Allahabad High Court

Ramesh Dwevedi vs State Of U.P. on 16 February, 2023

Bench: Renu Agarwal




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

											Reserved on  23.01.2023
 
 Delivered on 16.02.2023
 
Court No. - 28
 
Case :- CRIMINAL REVISION No. - 49 of 2005
 
Revisionist :- Ramesh Dwevedi
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- S.P.Pandey,Shiv Kumar Yadav
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Mrs. Renu Agarwal,J.

1. The present Criminal Revision under Sections 397/401 Cr.P.C. has been filed against the Judgment and Order dated 17.01.2005 passed by Additional Sessions Judge, Court No.9, Lucknow in Criminal Appeal No.110 of 2004 (Ramesh Dwivedi Vs. State of U.P.) confirming the sentence of five months simple imprisonment and imposition of fine of Rs.500/- only, which arised out from the judgment and order dated 18.10.2004 passed by Additional Chief Judicial Magistrate, Court No.27, Lucknow in Case No.256 of 2004 (State Vs. Ramesh Dwivedi) arising out of Case Crime No.281 of 1991, under Sections 323, 504, 506 I.P.C., Police Station Alambagh, District Lucknow by which the revisionist was sentenced under Section 323 I.P.C. for five months simple imprisonment and fine of Rs.500/-.

2. Wrapping the facts of the case in brief, on 27.10.1991 at about 11:00 a.m. near the quarter (room) of Vishnudev, accused Ramesh Dwivedi inflicted injuries to informant Rajesh Kumar Kushwaha and Bijendra Prajapati from the butt of the pistol.

3. Accused was charged with the allegation under Sections 323, 504, 506 I.P.C., which he denied and claimed to be tried.

4. Learned trial court found that on the basis of prosecution evidence that revisionist Ramesh Dwivedi inflicted injuries to informant Rajesh Kumar Kushwaha and Bijendra Prajapati and the prosecution proved its case against the accused-revisionist beyond reasonable doubt. Learned trial court convicted the revisionist under Section 323 I.P.C. only and acquitted him from the allegation and charges levelled against him under Sections 504 and 506 I.P.C. Finding the revisionist guilty, learned A.C.J.M. court sentenced him under Section 323 I.P.C. for five months simple imprisonment and fine of Rs.500/-. The judgement and order dated 18.10.2004 passed by Addtional Chief Judicial Magistrate, Court No.27, Lucknow was challenged before first appellate court i.e. Additional Sessions Judge, Court No.9, Lucknow in Criminal Appeal No.110 of 2004 (Ramesh Dwivedi Vs. State of U.P.), who confirmed the judgment and order dated 18.10.2004 and dismissed the appeal on the ground that from the perusal of the statement of Smt. Hemanti, it is clear that she was not an eye-witness of the case, as she was cooking food in the kitchen at the time, when this incident took place. However, it is not necessary for every criminal case that there should be an eye-witness to support the prosecution story.

5. The presence of Smt. Hemanti at the place of occurrence cannot be denied, as she stated in his statement that she immediately came out when the incident took place and saw that Rajesh Kumar Kushwaha and Bijendra Prajapati sustained injuries. The trial court on the basis of the statement of P.W.-2 Smt. Hemanti, the independent witness and the evidence of injured Rajesh Kumar Kushwaha and Bijendra Prajapati, dismissed the first appeal vide order dated 17.01.2005 and confirmed the sentenced passed by the Additional Chief Judicial Magistrate, Court No.27, Lucknow vide order dated 18.10.2004.

6. Being aggrieved with the judgment and order of trial court dated 18.10.2004 and the judgment and order dated 17.01.2005, convicted revisionist Ramesh Dwivedi has approached this Court by way of filing the present revision.

7. Heard Shri Shiv Kumar Yadav, learned counsel for the revisionist, Shri Veer Raghav Chaubey, learned A.G.A for the State and perused the material available on record.

8. Learned counsel for the revisionist stated that P.W.-2 Smt. Hemanti W/o Vishnudev is not an eye-witness of the incident and there is discrepancy in the date of incident, as P.W.-2 has stated in his examination-in-chief that the alleged incident took place on 25.10.1991. However, P.W.-5 Bijendra Prajapati has stated that the alleged occurrence took place on 27.10.1991. It is also submitted that the eye-witness Bijendra Prajapati has turned hostile and has specifically stated that neither the revisionist had beaten him nor he had identified the assailants. He further argued that the judgment and order passed by trial court and the first appellate court are based upon the presumptions, therefore, the judgment and order dated 18.10.2004 and 17.01.2005 are against the principles of natural justice and are liable to be set aside.

