Ronita Biswas | National Law University, Orissa | 11th January 2020
Bijendra Singh v. State of U.P. (Criminal Appeal No. 3079 of 1985)
Facts
A written report was submitted by Smt. Kartari (informant/PW-1) at Police Station Tappal, District Aligarh wherein she alleged that she had been living with her maternal uncle Ramchand after her marriage. Bijendra (Appellant No. 1) is the son of Ramchand. His wife and his family were also living in the same house for quite some time. Ramchand, after the death of Bijendra’s mother married Ram Devi. Ram Devi was issue-less. Ramchand had transferred the house and 11-12 bighas of land to Ram Devi. After Ramchand’s death, Ram Devi wanted to get her name mutated in the land and her share in land segregated.
This annoyed Bijendra who 9-10 days prior to the incident had threatened her not to do so. It was then asserted by the informant that, on the fateful night, around 12 o’ clock she and her son, Jaggo (PW-2) were awakened by shrieks of Ram Devi. They witnessed that Bijendra was inflicting blows at Ram Devi’s naval while her wife Khajani (co-accused, Appellant No. 2) was holding her legs and another unknown person was holding the deceased’s head. When they tried to raise an alarm, Bijendra threatened them. The informant and her son were terrified and remained in the house whole night. In the morning, they got the complaint transcribed by Bishambhar (PW-3) and sent the same to the Police Station.
On the basis of the said written report, the FIR was lodged at 8:15 am under s. 302 IPC against the accused Appellants. The investigation was entrusted to Mahavir Singh (PW-5). The inquest on the dead body of the deceased was carried out at 10 am and thereafter, it was sent for autopsy. The police submitted charge sheet only against the Appellants under s. 302/34 of IPC. The third unknown accused of the FIR could not be traced out by the police.
Opportunity was given to the accused Appellants, as per the provisions of s. 313 Cr PC to explain the adverse and incriminating evidence against them in the prosecution evidence. Both denied all the circumstances appearing against them in prosecution evidence and claimed false implication. Accused Bijendra stated that he is the only son of his father and the prosecution witness wanted to implicate him falsely to grab his property. The doctor who conducted autopsy was not examined before the trial court. The formal proof of the post mortem report was dispensed with, as its contents were admitted by the defense.
The Trial Court relied upon the evidence of eye witnesses’ viz. Smt. Kartari (PW-1) and her son Jaggo (PW-2) and held the Appellants guilty under s. 302 and s. 334 of IPC and sentenced them to undergo life imprisonment. Aggrieved by the said order, the Appellants approached the HC
Appellant’s contention
The counsel for the Appellants submitted that the doctor, who conducted the post-mortem examination of the deceased, was not examined in the Court. Such a procedure adopted by the Trial Court could not be approved. The contents of the post-mortem report could not be admitted under s. 294 of CrPC, unless the same was duly proved by the doctor, who had prepared the same.
The Appellants contended that from the depositions of the PW-1 before the Trial Court, the authenticity of the FIR becomes quite doubtful. According to the FIR, PW-1 is the author of the FIR but PW-1 stated in her cross-examination that the FIR was written by the Police Inspector at 10am.
The counsel for the Appellant contended that though PWs 1 and 2 are said to be the eye witnesses of the incident, but from the evidence on record there is considerable doubt from there depositions. The counsel contended that there was material contradiction between medical and oral evidence. In the FIR, the PW-1 had stated that the Appellant Bijendra had inflicted blows on the naval region of the deceased but in the post mortem report, there was no sign of injury on the naval region. In fact, the deceased had injuries on her face and head. Moreover, the witnesses have also deposed that another unknown accused had held the deceased by her head when the Appellant Bijendra was inflicting blows. From the post-mortem report, it was found that deceased had mostly suffered injuries on the right side of her face and head. This would be possible only when the deceased was sleeping turning to her left side and her right side was exposed, that is why all the injuries are on right side of her head and face. Thus from the nature of the injuries, it is improbable to believe the prosecution story.
Respondent’s contention
The Respondents contended that if the genuineness of any document filed by the party is not disputed by the opposite party, it can be treated as substantive evidence under s. 294(3) of CrPC. The Respondents cited the case of Akhtar v. State of Uttaranchal (2009 13 SCC 722) wherein the Supreme Court held that if the defense had admitted the genuineness of the post-mortem report before the Trial Court, the genuineness and veracity of the document stands proved and shall be treated as valid evidence under s. 294 CrPC. Similarly, in the given circumstances, since the defense has admitted the genuineness of the post-mortem report filed by the prosecution, the same had to be considered as substantive evidence.
The Respondents submitted that though PWs 1 and 2 are considered eye witnesses of the incident, but from the evidence on record a reasonable doubt is created that they have not seen the incident. From the contents of the FIR it is evident that the author of the FIR is PW-1 and PW-3, Bishambhar is the scribe. It was further found out that the contents of the FIR was written by the said scribe in the village of the incident itself and thereafter he went to the police station to lodge the same and it was registered at 8:30am. Whereas the PW-1 in her statement before the Trial Court deposed that said PW-3 had called the Police Inspector in the village of the incident and thereafter the Police Inspector had got the FIR written on which she had put her thumb impression. The witness further stated that all this was done at about 10 am. In the given circumstances, the very authenticity of the FIR becomes doubtful.
Lastly, the Respondents pleaded that Bijendra had no reason to murder her step-mother considering the fact that he would alone inherit the entire property of his mother. Moreover, the deceased had also brought up Bijendra after his mother died when he was only 7-8 years old. There is no documentary evidence to suggest the fact of transfer of the land in favour of the deceased by her husband Ramchand and the fact that the deceased had initiated any mutation proceedings for recording of her name on the said transferred properties, as alleged. On the other hand, there was sufficient motive for PW-1 to implicate the two Appellants in this case. PW-1 was aware that if the appellants are convicted she would be a beneficiary of the properties of the father of the appellant Bijendra.
Held
The Court held that the FIR of the case had been prepared with confabulation and manipulation of the police and the same was not lodged at the police station as contended. The Court found the eye witnesses unreliable on the manner of assault. There was also a contradiction in oral and medical evidence and hence, the conviction of the Appellants cannot be sustained. The Court found that the Appellants were entitled to get the benefit of doubt as the prosecution had failed to establish the guilt of the Appellant beyond all reasonable doubt.
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