Ram Bahadur vs State Of U.P. And Another
2021 Latest Caselaw 2627 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Reserved on  08.02.2021
 
Delivered on 19.02.2021
 
Court No. - 68
 

 
Case :- CRIMINAL REVISION No. - 2795 of 2017
 

 
Revisionist :- Ram Bahadur
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Vidya Kant Rai,Sushil Kumar Pandey
 
Counsel for Opposite Party :- G.A., ,Suneel Kumar
 

 
Hon'ble Samit Gopal,J.

1. The present revision has been preferred against the judgment and order dated 29.07.2017 passed by the Additional Sessions Judge, Court No.2, Pilibhit in Criminal Appeal No. 07 of 2015 (Ram Bahadur Vs. State of U.P.), by which, the appeal has been partly allowed and the judgment and order dated 23.02.2016 passed by the Additional Chief Judicial Magistrate, Court No.1, Pilibhit by which the conviction of the appellant under Section 504 IPC to one year rigorous imprisonment, fine of Rs. 500/- and in default of payment of fine to five days further imprisonment has been set aside but in so far as the judgment and order of conviction of the appellant under Section 326 IPC to five years rigorous imprisonment, fine of Rs. 1,000/- and in default of payment of fine, twenty days additional imprisonment and under Section 506 IPC to one year rigorous imprisonment, a fine of Rs. 500/- and in default of payment of fine, five days simple imprisonment is concerned has been affirmed.

2. The appellant was convicted and sentenced vide judgment and order dated 23.02.2015 passed by the Additional Chief Judicial Magistrate, Court No.1, Pilibhit in Criminal Case No. 2363 of 2011 (State of U.P. Vs. Ram Bahadur and others) under Section 326 IPC to five years rigorous imprisonment, fine of Rs. 1,000/- and in default of payment of fine to twenty days additional imprisonment, under Section 504 IPC to one year rigorous imprisonment, fine of Rs. 500/- and in default of payment of fine to five days further imprisonment and under Section 506 IPC to one year rigorous imprisonment, a fine of Rs. 500/- and in default of payment of fine to five days imprisonment (concerning Case Crime No. 265 of 2007 under Sections 326, 504, 506 IPC, P.S. Diyoriya Kalan, District Pilibhit.). The trial court had ordered the sentences to run concurrently.

3. Two other accused, namely, Gayadeen and Sri Krishna @ Krishna Kumar were also convicted and sentenced vide the same judgment and order dated 23.02.2015, under Section 323/34 IPC to one year rigorous imprisonment, a fine of Rs. 500/- and in default of payment of fine to five days imprisonment, under Section 504 IPC to one year rigorous imprisonment, a fine of Rs. 500/- and in default of payment of fine to five days imprisonment and under Section 506 IPC to one year rigorous imprisonment, a fine of Rs. 500/- and in default of payment of fine to five days imprisonment. The sentences were ordered to run concurrently. The accused Gayadeen and Sri Krishna @ Krishna Kumar have been released on Probation of Offenders Act, 1958.

4. Accused Ram Bahadur preferred an appeal against the judgment and order of conviction dated 23.02.2015 which was partly allowed and the conviction and sentence under Sections 326, 506 IPC was maintained by the appellate court but his conviction and sentence under Section 504 IPC was set aside. The present revision has thus been filed before this Court.

5. Heard Sri Madhu Ranjan, learned counsel for the revisionist, Sri Suneel Kumar, learned counsel for the opposite party no.2 and Sri Ankit Srivastava, learned brief holder for the State and perused the records of the present revision and also the records of the trial court and the appellate court.

6. The incident in the present case is said to have taken place on 05.09.2007 at about 07:00 PM in village Rahpura, Police Station Diyoriya Kalan, District Pilibhit regarding which an oral report was got registered by Sher Singh (PW-1) on 06.09.2007 at 12:15 PM which was registered as a Non-Cognizable Report No. 102 of 2007, under Sections 323, 504, 506 IPC, P.S. Kotwali Diyoriya Kalan, District Pilibhit against Ram Bahadur, Gayadeen and Sri Krishna @ Krishna Kumar stating therein that his brother Suchha Singh had gone to the jungle for grazing of his cows where some cows went missing, on which, Suchha Singh launched a search and reached Rahpura village where the accused were sitting and met him, to whom, his brother asked about his missing cows. The accused persons had a previous enmity with his brother, on being asked, they became agitated and started abusing his brother and assaulted him with kicks, fists, lathi and danda, on which, his brother raised a shout, hearing which some persons reached the place and rescued him, on which, the said persons threatened him of his life and ran away. It is further stated in the oral report that the informant has brought him to the Police Station and the incident has been told to him by his brother Suchha Singh who has received injuries. The said oral report is Exb: Ka-1 to the records.

7. The injured Suchha Singh was then taken to the District Hospital by Police Home Guard where he was medically examined on 06.09.2017 at 05:00 PM by the Emergency Medical Officer of the District Hospital, Pilibhit. He received the following injuries:-

"1. A incised wound of 11cm x 7cm x muscle deep on left thigh with extravasation of under structures. Margins of wound are clean and dry and stuffed with clotted blood. Movement restricted and tenderness present. Kept under observation. Advised X-ray.

