# Bijendra Singh & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 1407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-17
- **Case number:** Criminal Appeal No. 3079 of 1985
- **Bench:** Govind Mathur, C.J. Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bijendra-singh-anr-in-jail-v-state-of-u-p-45208
- **Pages:** 6

## Headnote

A. Code of Criminal Procedure, 1973 -
Section 374(2) & Indian Penal Code,
1860 - Sections 302/34 - contradiction in
oral and medical evidence as no injury
was found on the naval region of the
deceased -It appears to be improbable
that a person may inflict gandasa blows
on head and face while the head is held
by another person- Therefore, this part of
the
prosecution
story
is
highly
improbable and doubtful- the conviction
of the appellants cannot be sustained.
(Para 17)

B. Motive -The motive for committing the
crime is assigned to the appellant. appellant's
father had transferred his 11-12 bighas of land
to the deceased. The deceased was trying to
get her name mutated on the said land, which
was objected by the appellant. from the
evidence on record that the deceased Ram
Devi was issue-less, therefore, after her death
appellant Bijendra alone would inherit entire
properties of his father, and that being so,
there was no reason for the appellant Bijendra
to have committed murder of his step mother.
(Para 18)

Criminal Appeal allowed. (E-6)

List of cases cited: -

## Text

1408 INDIAN LAW REPORTS ALLAHABAD SERIES
guilty under Section 302 read with Section
34 IPC and deserve to be acquitted, while
accused Rajvir deserves to be held guilty
under Section 302 IPC simplicitor and also
hold that no prejudice would be caused by
holding him guilty under Section 302 IPC
simplicitor, though no charge under Section
302 IPC simplicitor has been framed against
him by the trial court because he has been
given full opportunity to defend himself. The
appeal of the accused- Rajvir is dismissed,
he shall be taken into custody, his bail bonds
shall stand discharged.

31. Accordingly, the present appeal
is partly allowed.

32. The accused-appellants Adiram
and Udaivir are already on bail, hence
they need not be taken into custody. The
trial court shall obtain bail bonds from
them under Section 437 (1) Cr.P.C.

33. Let a copy of this judgment be
transmitted to the trial court forthwith for
necessary information and compliance.
----------
(2020)1ILR 1407

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 3079 of 1985

Bijendra Singh & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R. S. Yadav, Sri Ajay Kumar Srivastava,
Sri Jitendra Pal Singh Chauhan
Counsel for the Opposite Party:
A.G.A.

A. Code of Criminal Procedure, 1973 -
Section 374(2) & Indian Penal Code,
1860 - Sections 302/34 - contradiction in
oral and medical evidence as no injury
was found on the naval region of the
deceased -It appears to be improbable
that a person may inflict gandasa blows
on head and face while the head is held
by another person- Therefore, this part of
the
prosecution
story
is
highly
improbable and doubtful- the conviction
of the appellants cannot be sustained.
(Para 17)

B. Motive -The motive for committing the
crime is assigned to the appellant. appellant's
father had transferred his 11-12 bighas of land
to the deceased. The deceased was trying to
get her name mutated on the said land, which
was objected by the appellant. from the
evidence on record that the deceased Ram
Devi was issue-less, therefore, after her death
appellant Bijendra alone would inherit entire
properties of his father, and that being so,
there was no reason for the appellant Bijendra
to have committed murder of his step mother.
(Para 18)

Criminal Appeal allowed. (E-6)

List of cases cited: -

1. Akhtar Vs St. of Uttaranchal (2009) 13 SCC
722

2. Sadique and ors.Vs St. of UP, reported in
1981 Cr.L.J. 379,

(Delivered by Hon'ble Vivek Varma, J.)

