Dismissed

Divakar Singh and Another v. State of U.P.

Allahabad HC25 Oct 2018CRLA/326/1996

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court affirmed the trial court's decision convicting the surviving appellant of the offence under Section 352 IPC. The court held that the prosecution witnesses provided coherent testimony regarding the assault arising from a property dispute, finding no grounds to interfere with the conviction or sentence.

What did the court decide?

The judgment and order of conviction and sentence dated 20.2.1996 passed by the trial court is affirmed and upheld. The appeal is dismissed.

Divakar Singh and Another Vs State of U.P. — Execution and Attachment | Allahabad HC (2018)

A.F.R.

Court No. - 42

Case :- CRIMINAL APPEAL No. - 326 of 1996
Appellant :- Divakar Singh & Another
Respondent :- State Of U.P.
Counsel for Appellant :- A.K.Singh
Counsel for Respondent :- Govt. Advocate

¶5

Hon'ble Arvind Kumar Mishra-I,J.

¶6

The instant criminal appeal is directed
against the judgment and order of conviction
dated 20.2.1996, whereby, the surviving appellant
no.2 - Satya Narain Singh having been convicted
for offence under Section - 352 I.P.C. has been
sentenced with fine Rs. 500/- and in default, he
is to suffer additional imprisonment for one
month concerning Case Crime No. 213 of 1987,
Police Station - Dhanghata, District - Basti.

¶7

Factual matrix of this case as reflected from
record appears to be that Smt. Barafa Devi lodged
an FIR at Police Station - Dhanghata on 7.8.1987
alleging therein that her husband - Binare alias
Vinda Singh, his two brothers Divakar Singh and
Sitaram Singh and uncle Satya Narain Singh were
involved in some dispute regarding partition of
land and house. On that date, she, her husband
and her son had gone to their field to collect
fodder for the cattle at about 4:30 p.m. In the
meanwhile, Divakar Singh armed with a 'kudal' and
Satya Narain Singh possessing with a 'danda'
(stick) came on the field and began to altercate
on point of partition, whereafter Satya Narain
jerked down her husband on the ground from behind
and held his both hands, while Divakar gave 3-4

¶8

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blows with the reverse side of the 'kudal' on his
head and face. She and her son Madan Chandra
sprawled over him to save his life. In the
meantime, other persons working in and around the
field also arrived on the spot, after hearing the
hue and cry being raised. Due to the injuries,
the informant's husband became unconscious. He
was taken to P.H.C. - Hainsar Bazar for treatment
before lodging of the F.I.R.

¶10

F.I.R. of the incidence was lodged at Case
Crime No. 213 of 1987 at Police Station -
Dhanghata and the investigating officer started
the investigation and recorded statement of the
witnesses, prepared the site plan and after
completing the formalities, filed the charge-
sheet under Section - 308 I.P.C. against both the
accused.

¶11

The case was committed to the Court of
Session. From there, it was made over for trial
to the court of aforesaid Vth Additional Session
Judge, Basti, where the accused was charged under
Section-308 I.P.C. The accused pleaded not guilty
and claimed to be tried.

¶12

The prosecution in order to prove its case
examined as many as five witnesses viz. Smt.
Barafa Devi as P.W.-1, whereas Vrindavan as P.W.-
2. S.I. Samsuddin Ahmad As P.W.-3, Dr. R.C.
Parasar as P.W.-4 and S.I. Umakant Pandey as
P.W.-5. Certain papers were proved before the
trial court. The FIR is Ext. Ka-1, Check FIR is
Ext. Ka-2, copy of G.D. is Ext. Ka-3, Letter to
C.M.O., Basti is Ext. Ka-4, Injury report is Ext-
Ka-4(a), Site plan is Ext. Ka-5, Blood-stained

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and simple earth is Ext. Ka-6, Charge-sheet is
Ext. Ka-7 and bed-head-ticket of Binare is Ext.
Ka-8.

¶15

Consequent thereupon, evidence for the
prosecution was closed and statement of the
accused was recorded under Section 313 Cr.P.C.,
wherein, accused - Satya Narain admitted
relationship with the injured and denied his
involvement in the case. He claimed that he had
gone to Gorakhpur in connection with operation of
his wife. He is seventy five years old and he is
unable to move about.

