Dismissed

Bhanwar Singh and Ors. v. State and Ors.

Uttarakhand HC8 May 2014CRLR/92/2005

Case brief

AI extract

What is this about?

In two appeal proceedings, the High Court rejected references by the revisionist and the State challenging an acquittal. The court held the trial judge correctly found it was a free fight and the prosecution failed to prove aggressorship or injuries beyond reasonable doubt, as established in cited precedents.

What did the court decide?

Criminal revision and Government Appeal dismissed.

Bhanwar Singh and Ors. Vs State and Ors. — Criminal Trial and Appeal | Uttarakhand HC (2014)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 92 of 2005

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Bhanwar Singh ...………… Revisionist versus State and others ...…………. Respondents

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Mr. Amish Tiwari, Advocate for the revisionist. Ms. Shruti Joshi and Mr. Rakesh Kunwar, Brief Holders for the respondent State.

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with

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Government Appeal No. 32 of 2010

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State of Uttaranchal ...………… Appellant

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versus

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Hari Singh and others ...…………. Respondents

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Ms. Shruti Joshi and Mr. Rakesh Kunwar, Brief Holders for the appellant State. Mr. Arvind Vashisth, Advocate for the accused-respondents.

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U.C. Dhyani, J.(Oral)

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PW1 Smt. Rajbala wrote a complaint (Ext. Ka-1) to Station House Officer, police station, Laksar on 05.04.1993, enumerating the facts contained therein that Khasra no. 141 was in the possession of her sons and on 03.04.1993, when she reached her field at 09:00 A.M., she saw that co-villagers Hari Singh, his wife and brother Sukhram were ploughing her field. PW1’s son Bhanwar Singh (PW2) also reached there. He refrained them from ploughing the field. Accused persons hurled abuses at him and said that they will not abide by the directions of Consolidation Officers. Hari Singh was armed with axe,

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his wife Ratni and son Sukhram were armed with sticks. They assaulted PW1’s son Bhanwar Singh. PW1 alongwith her son assaulted the accused persons in self defence, as a consequence of which, accused persons also sustained injuries. Had they not defended themselves, the accused persons would have killed them. When the alarm was raised, co-villagers, who were working in adjoining fields also came and saw the incident. PW1 and PW2 got their injuries examined at Govt. Hospital, Laksar. The members of the opposite side pleaded for amicable settlement, but did not abide by it and did not give anything in writing. Therefore, present complaint (Ext. Ka-1) was being submitted by PW1 today, i.e., on 05.04.1993.

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A chik FIR was lodged on the basis of said complaint of PW1. After investigation of the case, a charge-sheet was submitted against the accused persons, namely, Hari Singh, Sukhram and Ratni for the offences punishable under Sections 323, 324 of IPC. Present criminal case (arising out of case crime no. 80A of 1993) was the cross case (arising out of case crime no. 80 of 1993) of the same incident. Charge was framed against the accused persons for the offences punishable under Sec. 323 read with Sec. 34, Sec. 324, Sec. 504 and Sec. 506 of IPC, to which they pleaded not guilty and claimed trial.

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PW1 Rajbala, PW2 Bhanwar Singh, PW3 Chandra Bhan, PW4 Dr. Ravindra Thapliyal and PW5 S.I. Sardar Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons

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under Section 313 of Cr.P.C. in reply to which they said that they were falsely implicated in the case. PW4 Dr. Ravindra Thapliyal was again examined by the defence as DW1. DW2 Constable Charan Singh (formal witness) was also examined on behalf of the defence. After considering the evidence on record, accused persons were exonerated of the charges levelled against them. They were granted benefit of doubt and acquitted of said charges, vide judgment and order dated 16.02.2005, passed by learned Addl. Sessions Judge / II FTC Haridwar. Aggrieved against the acquittal of the accused persons criminal revision was preferred by Bhanwar Singh (revisionist herein) and Government Appeal was preferred by the State.

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PW1, in her examination-in-chief, supported prosecution story and also proved her complaint (Ext. Ka1). PW2 was her son, who was also present when the incident took place. Both PW1 and PW2 sustained injuries during the course of occurrence. Both of them supported prosecution story. PW3, in his examination-in-chief, also supported the version of PW1 and PW2. PW3 stated that he intervened in the scuffle. He further stated that had Bhanwar Singh and others did not assault the opposite side, the accused persons would have killed Bhanwar Singh’s mother. In this way, the right to private defence was taken by the present respondents from the very beginning [but did not persist with the same in due course].

