MUNNA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This revision has been preferred by the appli cants, Munna Singh and Dhirendra Kumar, against the Judgment and order dated 7-1 2-86, passed by Sri G. S. Chaubey, Special Judge, Varanasi, in Criminal Appeal No. 293 of 1984, confirming their convictions and sentences under Section 452, I. P. C. for one year's R. I. and under Section 323 read with Section 34, 1. P. C. for six months' R. I. awarded by Sri V. K. Srivastava, 2nd Judicial Magistrate. Varanasi, in Criminal Case No. 4420 of 84, Both the sentences were directed to run concurrently. 2 The applicants along with other co-accused, Tara Prasad Singh, who was also convicted and sentenced, for the same offence filed the above mentioned Criminal Appeal before the Learned Sessions Judge, Varanasi. The Learned Special Judge maintained the convictions and sentences of the applicants but acquitted the co-accused, Tara Prasad Singh, from the charges levelled against him. 3. The prosecution case, in brief, is that Sub-Inspector Ranjeet Singh was posted Police Station, Chandauli, on 17-4-83. On that date at 9. 30 p. m. Sri G. S. Pandey, the then Station Officer of Police Station Chandauh, along with Sub-Inspector Ranjeet Singh, had gone to check the duties of police constables deputed at Polytechnic College Chandauh. There they found the two constables Ram Autar and Mohammad Riyaz, present on their duties but the applicante constable, Munna Singh and Dhirendra Kumar, were found absent from their duties. Sri R. S. Pandey and Ranjeet Singh Sub-Inspector were informed by the constables Ram Autar and Mohammad Riyaz that the applicants Munna Singh and Dhirendra Kumar, had proceeded from the police station along with them for duties but on the way they stopped at Chandauli market informed them that they would come back after some time. It is said that four constables, including the applicants, were deputed for their duties from the police station at 6. 30 p. m. on that date and that their Rawangi was noted in the general diary. Sri R. S. Pandey, the Station Officer, along with Sub-Inspector, Ranjeet Singh, returned at the police station and got the absence of the applicants. Munna Singh and Dhirendra Kumar, noted in the general diary. Ext. K. 3 at 9. 50 p. m. On 17-4-83. Sub-Inspector Ranjeet Singh was present in the Government quarter of S. P. Tewan, a Sub- Inspector, in a separate room in the campus of the police station Chandauli, as Sri S. P. Tewati was living without his family he accommodated the Sub-Inspector Ranjeet Singh in one of the rooms of the same Government quarter. On the same day i. e. 17-4-83 at about 11. 30 p. m. constable Munna Singh is said to have enterrd in the room of Ranjeet Singh Sub-Inspector and start abusing him on the pretext that he got his absence noted in the general diary. Meanwhile the constable Dhirendra Kumar and Tara Singh also reached there. Then all three police constables beat the Sub-Inspector, Ranjeet Singh with kicks, fists, chappal and shoes. On the alarm raised by Ranjeet Singh sub-Inspector, Sri S. P. Tewari, who was also present in one of the rooms of same quarter came there and tried to interevene in the assault. Meanwhile Sri R. S. Pandey along with clerk constable Ram Raj rushed to the scene of occurrence. On being challenged by the clerk constable Ram Raj and sri R. S. Pandey, the accused persons made good their escape. As a result of the beating Sub-Inspector Ranjeet Singh sustained certain injuries on his person fact of this incident was incorporated in the general diary of the police station at 11. 40 p. m. It is also alleged that a written report of this incident was handed over by the injured Sub-Inspector Ranjeet Singh to the station officer, R. S. Pandey. The injured Ranjeet Singh got himself medically examined at Government Hospital, Chandauli, on the same night at 12. 40 a. m. It is also alleged that one report about this incident was also sent by the injured to the Senior Superintendent of Police, Varanasi, through proper channel on 18-4-83. The Senior Superintendent at Police, Varanasi on 20-4-83 directed the registra tion of the case and also its investigation. Shri S. N. Singh, the then Station House Officer, Police Station, Mughal Sarai, investigated the case and recorded the statements of the witnesses, inspected the site and prepared site-plan etc. He also required the sanction for prosecution of the accused persons which was also granted by the Senior Superintendent of Police, Varanasi on 16-9-83. Therefore, the charge sheet was submitted in the Court and the accused-applicants were tried. 4. The accused-applicants pleaded not guilty to the charges and claimed to be tried. The defence of Munna Singh, applicant was that Sub-Inspector, Ranjeet Singh assaulted him with a danda on 17-4-83 at about 9. 