1. By the impugned judgment dated
08.11.1985,
the
learned
2nd
Addl.
Sessions Judge, Aligarh convicted accused
appellants Bijendra and Smt Khazani for
the offence punishable under section
302/34 Indian Penal Code and sentenced
them to under go life imprisonment.
1 All. Bijendra Singh & Anr. Vs. State of U.P.
1409

2. The prosecution case, in brief, is
that on 25/26.12.1984, a written report
(Ex-ka-1) was submitted by Smt Kartari
(Informant/P.W.-1)
at
Police
Station
Tappal, District Aligarh wherein she
alleged that she was living with her
maternal uncle Ramchand's house in
village Palar after her marriage. Bijendra
(appellant no.1) is son of Ram Chand. His
wife and his family were also living in the
same house for quite some time. Ram
Chand, after the death of Bijendra's mother
married (djkc) Ram Devi. Ram Chand had
transferred the house and 11-12 bighas of
land to Ram Devi. After his death,
Ramdevi wanted to get her name mutated
in the land and her share in land
segregated.
This
annoyed
accused
Brijendra, who 9-10 days prior to the
incident had told her not to do so. Ram
Devi was issue-less. She did not heed
Brijendra's advice, causing Brijendra to
threaten her. It was then asserted by the
informant that, on the fateful night at about
12 O'clock when she and her son Jaggo
were sleeping in her maternal uncle's
house. They were awakened by shrieks of
(mami) Rama devi and saw that Bijendra
was inficting gandasa blows at Mami's
naval (ukj) and an unknown person was
holding mami's head and Bijendra's wife
Khajani (co accused-appellant no. 2) was
holding her legs. When they raised an
alarm Bijendra threatened them. After
killing Ramdevi, he and the unknown
person went outside. It was also asserted
that due to fear, informant and her son
remained in the house whole night. In the
morning after getting the complaint
transcribed by Bishambhar the same was
sent to the Police Station.

3. On the basis of the said written
report, the First Information Report (ExKa-5) was lodged on 26.12.1984 at 8.15
a.m, vide Case Crime No. 152, under
Section 302 IPC against the accused
appellants at P.S. Tappal, District Aligarh.
The
investigation
was
entrusted
to
Mahavir Singh (P.W.-5). The inquest (Ex-
Ka-4) on the dead body of the deceased
was conducted on 26.12.1984 at 10 a.m
and thereafter it was sent for autopsy. The
postmortem report is available on record
as Ex-Ka-16. As per Dr J. L. Agarwal,
following
ante-mortem
injuries
were
found:-

1. Incised wound 12 cm X 2.5 cm
X bone deep into right side scalp 10 cm on
the ear.

2. Incised wound 3 cm X 3 cm X
bone deep into right side joint 12 cm
above right eye brow longitude.

3. Incised wound 2 cm X 12 cm
X bone deep in right side face and middle
of neck with muscular rim and body,
trachea and jaw.

4. Abrasion 3 cm X 1 cm in the
left shoulder.

5. Lacerated would 1 cm X 1⁄2 cm
on the lob of left ear.

4. The police submitted charge-sheet
(Ex-Ka-13) only against the appellants
Bijendra and Smt Khazani under Sections
302/34 IPC. The third unknown accused of
the F.I.R. could not be traced out by the
police.

5. During the course of trial, the
prosecution produced five witnesses in
support of its case. PW-1 Smt Kartari, is
the informant and eye witness. Another
eye witness is PW-2 Jaggo son of PW-1.
The scribe of the F.I.R. Bishamber is PW3. Budh Singh, a witness of extra judicial
confession is PW-4. The investigating
officer of the case is Mahaveer Singh, who
is PW-5.
1410 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Opportunity was accorded to the
accused appellants as per provisions of
section 313 Cr.P.C, to explain the adverse
and incriminating circumstances 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.

7. 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 defence.

8. The trial Court relied upon the
evidence of eye witnesses viz. P.W.-1 Smt
Kartari and P.W.-2 Jaggo and held the
appellants guilty and convicted and sentenced
them as mentioned. Hence this appeal.