9. Per contra learned AGA for the State submitted that P.W.-2 Smt. Hemanti is eye witness of the case, who came out immediately after the incident after hearing hue and cry and saw that Rajesh Kumar Kushwaha and Bijendra Prajapati sustained injuries on account of being beaten by accused Ramesh Dwivedi. It is also submitted P.W.-1 injured Rajesh Kumar Kushwaha lodged the FIR and during the statement in his trial he has fully corroborated the case of prosecution. The injury report is also on record. Therefore, the judgment and order passed by learned trial court is based on the evidence produced by the prosecution during the trial. Therefore, the judgment and order passed by the trial court and the first appellate court is liable to be confirmed.

10. During the course of argument, learned counsel for the revisionist confined himself only on the point of punishment and he relinquished to argue on merits. It is prayed by learned counsel for the revisionist that revisionist was posted in Adarsh Karagar, Lucknow and he had now retired from service. He is now an old age person. He may be released on first offender. However, he is ready to deposit the amount of fine whichever be fixed by Court.

11. The FIR was lodged by the complainant Rajesh Kumar Kushwaha, posted as stenographer in Adarsh Karagar, Lucknow. The genesis of dispute arose when the injured Rajesh Kumar Kushwaha and Bijendra Prajapati were preparing food, the accused Ramesh Dwivedi started abusing them and when they tried to stop him from abusing the accused Ramesh Dwivedi started beating both of them. Injured Bijendra Prajapati was medically examined by Doctor P.C. Gupta and following injuries were found on his body:-

(A) Lacerated wound 5 c.m. x 0.5 c.m. x scalp deep, 15.15 c.m. over left ear.

(B) Lacerated wound 3 c.m. x 0.8 c.m. x scalp deep, 2.5 c.m. infront of injury no.1.

(D) Lacerated wound 1.0 c.m. x 0.3 c.m. x muscle deep, on the left finger at the back side.

(E) Contusion 1.0 c.m. x 1.0 c.m., on the top and back of ring finger.

Injured Rajesh Kumar Kushwaha was also medically examined by Doctor P.C. Gupta and following injuries were found on his body:-

(A) Lacerated wound 1.5 c.m. x 0.3 c.m. x scalp deep, on the left side of forehead 5.0 c.m. above eyebrow.

(B) Lacerated wound 1 c.m. x 0.3 c.m. x scalp deep, on the right side of forehead, above 7.00 from right eyebrow.

(D) Abrasion 1.0 c.m. x 3.0 c.m., on the upper part of nose.

(E) Abrasion 1.0 c.m. x 1.0 c.m., on the left knee.

The doctor proved all the injuries as simple in nature.

12. Learned trial court did not found the case under sections 504 & 506 IPC proved against the accused Ramesh Dwivedi and the accused is acquitted from the charges under sections 504 and 506 IPC by the trial court. The accused is convicted only under section 323 IPC on the basis of injuries found on the person of both the injured.

13. The incident arose on petty issues, but the injuries are proved to have inflicted on the person of both the injured, however, the injuries are found simple in nature by the doctor. Learned counsel for the revisionist did not disputed the order of conviction and he argued only to commute the sentence to the period already undergone by the revisionist.

14. From the perusal of record it is apparent that the injuries inflicted to the injured are simple in nature and inflicted with the butt of pistol. One of the injured Rajesh Kumar Kushwaha did not support the prosecution version. Accused is now retired from services and he is an old aged person and if the period of incarceration is commuted to the period already undergone by him, the purpose of law shall be fulfilled. From the perusal of the record, it transpires that the case is old one of year 1991 and there is dispute arose on petty ground between the constables posted in Adarsh Karagar, Lucknow. Therefore, if the accused is released on the period already undergone by him and the fine is enhanced from Rs.500/- to Rs.5,000/-, it will substantiate the purpose of law.

15. In these circumstances, the judgment and order passed by the trial court dated 18.10.2004 and the judgement and order of appellant court dated 17.01.2005, are hereby by confirmed and the appeal is partly allowed. The period of incarceration is commuted to the period already undergone by the revisionist, however, the judgement and order is modified to the extent that the fine is enhanced from Rs.500/- to Rs.5,000/- under section 323 IPC, which will substantiate the purpose of law. The revisionist shall deposit the fine within one month from the date of production of a certified copy of this order in the court concerned.

16. Certified copy of the judgment be sent to the court below for necessary action. Bail bonds of the revisionist are cancelled and the sureties are discharged.

17. Lower court record, if any, be sent back to the District Judgeship, Lucknow, immediately.

(Renu Agarwal,J)

Order Date :-16.02.2023

Zafar/VKG/Karan