HARI SINGH Vs. STATE OF UTTARAKHAND AND OTHERS
LAWS(UTN)-2012-3-62
HIGH COURT OF UTTARAKHAND
Decided on March 15,2012

HARI SINGH Appellant
VERSUS
State of Uttarakhand and others Respondents

JUDGEMENT

Barin Ghosh, C.J. - (1.) A First Information Report, lodged on 21st March, 1999 at 2:30 PM, was investigated upon and, thereafter, a charge sheet was filed and on the basis thereof, charges were framed under Sections 307, 323, 324, 325, 504 and 506 of the Indian Penal Code. Assistant Sessions Judge, who conducted the trial, absolved the accused persons for the offences punishable under Sections 504 and 506 of the Indian Penal Code, and convicted them for the offences punishable under Sections 323, 324, 325 and 307 of Indian Penal Code. Against the judgment rendered and sentence awarded by the Assistant Sessions Judge, an appeal was preferred before the Sessions Judge, who allowed the said appeal. Against the order allowing the appeal, present revision application has been filed by the informant. In the First Information Report, it was alleged that at 9:30 PM of 20th March, 1999, the informant went to the shop of Kripa Ram to purchase medicine, where the accused persons were selling liquor. No sooner the accused persons saw the informant, they started abusing and later started beating him with Lathis and Dandas. Later, one of the accused persons went and fetched a sword. In the meantime, hearing his cry, his wife and two of his sons came to the spot. He, his wife and his two sons were beaten up by Lathis, Dandas and were also assaulted by sword. All of them sustained injuries. They were medically checked up, whereupon it was reported that the injuries sustained by his son Narendra are serious and, accordingly, he was taken to the hospital situate at Haridwar. In order to prove the charge, prosecution led evidence through informant Hari Singh, two of his sons, namely, Jitendra and Narendra, and one Sri Radhey Lal. To prove the injuries, the Doctor, who checked the injured, deposed on behalf of the prosecution. From the injury reports tendered in evidence, it appeared that the Doctor, who prepared those injury reports, had examined the injured at or before 12 PM of 20th March, 1999. There was no evidence as to when Narendra was taken by the informant to Haridwar and when informant returned from Haridwar. The fact, however, remains that First Information Report was lodged at 2:30 PM of 21st March, 1999. In the circumstances, admittedly, there was some unexplained delay in lodging the First Information Report. The injuries, as were established in the injury report and by the evidence of the Doctor, who examined the injured people, did not suggest that any of the injured persons sustained any injury, which could be termed as "life threatening". One of the injured persons, namely, Narendra sustained a bone fracture on the little finger of his left hand. In addition to that, he had also sustained a grievous injury on his left hand. The learned Assistant Sessions Judge, despite there being no evidence, purported to hold that those injuries were sustained by Narendra, when he tried to prevent the sword blow to fall on his body and if the sword blow had fallen on his body, Narendra would have suffered a life threatening injury and, on that premise, held that a case under Section 307 of the Indian Penal Code has been made out. The said finding, in the absence of even an assertion by Narendra, while he was deposing in course of trial, to the effect that he, in fact, used his left hand to stop the blow of sword on his body, is based on surmises and conjectures. Therefore, there was no evidence of committing an offence punishable under Section 307 of Indian Penal Code by any of the accused persons. It is true that three people sustained injuries, but except those two injuries mentioned above, all the three people sustained minor injuries. Although, there is an injury report of the wife of the informant, but the wife of the informant did not depose, nor did she claim of her own that she had also suffered injuries. Three people, who suffered those injuries, deposed and orally held out that they received those injuries as those were inflicted by the persons accused. Their contention was supported by Radhey Lal. In course of evidence, it transpired that Radhey Lal is a near relative of the informant. In course of evidence, it transpired that Radhey Lal has a litigation with the father of one of the accused persons. It also transpired that there are disputes, inter se, the informant on the one hand and the accused persons on the other and, in relation thereto, there are litigations pending. In the circumstances, oral evidences of all these four witnesses, namely, of the informant and his two sons, who sustained injuries, and of Radhey Lal were required to be scrutinized minutely. The learned Sessions Judge has noted that when the accused persons were selling liquor, where was the question of them having Lathis and Dandas. The learned Sessions Judge has also noted that when an unarmed informant was being beaten up by Lathis and Dandas, where was the occasion of bringing a sword and that too from where and why, even after bringing the sword, the same was not used for giving an appropriate blow to any of the injured persons. The learned Sessions Judge has further noted that there was unexplained delay in filing the First Information Report. On the basis thereof, the learned Sessions Judge interfered in the matter and set aside the judgment and sentence pronounced by the Assistant Sessions Judge. In the present revision application, the basic contention is that it was obligatory on the part of the learned Sessions Judge to accept in toto the oral evidence tendered by the informant, his two sons and Radhey Lal. As has come in the judgment of the learned Assistant Sessions Judge, the evidence of the sons of the informant could not be accepted at all. In their evidence, they said that their father, the informant, was being beaten up and, hearing the cry of their father, they went out from their house. Therefore, they deposed in respect of a matter, which was happening before they had come out from their house. The said state of affairs clearly demonstrates that the said information percolated to them. If that percolation is acceptable, it has not been explained, why the remaining percolation should not be accepted. In other words, it has not been established, why they should not be treated to be tutored witnesses. It is true that each of those witnesses suffered injuries. Since none of those injuries was life threatening injury, there is no just reason to hold that they were not tutored to depose that such injuries were inflicted in the manner they deposed. At least, there is some room to think in that way. Why they were tutored to say things, which they had not admittedly seen. Radhey Lal did not sustain any injury. He came out from his house and saw that his near relative the informant is being beaten up. Why he did not try to save the informant. He did not even try to save the wife of the informant. Sons of the informant were beaten in his presence, but he did nothing. Radhey Lal has litigation with the father of one of the accused persons. Will a prudent person feel safe to accept the evidence of such a person? The informant and his family members sustained injuries. Those were checked up by the Doctor at or before 12O'Clock in the night. He lodged the First Information Report at 2:30 PM on the next date, why? He had taken his son Narendra to Haridwar, but when? He thereafter came back from Haridwar to his village, but at what time? The police station, as has come on evidence, is about 4 kilometres away from the place of occurrence, why there was such a delay? If one of the accused persons managed to get hold of a sword, why not a single injury was inflicted by the sword to any of the injured persons? From the injury reports, it does not appear that any of the injuries could be inflicted by sword. No attempt was made to establish before the Court that, in fact, accused persons were or any one of them was selling liquor. Could, in the circumstance as above, the Assistant Sessions Judge hold as he held? When the learned Sessions Judge held that what has been held by the Assistant Sessions Judge could not be held, in the facts and circumstances of the case, I have not been persuaded to take a different view. The revision application, accordingly, fails and the same is dismissed.;


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