Uttarakhand High CourtBhupendra Singh And Others ... vs State Of Uttarakhand on 19 September, 2022Author:Ravindra MaithaniBench:Ravindra MaithaniIN THE HIGH COURT OF UTTARAKHAND AT NAINITAL\n\n            Criminal Revision No. 102 of 2011\n\n\nBhupendra Singh and others                   ...........Revisionists\n\n                                  Vs.\n\nState of Uttarakhand                             ..... Respondent\n\n\nMr. Maneesh Bisht, Advocate holding brief of Mr. Vipul Sharma,\nAdvocate for the revisionists.\nMr. V.K. Jemini, Deputy Advocate General for the State of Uttarakhand.\nMr. B.D. Pande, Advocate for the informant.\n\n\n\n                           JUDGMENTHon'ble Ravindra Maithani, J. (Oral)\n\n                By means of the instant revision, the\n\nfollowing judgment and orders are to put to challenge:-(A)      Judgment        and     order    dated     08.12.2010,\n\n            passed in Criminal CaseNo.1481 of 2008,\n\n            State Vs. Bhupendra Singh and others, by the\n\n            court of Chief Judicial Magistrate, Udham\n\n            Singh Nagar ("the case").By it, the revisionist\n\n            have been convicted underSections 323IPC\n\n            and sentenced to six months imprisonment\n\n            and,\n\n   (B)      Judgment        and     order    dated     16.05.2011,\n\n            passed in Criminal Appeal No.196 of 2010,\n\n            Bhupendra Singh and others Vs. State of\n\n            Uttarakhand, by the             court of     Additional2Sessions        Judge/IInd    F.T.C.      Udham     Singh\n\n          Nagar        (for    short,   "the     appeal")     which\n\n          confirmed the order passed in the case.2.             Heard learned counsel for the parties and\n\nperused the record.3.             Facts      necessary      to      appreciate     the\n\ncontroversy,    briefly       stated,   are    as    follows.   On\n\n10.02.2008, at about 10 AM, PW1 Ganpath was\n\nassaulted by the revisionists armed with lathi-danda,\n\nsword, etc. and attacked, due to which, he became\n\nunconscious and fell on the ground. The wife and\n\ndaughter of PW1 Ganpath were also assaulted and\n\nattacked. A report of the incident was given on\n\n11.02.2008 at 09:45 PM by PW2 Ganga Sagar. Based on\n\nwhich, a Case Crime No.287 of 2008, underSections\n\n147,452,323,506IPC was lodged. After investigation,\n\ncharge-sheet was submitted against the revisionists\n\nnamely, Bhupendra Singh, Jitendra Singh and Vinod\n\nSingh. Subsequently, during trial other revisionists,\n\nnamely Ranvijay Singh, Dhruv Singh and Bhim Singh\n\nwere also summoned underSection 319of the Code of\n\nCriminal Procedure, 1973 (for short, "the Code") to face\n\ntrial along with the existing accused. On 05.12.2012,\n\ncharge underSections 323,506IPC was levelled against3the revisionists Ranvijay Singh, Dhruv Singh and Bhim\n\nSingh and on 17.10.2008, charge underSections 323,506IPC was framed against Bhupendra Singh, Jitendra\n\nSingh and Vinod Singh. They have denied the charge\n\nand claimed trial.4.               The prosecution in order to prove its case\n\nexamined five witnesses namely, PW1 Ganpath, PW2\n\nGanga Sagar, the informant, who is one of the victim,\n\nPW3 Dr. Shalini Sharma, PW4, the Investigating Officer\n\nSub-Inspector T.S. Khati and PW5 Sumit Kumar.5.               The    revisionists   were     examined      underSection 313of the Code. They denied the prosecution\n\nevidence. In defence DW1 Dr. Dheer Singh has been\n\nexamined. After hearing the parties, by the impugned\n\njudgment and order dated 08.12.2010, passed in the\n\ncase, all the revisionists have been convicted underSection   323IPC     and    sentenced     to   six   months\n\nimprisonment.          The order dated 08.12.2010, passed in\n\nthe case, has been unsuccessfully challenged in the\n\nappeal.6.               Learned counsel for the revisionists would\n\nsubmit    that    the     court   below   did    not   take    into\n\nconsideration the important piece of evidence. Reference\n\nhas been made to the statement of PW3 Dr. Shalini4Sharma,     who    on    25.05.2010,         proved     that   on\n\n10.02.2008, she also medically examined the revisionists\n\nBhupendra Singh and Jitendra Singh and found injuries\n\non their person. It is argued that the prosecution has not\n\nexplained those injuries.7.            It is submitted that, in fact, the dispute\n\nwas with the revisionists Bhupendra Singh and Jitendra\n\nSingh only and other revisionists have been falsely\n\nimplicated. It was a free fight, in which, the victim\n\nGanpath sustained injuries. Apart from it, it is also\n\nargued that Vinod Singh and Bhim Singh were working\n\nat their place of job at the date of incident. But, this plea\n\nwas wrongly not accepted by the court below.8.            On   the   other       hand,    learned    counsel\n\nappearing for the informant would submit that the\n\nprosecution has been able to prove its case beyond\n\nreasonable doubt. There is no reason to make any\n\ninterference in this revision.9.            