2. A incised wound of 5cm x 1cm x muscle deep on left thigh anterior aspect, 5cm from injury no.1. Margins of wound are dry and clean and stuffed with clotted blood.

3. A traumatic swelling deformity in an area of 4cm x 3cm on back of left wrist and joint, kept under observation and advised X-ray.

4. Complaint of pain in back.

The doctor conducting the medical examination of the injured opined that the injury nos. 1, 2 and 3 are caused by sharp object and hard and blunt object. Injury No. 2 is simple in nature while injury nos. 1 and 3 were kept under observation and advised X-ray. The said injury report is Exb: Ka-4 to the records.

8. X-ray examination of Suchha Singh was conducted on 10.09.2007 and the doctor gave the following report:-

"X-ray left thigh - There is fracture shaft of femur no callus seen.

X-ray left forearm with wrist - There is fracture in lower end of radius seen."

The X-ray examination report is Exb: Ka-3 to the records.

9. After the medical examination was conducted on Suchha Singh, the present case was converted from a Non Cognizable Report to a regular case and was registered as Case Crime No. 265 of 2007, under Sections 308, 504, 506 IPC, P.S. Diyoriya Kalan, District Pilibhit on 06.09.2007. Subsequently, the same case was converted from a case under Sections 308, 504, 506 IPC to one under Sections 326, 504, 506 IPC on 27.10.2007.

10. The investigation in the matter was concluded and a charge sheet no. 118 of 2007 dated 31.10.2007 was submitted against Ram Bahadur, Gayadeen and Sri Krishna @ Krishna Kumar under Sections 326, 504, 506 IPC. The same is Exb: Ka-6 to the records.

11. The trial court vide order dated 05.03.2008 framed charges against accused Ram Bahadur, Gayadeen and Sri Krishna @ Krishna Kumar under Sections 326/34, 504, 506 IPC. The accused denied the charges and claimed to be tried.

12. The trial in the present matter started, in which, Sher Singh was produced as PW-1 who is brother of the injured Suchha Singh and the informant in the matter, Suchha Singh was produced before the court as PW-2 who is the injured in the matter and the brother of PW-1, Head Constable Pravesh (PW-3) is the Constable clerk who was registered the Non-Cognizable Report, Doctor Udaiveer Singh (PW-4) gave the report of X-ray examination, Doctor Pramod Kumar Joshi (PW-5) who conducted the medical examination of the injured Suchha Singh in the District Hospital, Pilibhit, Satnam Singh (PW-6) who was produced as an eye witness of the incident and Head Constable Ramesh Pal Singh (PW-7) who identified the writing of the police officials and proved the site plan and charge sheet.

13. Amongst the seven prosecution witnesses examined in the trial Suchha Singh (PW-2) is the injured witness and Satnam Singh (PW-6) was an alleged eye witness of the incident. Satnam Singh (PW-6) did not support the prosecution case and was declared hostile.

14. Sher Singh (PW-1) is not an eye witness of the incident and he had reached the place of occurrence after receiving information about the incident and then he had taken his brother Suchha Singh (PW-2) in an injured condition to the Police Station and had got a Non Cognizable Report registered on the basis of oral information given at the Police Station.

15. The revisionist in his statement under Section 313 Cr.P.C. has denied the incident and has stated that the present case has been instituted falsely due to enmity. It is further stated that the informant is a person of criminal nature and has been convicted in a matter. No defence evidence was led.

16. The trial court convicted accused persons as stated above. An appeal was filed against the said judgment and order of conviction by Ram Bahadur only and it was partly allowed and the conviction and sentence under Section 504 IPC was set aside whereas the conviction and sentence under Sections 326 IPC and 506 IPC of the appellant was maintained.

17. Learned counsel for the revisionist argued that the prosecution case as stated by the first informant, initially in the Non Cognizable Report after being told about the same by the injured Suchha Singh was of assault by all the three accused persons by kicks, fists, lathi and danda, but later on, while being examined in the trial, he gave the role of assaulting upon Suchhha Singh by kulhari to Ram Bahadur, by lathi and danda by Gayadeen and Sri Krishna @ Krishan Kumar and then Suchha Singh PW-2 assigned the role of assault on him by kulhari by Ram Bahadur and by lathi by co-accused Gayadeen and Krishna @ Krishna Kumar which was an improvement in the prosecution case and was after seeing the injuries which was as a result of an afterthought, deliberation and consultation. It is further argued that the present case is it stands is a case of sudden fight. It is argued that there is an inordinate delay of about five hours and fifteen minutes in lodging of the Non Cognizable Report which is unexplained. It is argued that the medical examination of Suchha Singh was conducted after a delay about 22 hours from the incident. It is further argued that there is no independent eye witness to support the prosecution case and the only independent eye witness as produced by the prosecution has not supported the prosecution case and has been declared hostile.

