Dinesh vs State Of U.P.
2021 Latest Caselaw 1409 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 74							
 

 
Case :- CRIMINAL REVISION No. - 2426 of 2016
 

 
Revisionist :- Dinesh
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Surendra Pal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. This Revision is directed against a judgment and order of Mr. Vijay Kumar Gupta, the then Additional Sessions Judge, Court no. 3, Pilibhit, dated 20.05.2016, dismissing Criminal Appeal no. 4 of 2015, preferred by the revisionist. The appeal, last mentioned, had been carried from a judgment and order of Mr. Manoj Kumar Singh, the then Additional Chief Judicial Magistrate, Court no. 1, Pilibhit in Criminal Case no. 6154 of 2017, convicting the revisionist of offences punishable under Sections 324/34 and 504 of the Indian Penal Code, 18601 and sentencing him to suffer simple imprisonment for a term of one year for each of the two offences, and a fine of Rs. 1,000/- in relation to the offence under Section 324/34 I.P.C. In default, the revisionist is ordered to undergo ten days' imprisonment. All sentences have been directed to run concurrently.

2. According to the prosecution, litigation was pending between the informant, Deen Dayal and co-accused Ram Chandra. Ram Chandra is the revisionist's father. On 06.12.2005, the informant, along with his son Bhagwat Dayal, were returning to their village from the fields. As the duo of the father and son reached a culvert lying on the main road of the village, where it takes a turn, at about 6:00 O' clock in the evening, Ram Chandra and his son Dinesh (revisionist) assaulted the informant's son, abusing him. The revisionist was armed with a knife. The informant's son Bhagwat Dayal sustained knife and lathi injuries.

3. On the basis of a written report from Deen Dayal, Case Crime no. 723 of 2005 was registered at Police Station Bisalpur, District Pilibhit. The injured, Bhagwat Dayal was sent for a medico-legal examination of his injuries to the Community Health Centre, Bisalpur. He was further sent for an X-ray Examination to the District Hospital, Pilibhit. After investigation, a charge sheet was filed against Ram Chandra and Dinesh, under Sections 324 and 504 I.P.C.

4. The Magistrate took cognizance of the offences and proceeded to frame charges against the two accused, that is to say, the revisionist and his father, Ram Chandra, under Sections 324/34 and 504 I.P.C. Both the accused pleaded not guilty and claimed trial. They were tried together.

5. The prosecution examined five witnesses, to wit, Deen Dayal, PW-1, Bhagwat Dayal, PW-2, Netrapal, PW-3, Dr. Pankaj Saxena, PW-4 and Constable Brahm Swaroop Sharma, PW-5. No defence was entered on behalf of the accused and they led no evidence.

6. The statements of the accused under Section 313 Cr.P.C. were recorded on 04.07.2014. The Trial Court, on going through the evidence of the first informant, PW-1, Deen Dayal and his son, PW-2, Bhagwat Dayal, medico-legal reports and the evidence of the Doctor, held both the accused, put up for trial, guilty of offences under Sections 324/34 and 504 I.P.C. While the revisionist was sentenced in the manner indicated hereinabove, co-accused Ram Chandra, who has been assigned the role of wielding a lathi, was granted benefit of Section 4 of the Probation of Offenders Act, 1958, and admitted to probation of good conduct for a period of six months, on executing a personal bond in the sum of Rs. 15,000/-, besides two sureties to the satisfaction of the District Probation Officer, Pilibhit.

7. An appeal, from the judgment of conviction, was carried jointly by Ram Chandra and Dinesh (revisionist) to the learned Sessions Judge, Pilibhit. It was numbered as Criminal Appeal no. 4 of 2015. It came up for determination before the Additional Sessions Judge, Court no. 3, Pilibhit on 20.05.2016, who heard and dismissed the appeal, affirming the Trial Court.

8. Aggrieved, this revision has been filed by Dinesh alone.

9. Heard Mr. Surendra Pal, learned Counsel for the revisionist and Mr. Vinod Kant, learned Additional Advocate General assisted by Mr. Sanjay Sharma, learned A.G.A. appearing on behalf of the State.