Learned counsel for the revisionists would\n\nsubmit that in appeal, on behalf of the revisionists\n\nJitendra Singh and Bhupendra Singh, it is argued that\n\nthey were in jail at the time of incident, hence, they were\n\nfalsely implicated whereas, in this Court, it is being\n\nargued that, in fact, they only were involved in the5incident and rest of the revisionists have been falsely\n\nimplicated.10.            Learned State counsel would submit that\n\nthe witnesses have proved the prosecution case.11.            It is argued that the witnesses have not\n\nasked anything about the injuries on the person of the\n\nrevisionists Jitendra Singh and Bhupendra Singh.\n\nTherefore, they cannot take any benefit of doubt.12.       This is a revision, the scope is quite limited to\n\nthe   extent   of   examining   legality,   propriety   and\n\ncorrectness of the impugned judgment and order.\n\nAppreciation of evidence is beyond the scope of revision\n\nunless the finding is perverse i.e. without any weight of\n\nevidence. Evidence is also appreciated in the cases\n\nwhere material evidence is ignored or irrelevant material\n\nis considered while passing the impugned judgment and\n\norder.13.       Learned counsel for the revisionists would\n\nsubmit that with regard to the injuries of Jitendra Singh\n\nand Bhupendra Singh, witnesses had not been asked on\n\nbehalf of the revisionists that how did the revisionists\n\nJitendra Singh and Bhupendra Singh sustained injuries.\n\nHe would submit that in the impugned judgment and6order also, this aspect has not been considered, in fact,\n\nit is placed for the first time in this revision.14.        PW1 is the victim Ganpath, who has stated\n\nthat on the date of incident i.e. on 10.02.2008, at about\n\n10:00 in the morning, he was assaulted by the\n\nrevisionists by lathi-danda and with other weapons, due\n\nto which, he sustained certain injuries. PW2 Ganga\n\nSagar, is the informant, who is son of the victim. He has\n\nalso corroborated in the statement of PW1 including FIR.\n\nPW3 is Dr. Shalini Sharma, she proved injuries on the\n\nperson of PW1 Ganpath, according to her, the injuries\n\nwere simple. In her cross-examination, she was asked to\n\nstate about the medical examination of the revisionists\n\nBhupendra Singh and Jitendra Singh, which she\n\nexplained. She found four injuries on the person of the\n\nrevisionist Bhupendra Singh, which according to her,\n\nwere simple, as such, one injury was kept under\n\nobservation. Similarly, according to her, she found four\n\ninjuries on the person of the revisionist Jitendra Singh\n\nand they were also simple. She was not asked about any\n\nadditional medical examination report. PW4 T.S. Khati is\n\nthe Investigating Officer, who has proved the site plan\n\nand other documents and submitted the charge-sheet.\n\nPW5 Sumit Kumar is an eyewitness, he has supported\n\nthe prosecution case.715.       On behalf of the revisionists DW1, Dr. Dheer\n\nSingh, who was working as a Joint Director in the\n\nResearch Centre of Pantnagar University has been\n\nexamined. According to him, on 10.02.2008, Vinod\n\nKumar and Bhim Singh were on duty. They had signed\n\nthe documents. In the cross-examination, he has stated\n\nthat he did not see the revisionists Vinod Kumar and\n\nBhim Singh in the office on that date.16.In the case ofState of Gujarat vs. Bai Fatima\n\nand another, (1975)2 SCC 7, the Hon'ble Supreme Court\n\nin para no.17, observed as hereunder:-"17. In    a   situation   like   this   when   the\n          prosecution fails to explain the injuries on the person\n          of an accused, depending on the facts of each case,\n          any of the three results may follow:(1) That the accused had inflicted the injuries\n                on the members of the prosecution party in\n                exercise of the right of self-defence.\n\n                (2) It makes the prosecution version of the\n                occurrence doubtful and the charge against the\n                accused cannot be held to have been proved\n                beyond reasonable doubt.(3) It does not affect the prosecution case at all.Question is in which category the present case\n                falls?".17.In the case ofLakshmi Singh and others vs.\n\nState of Bihar, (1976)4 SCC 394, the Hon'ble Supreme8Court while discussing the law on the point observed as\n\nhereunder:-" in a murder case, the non-explanation of the\n\n          injuries sustained by the accused at about the time of\n          the occurrence or in the course of altercation is a very\n          important circumstance from which the court can\n          draw the following inferences:"(1) that the prosecution has suppressed the\n                genesis and the origin of the occurrence and\n                has thus not presented the true version;(2) that the witnesses who have denied the\n                presence of the injuries on the person of the\n                accused are lying on a most material point and\n                therefore their evidence is unreliable;(3) that in case there is a defence version which\n                explains the injuries on the person of the\n                accused it is rendered probable so as to throw\n                doubt on the prosecution case."18.       