18. It is further argued that there is no supplementary medical examination report to opine regarding the nature of other injuries received by Suchha Singh, particularly, injury nos. 1 and 3. The injury no.2 was opined to be simple in nature but as the X-ray examination was conducted and there were fractures seen but there is no supplementary medical examination report to opine regarding the nature of the said injuries. Learned counsel for the revisionist has further argued that till now the appellant has undergone about 3 years 9 months and 23 days in jail whereas the maximum conviction is of five years. The period of incarceration in jail has been stated to be as follows:-

Serial No.

Particular

Date

1.

Revisionist surrendered before the court below

22.09.2007

2.

Bail granted by the Sessions Judge, Pilibhit as an under trial

17.01.2008

3.

Judgment and order of conviction

23.02.2015

4.

Bail granted in Appeal by the In-charge Sessions Judge, Pilibhit

02.03.2015

5.

Appeal dismissed

29.07.2017

19. It is argued that since 29.07.2017 the revisionist is in jail after his appeal was dismissed and the said period of his being in jail is about three years and six months. Learned counsel further argued that looking to the total period of incarceration, the sentence awarded to the revisionist be reduced to the period already undergone and the revision be thus allowed and the revisionist be directed to be released from jail. It is further argued that there is no motive for the revisionist to commit the aforesaid offence and no motive whatsoever have been stated in the present case but it has only been stated that he was having enmity with the injured which is too vague. It is argued that the incident had taken place in the year 2007 i.e. thirteen years back.

20. Per contra, learned counsel for the opposite party no.2 and the learned brief holder for the State opposed the present revision. It is argued that Suchha Singh received injuries and the revisionist was the person and he has been assigned the role of assaulting the injured with kulhari on his thigh as a result of which he received a fracture and also a fracture of his wrist. It is argued that the medical examination report and the X-ray report corroborates with the prosecution evidence. The present revision be dismissed.

21. The prosecution case as per the Non Cognizable Report lodged by Sher Singh (PW-1) is of assault by three accused persons, namely, Ram Bahadur, Gayadeen and Sri Krishna @ Krishna Kumar on Suchha Singh (PW-2) by kicks, fists, lathi and danda which was mentioned by him in the Non Cognizable Report after being told by Suchha Singh himself. In the said report, there is no reference of the use of kulhari upon Suchha Singh. Further, there is no specification of the use of weapons in the said report. On the own showing of the informant Sher Singh, he reached the place of occurrence of hearing about the incident and then took his brother Suchha Singh to the Police Station and got his oral report registered. The fact regarding the use of kulhari and the bleeding injuries present on the body of Suchha Singh is missing in the said report. The assault by kulhari by the revisionist has been introduced later on in the present case. There is no independent witness to the incident in spite of the fact that the place of occurrence as per the site plan was surrounded by houses. The other eye witnesses Satnam Singh (PW-6) did not support the prosecution case right from the inspection and was declared hostile. Out of the maximum conviction of five years as awarded the revisionist has already undergone about 3 years 9 months and 23 days of incarceration.

22. Coming to the point of sentence in the present matter, since the incident took place 13 years ago, the revisionist - accused had given his age as 50 years in his statement recorded under Section 313 Cr.P.C. on 30.06.2011 and their is no observation of the trial judge disputing the same, he is now aged about 60 years and has faced protracted trial in two courts, he had no motive to commit the aforesaid offence, the enmity between the parties is not proved, the sole independent witness Satnam Singh (PW - 6) did not support the prosecution case and was declared hostile and the revisionist - accused has undergone about 3 years 9 months and 23 days of incarceration till the date of the reserving of the judgment out of the maximum sentence of 5 years awarded to him, the sentence as awarded to him is not likely to serve any useful purpose and shall not be commensurate with the offence.

23. The conviction of the revisionist for offences under Section 326 and 506 I.P.C. is hereby confirmed. The sentences awarded on both the counts is hereby reduced to the period already undergone. The fine of Rs. 1000/- and Rs. 500/- respectively is maintained. The same shall be deposited forthwith by the revisionist if not already deposited.

Further, a sum of Rs. 25,000/- (Rupees Twenty Five Thousand) is imposed as compensation upon the revisionist to be paid to the injured Suchha Singh (PW-2) or his legal heirs as the case may be. The same is directed to be paid within 45 days of the release of the revisionist.

24. The revisionist is in jail, he shall be released forthwith unless wanted in any other case.

25. The trial court records be sent back to the court concerned alongwith a copy of this judgment and order for its compliance.

26. Further, it is made clear that if the fine as awarded by the trial court and the compensation as imposed by this court is not deposited by the revisionist, he shall undergo the sentence as per the judgement and order dated 29.07.2017 of the appellate court.

27. Hence, in the result the revision is partly allowed.

28. The party(ies) shall file computer generated copy of such judgment downloaded from the official website of High Court Allahabad before the concerned Court/Authority/Official.

29. The computer generated copy of such judgment shall be self-attested by the counsel(s) of the party(ies) concerned.

30. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the judgment from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 19.02.2021

M. ARIF

(Samit Gopal,J.)