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PW4 stated that he was posted as Medical Officer on 03.04.1993, and he examined the injuries of

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Smt. Rajbala and her son Bhanwar Singh. PW4 refuted a suggestion of learned defence counsel that Rajbala and Bhanwar Singh did not sustain any injuries. PW4 proved the injuries of both the injured.

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PW5 was the Investigating Officer of the case, who proved site plan (Ext. Ka-4) and charge-sheet (Ext. Ka-5). PW5 also proved chik FIR and copy of the same in the G.D. In his cross-examination, PW5 stated that PW1 and PW2 did not tell him that there was a free fight between the rival sides. DW1 also proved the injury reports of Smt. Ratni, Sukhram, Somkali and Hari Singh. DW1 was cross-examined at length. DW2 proved the FIR, which was lodged on behalf of the present respondents against the members of rival side and also proved the copy of extract of G.D. in which such entry was made.

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The FIR in the instant case was delayed one. Whereas the incident allegedly took place on 03.04.1993, at 09:00 A.M., the FIR was lodged by PW1 on 05.04.1993, at 03:30 P.M. Although an attempt was made by PW1 to show the reason for delay in lodging the FIR, but her statement cannot be said to be true, free from any embellishment, in the absence of any plausible reason to support such delay. An attempt was made by PW1 to show that the rival side intended to settle the dispute amicably and when nothing was given by the opposite side in writing, therefore, she lodged the report after two days, is unexplainable in the light of the facts thus brought on record.

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It is, no doubt, true that the members of rival side sustained injuries during the course of incident, but it is not established as to which of the side was aggressor and who inflicted injuries on the rival side in exercise of right to private defence? Members of neither side sustained superficial or minor injuries. Members of both the sides sustained substantial injuries. The members of the prosecution side also sustained injuries, the members of the defence side also sustained injuries. On the basis of the prosecution evidence, it cannot be said that the accused persons, in the instant case, were the aggressors. In other words, it cannot be ascertained as to which side was aggressor and which side inflicted injuries on the other side in exercise of their right to self defence. It, therefore, appears to be a case of free fight. Although PW1, initially, tried to bring out a case that she alongwith her son assaulted the accused persons in self defence, but this theory initially propounded by them obliterated and faded when PW1, PW2 and PW3 entered into the witness box and were subjected to cross-examination.

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In D.V. Shanmugham and another vs State of U.P., 1997 SCC (Cri) 691 , the Hon’ble Supreme Court observed as under:

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“Omission on the part of the prosecution to explain the injuries on the person of accused assumes much greater importance where the evidence consists of interested or inimical witnesses. But it is equally well settled that the prosecution is not obliged to explain the injuries sustained by the accused if the

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injuries are minor and are superficial and where the injuries are not sustained in course of the occurrence.”

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Enmity between the parties over a piece of land is under no dispute. To conclude, a cross case was filed on behalf of the present respondents against the members of rival side. One FIR was lodged in respect of case crime no. 80 of 1993 and cross FIR was lodged in respect of case crime no. 80A of 1993, both arising out of same incident. The FIR in the instant case was delayed and no plausible explanation was given by PW1 for such delay. Although, as stated earlier, PW1 initially came with a case that she alongwith her son also inflicted injuries on the other side, but the same obliterated in due course of their evidence before the trial court. It cannot be ascertained on the basis of the evidence on record as to which side was aggressor and which side inflicted injuries on the other side in exercise of their right to self defence. In the ultimate, it proved out to be a case of free fight. In other words, prosecution was unable to prove it’s case against the accused-respondents beyond a shadow of reasonable doubt.

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Learned trial court appreciated the prosecution evidence correctly. The court below came to a correct finding that the prosecution was unable to prove it’s case against the accused-respondents to the hilt. The accusedrespondents were rightly granted benefit of doubt and were rightly exonerated of the charges framed against them.

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At this stage, it will also be apt to reproduce the observations made by Hon’ble Supreme Court in Ashok Kumar vs State of Rajasthan, (1991) 1 SCC 166. Para 2 of the aforesaid judgment is reproduced herein-inbelow for ready reference:

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“2. Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived at; the provision does not inhibit ( sic ) any restriction or limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless.”

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This Court is unable to take a view different from what was taken by the court below. Criminal revision as well as the Government Appeal, therefore, fail and are dismissed.

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Dt. May 08, 2014. Negi

Bhanwar Singh and Ors. v. State and Ors.

Case brief

What is this about?

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Bhanwar Singh and Ors. v. State and Ors.

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