00 p. m. at the gate of the police station. Sub-Inspector Ranjeet Singh sustained some injuries on account of the fall from the cycle, got this case cooked up after three days of the incident in order to make his own defence. The defence of Dhirendra Kumar Singh and Tara Prasad is one and the same and they also said that Munna Singh had filed a Complaint Case No. 2543 of 84 against Ranjeet Singh and they had been cited as witness in that complaint case. On account of this enemity they had been reped in this case. 5. In order to prove the prosecution version P. W. I Ranjeet Singh, P. W. 2 S. P. Tewari, Sub-Inspector, P. W. 3 R. S. Panday and P. W. 6 constable Ram Raj have been examined as witnesses of the factum of assault. Dr. V. K. Srivastava has been examined in order to prove the injuries of the injured Ranjeet Singh. The fact that the accused were found absent from their duties was proved by constable Mohd. Riyaz P. W. 5, P. W. 7 S. N. Singh, Sub-Inspec tor was examined to prove the investigation and charge- sheet besides other witnesses who are in form of formal nature. 6. D. W. 1 Dr. B. K. Srivastava has also been examined to prove the injury report Ext. Kha 1 of accused Munna Singh. The trial Court after considering the evidence of the parties convicted and sentenced ail the three accused as stated above. On appeal the lower Appellate Court relied on the evidence of Ranjeer Singh, P. W. 1 and S. P. Tewari, Sub-Inspector P. W. 2. So far as the evidence of Sri R. S. Pandey, Station Officer, P. W. 3and clerk constable Ram Raj, P. W. 6 is concerned the lower Appellate Court has made an observation that "even if the evidence of P. W. 3 and P. W. 6 about the factum of margin is not accepted, even then the testimony of P. W. I and P. W. 2 sufficiently proves that the incident did take place". Thus Court below has relied upon the testimony of P. W. 1 and P. W. 2 only, discarding the evidence of P. W. 3 and P. W. 6. 7. The lower Appellate Court took into consideration the evidence about the motive in the case of Tara Prasad Singh as distinguished as it is said that he had no motive to join hands in the present crimeand also his name was not mentioned in the general diary. Hence he was given the benefit of doubt. 8. I heard the counsel for the applicants and the State Counsel. Learned counsel for the applicants fortified his arguments that the convictions and sentences of Dhirendra Kumar is also not possible as the case of Dhirendra Kumar and Tara Prasad Singh is one and the same, on the basis of the Supreme Court decision reported in AIR 1957 SC page 614, Vadivela Thavar v. Stale of Madras, wherein it has been held that the oral testimony of the witness can be classified into three categories viz. (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the first category of proof the Court could have no difficulty in coming to its conclusion in either way, it may convict or may acquit on the testimony of the witnesses if it is found above reproach or suspicion of interestedness, in competence or subordination. In the second category the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the Court has to look for corroboration in material particulars by reliable evidence direct or circumstantial. In the present case the evidence of witnesses regarding participation of the accused Tara Prasad Singh and the accused Dhirendra Kumar Singh is one and the same. Both of them in the company of Munna Singh assaulted Sub-Inspector, Ranjeet Singh. There is no other independent and reliable evidence for corroboration of the same set of evidence for recording conviction and sentence of Dhirendra Kumar Singh applicant. The State has not filed any appeal against the order of acquittal of Tara Prasad Singh. Thus the order of acquittal of Tara Prasad Singh co-accused has become final. In my opinion the arguments advanced by the learned Counsel for the applicant has force and the distinction drawn by the lower Appellate Court on the basis of motive for making the case of co-accused Tara Prasad Singh distinguishable from the case of applicant Dhirendra Kumar Singh is not sufficient and there are no sufficient reasons for differentiating the case of Dhirendra Kumar Singh, applicant from that of other accused has been acquitted. I accept the contention of the Learned Counsel and I do not find the conviction and sentence of the applicant Dhirendra Kumar Singh justified to be maintainable in the eye of law. In my opinion he is entitled to his acquittal from the charge levelled against him. 9. So far as the participation of the applicant, Munna Singh is concern ed it has been argued that in case the conviction and sentence on the one set of accused is set aside, the conviction and sentence of the other set of accused cannot be sustained. In this respect the case of Munna Singh is being dis cussed herewith that he sustained only two injuries and he has filed the injury report and Dr. V. K. Srivastava, D. W. 1 has been examined in order to prove the injuries sustained by the accused Munna Singh. Dr. V. K. Srivastava found two abrasions on his right hand and two complaints of pain. In the opinion of Doctor these injuries could have been caused at about 11. 