¶16

In defense accused - Satya Narain Singh
produced Dr. Vajahat Kareem as D.W.-1. The Doctor
has testified to the ambit that Smt. Bhanmati
underwent an operation in his clinic and was
admitted there on 15.7.1987 and was discharged on
24.7.1987. He further testified that during her
admission, her husband - Satya Narain Singh was
present and he attended his wife. Smt. Bhanmati
was again brought to his clinic on 27.7.1987 and
finally Satya Narain took Smt. Bhanmati for
check-up on 19.9.1987. However, the doctor has
admitted in his cross-examination that he cannot
testify whether Smt. Bhanmati and her husband -
Satya Narain Singh visited the clinic between
27.7.1987 and 13.8.1987 The doctor witness has
proved the medical certificate as Ext. Kha-1
issued by his wife Dr. Surhita Kareem.

¶17

Except as above, no other testimony was
adduced by the defense, whereafter evidence for
the defense was closed.

¶18

After vetting the merit of the case and

¶19

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appraisal of facts and circumstances, the trial
judge recorded aforesaid finding of conviction
and imposed fine of Rs.500/- towards sentence for
committing the offence under Section 352 I.P.C.,
which paved way for this appeal.

¶21

Heard learned counsel for the appellants as
well as learned A.G.A. and perused the material
brought on record.

¶22

It has been claimed that no offence,
whatsoever, has been committed by the appellant.
The fact is that on account of acrimonious
relationship, the accused has been falsely
implicated in this case. All the prosecution
witnesses are interested persons. They are biased
and tutored witness. Their testimony is
contradictory. The incident in question is
denied. The appellant was not present on the
spot. When the incident took place, he was
attending his wife, who was admitted in the
hospital. The trial court arbitrarily convicted
the appellant and passed sentence therefor, which
is wholly unjustified.

¶23

Retorting to the submissions made by the
learned counsel for the appellant, learned A.G.A.
has supported the judgment and has claimed that
the appellant has been rightly convicted and
sentenced by the trial court.

¶24

Also considered the rival submissions. The
moot point that arises for consideration of this
appeal pertains to the issue whether the
prosecution has been able to successfully prove
the charge beyond reasonable doubt?

¶25

Upon careful perusal of the testimony of the

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¶27

prosecution witnesses' of fact and particularly the testimony of Barafa Devi P.W.-1, it transpires that her husband Binare alias Vinda Singh and another co-accused - Divakar Singh (since expired during pendency of appeal) were real brothers and Satya Narain Singh is their uncle. About 5-6 years back, partition of the property had taken place and Binare alias Vinda Singh, husband of the Barafa Devi was living separately, whereas Satya Narain Singh and Divakar Singh were living jointly but the dispute regarding partition remained the bone of contention between the accused and informant side. Therefore, 'panchayat' was called for amicable settlement. The ' panchayat ' took place. At around 4:00 p.m., she, her husband and her son had gone to the field to collect fodder. They were cutting maize and ' chari ' when Satya Narain along with another co-accused appeared on the scene possessing ' danda ' and indulged in altercation with her husband. Satya Narain dragged her husband and jerked him on the ground. In the meantime, Divakar Singh assaulted her husband with the reverse side of the ' kudal' on her husband's face. Alarm was raised by the informant and her son Madan Chandra, whereupon witnesses Lalasa, Satai and Ramdeo who were working in the nearby field, rushed to the spot while the accused took to their heels. Since her husband sustained serious injuries, he was taken to P.H.C. Hainsar Bazar. The informant got the written report scribed by one Vimal Chandra Baniya of Hainsar Bazar and got the FIR lodged at

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P.S. Dhanghata. This witness has proved the contents and her thumb impression on the written report as Ext. Ka-1. She has also proved the fact of her husband being taken to District Hospital, Basti where he was admitted. In her crossexamination, she has admitted fact that the agricultural field was partitioned fifteen years ago, but the accused did not give her share in the land of Bhagawati. She has also claimed that she received only one third share in agricultural land and she did not insist on one half share in the property. She has specifically testified to the ambit that Satya Narain pulled the leg of her husband, which caused fall of her husband on the ground. Divakar was possessing ' kudal '. Blood oozed from the wound. Clothes of the informant as well as her son were stained with blood. She has been suggested by the defense that she along with her son and husband were stealing corn from the field of one Laxmi, whereafter persons from the side of Laxmi had beaten her husband, this suggestion has been denied. She has also denied suggestion of false implication of the accused.