10. It is argued by Mr. Surendra Pal, learned Counsel for the revisionist, that the impugned order is manifestly illegal, and draws perverse conclusion from the evidence on record. It is emphasized that the presence of PW-1 at the place of occurrence has been acknowledged by the Appellate Court to be not established, and yet the conviction has been sustained. He has, particularly, drawn this Court's attention towards the following finding recorded by the Appellate Court:

"अपीलार्थीगण/ अभियुक्तगण के विद्वान अधिवक्ता द्वारा यह तर्क प्रस्तुत किया गया है कि साक्षी पी.डब्लू-1 मौके का चश्मदीद साक्षी नहीं है। लेकिन इसके उपरांत भी अवर न्यायालय द्वारा चक्षुदर्शी साक्षी के रूप में स्वीकार करते हुये उसके साक्ष्य पर भरोसा करते हुये दंडादेश पारित किया गया है। जबकि मेरे द्वारा इस सम्बंध में पत्रावली का परिशीलन करने पर यह पाया जाता है कि साक्षी पी.डब्लू-1 घटना के समय मौके पर उपस्थित नहीं था तथा वह घटना का चश्मदीद साक्षी नहीं है। मैं अपीलार्थीगण के विद्वान अधिवक्ता द्वारा उठाये गये इस तर्क से पुर्णतया सहमत हूं कि साक्षी पी.डब्लू-1 मौके का साक्षी नहीं है।"

(Emphasis by Court)

11. It is urged that looking to the said finding, the entire prosecution story, which proceeds on a case of assault by the two accused in presence of the first informant on his son, Bhagwat Dayal, falls under such serious cloud of doubt that it is absolutely perverse to accept the prosecution version.

12. Learned Additional Government Advocate, on the other hand, emphasized that the medico-legal evidence and the evidence of injured witness, PW-2, Bhagwat Dayal, lends credence to the prosecution. He urges that the two Courts below have believed the prosecution and this Court ought not to interfere in the conviction recorded concurrently by the two Courts below in the exercise of its revisional jurisdiction.

13. It is true that there is this contradiction in the prosecution case, as set out in the First Information Report2, that the assault took place in the informant's presence, as the father and son were returning home from their fields, whereas in his evidence, PW-2, during trial, does not acknowledge his father's presence at the time of the incident. Rather, PW-2 says that after the occurrence and his return home, he told his father, PW-1, about the occurrence, who then scripted the first information and took him along to the police station, in order to get an F.I.R. registered.

14. The first informant, Deen Dayal, testified in the witness box, consistent with the injured's evidence, that at the time of assault, the injured alone was returning to the village. He did say in his evidence what he had stated in the F.I.R., that both the father and son were returning home, when the assault was committed. On this issue, there is hardly any cross-examination, much less something to create a doubt about the prosecution of that order, where the conclusions of the two courts below may be termed as perverse. The courts of fact below have taken one plausible view of the evidence. There is no warrant for this Court to take a different view, converting ourselves virtually into a court of open second appeal. Insofar as the finding of conviction is concerned, there is no such manifest illegality found in the orders impugned, as may warrant their reversal by this Court in its revsional jurisdiction. So far as the sentence awarded is concerned, the totality of the circumstances show that the maximum term awarded is one year, with a direction for the sentences to run concurrently. It is not the prosecution's case that the revisionist has any criminal history. He is a man in the mainstream of life, and has apparently got involved in the crime on account of a background of litigation between parties, along with his father, who has been let off on probation by the Trial Judge. The revisionist has done about three and a half months in jail, pending his release in appeal and this revision, after conviction recorded by the two courts below in two instances. In the opinion of this Court, no useful purpose would be served by sending the revisionist back to jail, to serve out the remainder of about seven and a half months term of the jail left for him. This Court is, therefore, of opinion that the simple imprisonment on each of the two counts, under Sections 324/34 and 504 I.P.C., ought to be reduced to the incarceration already suffered, pending appeal and revision. However, the fine of Rs. 1,000/- imposed for the offence punishable under Section 324/34 I.P.C. is enhanced to Rs. 5,000/-. In the event of non-payment of the fine within two months of date, it shall be recovered in accordance with law.

15. In the result, this revision succeeds and is allowed in part. The conviction is upheld, with a modification in the sentence, as ordered hereinabove.

16. Let the lower court records be sent down and judgment be certified to the trial court.

Order Date:- 22.01.2021

I. Batabyal / Anoop