30 p. m. on 17-4-83. He also opined that such injuries could also be self-inflicted and in the case of marpit is the injured tries to ward off the attack of assailant such injuries could also be received by the assailant during the course of marpit. The case of Munna Singh is that Sub-Inspector, Ranjeet Singh has beaten him with a danda at about 9. 00 p. m. on 17-4-83. At the gate of police station. He has also filed a Criminal Complaint Case No. 2543 of 34 in the Court of Chief Judicial Magistrate Varanasi on 16-5-84and it was said the Sub-Inspector Ranjeet Singh in order to make his defence concocted a false case against the accused persons and actually Sub-Inspector Ranjeet Singh received the injuries due to a fall from the cycle. I have fully considered the case of Munna Singh, applicant who is not entitled for the benefit of doubt. I am not satisfied with the defence case that Sub- Inspector Ranjeet Singh sustained inju ries on account of fall from cycle. From the defence case it is evident that some incident of marpit did take place at or near the place of occurrence and at or near the same time. According to the prosecution the incident took place at 11. 30 p. m. in the campus of Police Station Chandauli while according to the defence case the incident took place at 9 p. m. at the gate of the same Police Station. Ranjeet Singh sustained j 2 injuries including five contusions, one lacerated wound, bleeding from nose, dislocation and abrasions as would appear from injury report Ext. Ka-6. These injuries could not have been the result of a fall from the cycle. These injuries were examined in the same night at 12. 40 a. m seen after the incident, These injuries, according to the doctor, the examined the same, were found fresh and could have been caused at the time of occurrence alleged by the prosecution and possibly could have been caused with shoes, kicks and fists. Two abrasions of Munna Singh support the prosecution version that Munna Singh participated in the incident and assaulted Sub-Inspector Ranjeet Singh with shoes. It is natural that in the marpit Munna Singh also sustained two small abrasions on his hand. I am fully satisfied that it is Munna Singh who assaulted Ranjeet Singh with shoes, kicks and fists and the prosecution version regarding the participation of Munna Singh in the incident finds corroboration from the defence injuries and defence version. I also considered the matter on the quantum of sentence awarded to Munna Singh. He was found absent on duty, when the superior officer got it reported on the General Diary, he is order to take revenge assaulted his superior officers with shoes kicksand fists who had performed his legal duties. Applicant, Munna Singh does not deserve sympathy even in reduction of his sentence and same does not call for any interference by this Court. 10. The conviction and sentence under Section 452, I. P. C. awarded to Munna Singh, applicant by the trial Court and affirmed by the lower Appellate Court is maintained and his conviction under Sections 323/34, I. P. C. awarded by the trial Court and affirmed by the Lower Appellate Court is altered to conviction under Section 323, I. P. C. and his sentence of 6 months' R. I. is maintained. The revision of Munna Singh is dismissed. The convic tion and sentence awarded to Dhirendra Kumar Singh by the trial Court and maintained by Lower Appellate Court is hereby set aside. The revision of Dhirendra Kumar Singh is allowed. 11. The revision of Dhirendia Kmnar Singh is allowed. His convic tion and sentence awarded by trial Court and affirmed by the Lower Appellate Court is set aside. Dhirendra Kumar Singh is acquitted of the charges levelled against him. He need not surrender. The revision of Munna Singh is dismissed. His conviction and sentence under Section 452, I. P. C. awarded by the trial Court and confirmed by the Lower Appellate Court is maintained. His conviction under Sections 323/34, I. P. C. , is altered under Section 323, I. P. C. only and sentence of 6 months' rigorous imprisonment as awarded by the Courts below is maintained. Applicant Munna Singh shall be taken into custody forthwith to serve out the sentences awarded to him as stated above. Appeal dismissed. .