.W.-1 and P.W.-2 are creditworthy.

While vetting the merit of the incident, the trial judge has rightly convicted the appellant for committing offence under Section 352 I.P.C. and has rightly awarded punishment in the shape of fine only for Rs.500/- and in case of default in payment of fine to suffer additional imprisonment for one month. No good ground exist for interference.

The judgment and order of conviction and sentence dated 20.2.1996 passed by the trial court is hereby affirmed and upheld.

Consequently, this appeal is dismissed.

The appellant may deposit the amount of fine Rs.500/- within a period of two month, failing which he would have to suffer additional imprisonment for one month period.

Let a copy of this order be certified to the trial court concerned for information and necessary follow up action.

Order Date :- 25.10.2018

S Rawat