Hon'ble Supreme Court further observed that,\n\n"The omission on the part of the prosecution to\n\nexplain the injuries on the person of the accused\n\nassumes    much      greater       importance      where     the\n\nevidence consists of interested or inimical witnesses\n\nor where the defence gives a version which competes\n\nin probability with that of the prosecution one."19.       Instant is the case of simple injuries. All the\n\nrevisionists have been convicted and sentenced underSection 302IPC.920.        Defence has no version. Defence has not come\n\nup with the case, as to how the revisionists Jitendra\n\nSingh and Bhupendra Singh sustained injuries. They\n\nhave not stated anything. Merely, PW3 Dr. Shalini\n\nSharma was asked to state about the examination,\n\nwhich she conducted, she has stated that they were\n\nsimple injuries on that day. How could they sustained\n\ninjuries? It is not defined.21.        On behalf of the revisionists in this Court, it is\n\nargued that the incident took place only with revisionists\n\nJitendra Singh and Bhupendra Singh. They both had\n\nsustained injuries and other revisionists have been\n\nfalsely implicated. But, strangely in the appeal against\n\nthe impugned judgment passed in the case, on behalf of\n\nthe revisionists, it was argued that, in fact, at the time of\n\nincident revisionists Jitendra Singh and Bhupendra\n\nSingh were in jail. In page 5, first paragraph of its\n\narguments and thereafter, discussion has been done by\n\nthe court in appeal. How could the revisionists Jitendra\n\nSingh and Bhupendra Singh sustain injuries, if they\n\nwere in jail? And if, they were the only persons, who had\n\nsome free fight with the informant and the victim, they\n\ncould not have been in the jail at the same time. The\n\ninjuries which PW3 Dr. Shalini Sharma detected on the\n\npersons    of   the   revisionists   Jitendra   Singh   and10Bhupendra Singh are simple in nature. The victim or\n\nany other witness has not been questioned by the\n\nrevisionists about the injuries allegedly sustained by\n\nJitendra Singh and Bhupendra Singh.22.        Having considered this aspect, in fact, merely\n\nbecause some simple injuries were detected on the\n\nperson of the revisionists Jitendra Singh and Bhupendra\n\nSingh, the prosecution case does not become doubtful. It\n\nhas no effect on the prosecution case.23.        Witnesses have stated about the case. Parties\n\nwere neighbours. In fact, it was an unfortunate incident.\n\nAccording to the prosecution case, on the date of\n\nincident   firstly   revisionists   Jitendra   Singh   and\n\nBhupendra Singh started teasing, facing the house of\n\nthe injured or informants, they started peeing. The sister\n\nof PW2 Ganga Sagar was sitting in the house. They\n\nobjected to the act of the revisionists Jitendra Singh and\n\nBhupendra Singh. This is the igniting point. Thereafter,\n\naccording to the prosecution case, the revisionists\n\nattacked PW1 Ganpath. He sustained simple injuries.24.        In view of it, this Court is of the view that the\n\ncourt below did not commit any error in convicting the\n\nrevisionists.1125.       The revisionists have been sentenced to six\n\nmonths' imprisonment.26.       No arguments have been advanced on the\n\nquestion of sentence. This Court is of the view that the\n\npart of the sentence needs to be revisited. It is a dispute\n\nbetween two neighbours. They have nothing against\n\neach other. According to the prosecution, a simple act of\n\nindecency on the part of the revisionists Jitendra Singh\n\nand Bhupendra Singh, ignited both the parties. The\n\nissue was peeing while facing towards the house of the\n\ninformant. It is not on record that the revisionists or any\n\nof them, is a previous convict.27.       Having considered the entirety of facts, this\n\nCourt is of the view that instead of sentencing at once,\n\nthe interest of justice would be better served, if the\n\nrevisionists are released on probation.28.       The revision is partly allowed.29.       The   conviction    of   the   revisionists   underSection 323IPC is upheld. It does not require any\n\nmodification. However, instead of sentencing at once, let\n\nthe revisionists be released on probation of good conduct\n\nfor a period of 6 months subject to their furnishing a\n\npersonal bond and two sureties, by each one of them, to12the satisfaction of the court concerned and in the\n\nmeantime to keep the peace and be of good behaviour.30.       The impugned judgments and orders are\n\nmodified to the extent, as indicated above.(Ravindra Maithani, J.)\n                                              19.09.2022\nSanjay