¶30

Testimony of injured P.W.-2 – Binare @ Vrinda, husband of informant (P.W.-1) is quite relevant. He has specifically testified to the ambit that after the accused arrived on the spot, he began to talk to them on the issue of partition of the property. Satya Narain dragged his leg, due to which he fell on the ground. When Divakar caused three-four blows with the reverse side of the ' kudal' on his left side. His wife sprawled on him and raised alarm whereupon

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witnesses Lalasa, Satai and Ramdeo arrived on the spot, then only he could be saved. The accused escaped from the scene. He has stated that he was seriously injured and received grievous injuries. His tooth was broken and bone was fractured. He was taken on cot to Hainsar Bazar from where he has been taken to the Dhanghata and then to District Hospital, Basti where he remained admitted for about 10-12 days. His crossexamination disclosed fact that the share which was allotted to him in partition was never handed over by the accused. He has denied the suggestion that he was not given blow by the ' kudal'. He has also denied suggestion of pilfering maize millet crop of Laxmi, whereafter he was beaten by some witnesses.

¶33

S.I. Samsuddin Ahmad (P.W.-3) has proved
lodging of the FIR and has proved the Check FIR
Ext. Ka-2. He has also proved copy of G.D.
concerned Ext. Ka-3 and the Chitthi Majrubi Ext.
Ka-4.

¶34

Dr. R.C. Parasar P.W.-4 has medically
examined the injured Vrinda on 7.8.1987. He found
the following injuries on his person.

¶35

1. Lacerated wound 3 cm. x 0.5 cm. x bone deep on the fore-head 3 cms. above the bridge of the nose; x-ray was advised.

¶36

2. Lacerated wound 2 cms. x 0. cms x muscle deep on the left side face, 3 cm. below the left eye.

¶37

3. Lacerated wound 3.5 cm. x 0.5 cm. x muscledeep on the left side face.

¶38

4. Contused swelling 7 cm. x 5 cm. on the right side face and upper and lower eye lid.

¶39

5. Lacerated wound 0.5 cm. x 0.3 cm. x skin deep on the nose (middle).

¶40

6. Lacerated wound on the gums and upper left canine tooth and lower left canine tooth. The injury was referred to Dental Surgeon for examination and opinion.

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These injuries were kept under observation
and were opined to have been caused by some blunt
object and were fresh in duration.

¶43

Dr. R.C. Parasar has proved the injury report
as Ext Ka-4(a). According to the doctor, the
patient remained in hospital from 7.8.1987 to
22.8.1987. The Investigating Officer – S.S.I.
Umakant Pandey (P.W.-5) has proved the site plan
and the investigation conducted by him and has
also proved the memo of simple and blood stained
earth taken by him from the spot. He has also
testified to the ambit that he was transferred
duringinvestigation,whereafterS.I.
Sachchidanand took over the investigation and
filed the charge-sheet against the accused. Thus,
the statement of the injured when read conjointly
with the statement of P.W.-1 - Barafa Devi
satisfactorily proves the offence against the
surviving accused - Satya Narain Singh.

¶44

Soon after the incident, which took place at
around 04.30 P.M., the lodging of the FIR was
promptly done at 6:25 p.m., the same day. The
medical examination was conducted the very same
day of the incident at 9:00 p.m. and according to
the doctor witness, the injuries were fresh and
possibly caused around 4:30 p.m. the very same
day.

¶45

Defense has suggested and contended that
witnesses, Satai, Lalasa and Ramdeo actually
assaulted the injured. The contention raised to
that magnitude is hardly acceptable in view of
fact that there was no cogent reason for allowing

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the real culprit to go scot-free and involve
another persons falsely in the incident. Nothing
adverse has emerged in the testimony of the
prosecution witnesses of fact, particularly P.W.-
1 and P.W.-2. Their testimony on the whole
appears to be coherent and inspires confidence.
Witnesses P.W.-1 and P.W.-2 are creditworthy.

¶48

While vetting the merit of the incident, the
trial judge has rightly convicted the appellant
for committing offence under Section 352 I.P.C.
and has rightly awarded punishment in the shape
of fine only for Rs.500/- and in case of default
in payment of fine to suffer additional
imprisonment for one month. No good ground exist
for interference.

¶49

The judgment and order of conviction and
sentence dated 20.2.1996 passed by the trial
court is hereby affirmed and upheld.

¶50

Consequently, this appeal is dismissed.

¶51

The appellant may deposit the amount of fine
Rs.500/- within a period of two month, failing
which he would have to suffer additional
imprisonment for one month period.

¶52

Let a copy of this order be certified to the
trial court concerned for information and
necessary follow up action.

¶53

Order Date :- 25.10.2018
S Rawat

Divakar Singh and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

Divakar Singh and Another v. State of U.P.

Case brief

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What did the court decide?

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