9. Heard learned counsel for the
appellants, Mr S. A. Murtaza, learned
AGA and perused the material on record.

10. Learned counsel for the appellants at
the first instance submitted that the doctor, who
conducted the postmortem examination of the
deceased Smt. Ram Devi, was not examined in
the court, though the same has been marked as
exhibit by the court. Such a procedure adopted
by the trial court could not be approved, as the
contents of the postmortem report could not be
admitted under Section 294 of the Code of
Criminal Procedure, unless, the same was duly
proved by the doctor, who had prepared the
same.

11. The submission of the learned
counsel for the appellants is legally not
sustainable, in view of the settled position
of law that if the genuineness of any document
filed by a party is not disputed by the opposite
party, it can be treated as substantive evidence
under sub-section (3) of Section 294 Cr.P.C.
The Hon'ble Supreme Court in case of Akhtar
Vs State of Uttaranchal (2009) 13 SCC 722,
has observed that if the defence has admitted
the genuineness of the postmortem report
before the trial court, the genuineness and
veracity of the document stands proved and
shall be treated as valid evidence under Section
294 Cr.P.C. The relevant portion is quoted
below:-

"21. It has been argued that nonexamination of the concerned medical
officers is fatal for the prosecution.
However, there is no denial of the fact that
the defence admitted the genuineness of
the injury reports and the post mortem
examination reports before the trial court.
So the genuineness and authenticity of the
documents stands proved and shall be
treated as valid evidence under Section
294 of the CrPC. It is settled position of
law that if the genuineness of any
document filed by a party is not disputed
by the opposite party it can be read as
substantive evidence under sub-Section (3)
of Section 294 CrPC. Accordingly, the
post-mortem report, if its genuineness is
not disputed by the opposite party, the said
post-mortem report can be read as
substantive
evidence
to
prove
the
correctness of its contents without the
doctor concerned being examined."

12. We may also refer to a Full
Bench decision of this Court, reported in
1981 Cr.L.J. 379, Sadique and other Vs
State of UP, wherein it was held -

"(Para-9)-" It is open to the
prosecution or the accused to dispute the
genuineness of a document filed by the
1 All. Bijendra Singh & Anr. Vs. State of U.P.
1411
opposite party under Sub-section (1) of
Section 294, Cr. P.C. In such a case the
signatory of the document must be
examined by the party filing the document
to prove his signature and also the
correctness of its contents and the
evidence of the signatory will be the substantive
evidence and the document may be used to
corroborate or discredit his testimony. But where
the genuineness of a document filed by the
prosecution or the accused under Sub-section (1)
of Section 294, Cr. P.C. is not disputed by the
opposite party, Sub-section (3) of Section 294,
Cr, P.C. is applicable and such a document may
be read as substantive evidence. Section 294, Cr.
P.C. is a new section as it had no equivalent in
the Code of Criminal Procedure 1898. It is based
on the rule of evidence that facts admitted need
not be proved contained in Section 58, Evidence
Act. The object of enacting this section appears to
be to avoid the time of the Court being wasted by
examining the signatory of the document filed by
the prosecution or the accused under Sub-section
(1) of Section 294, Cr. P.C. to prove his signature
and the correctness of its contents if its
genuineness is not disputed by the opposite party.
If the signature and the correctness of the
contents of a document filed by the prosecution
or the accused under Sub-section (1) of Section
294, Cr. P.C. whose genuineness is not disputed
by the opposite party are still required to be
proved by examining the signatory of the
document, the very object of enacting Section
294, Cr. P.C. will be defeated. We are, therefore,
of the opinion that all documents filed by the
prosecution or the accused under Sub-section (1)
of Section 294, Cr. P.C. whose genuineness is not
disputed by the opposite party may be read as
substantive evidence under Sub-section (3) of
Section 294, Cr. P.C."

13. In view of the aforesaid legal
position
the
genuineness
of
the
postmortem
report,
filed
by
the
prosecution, has since been admitted by
the defense the same can be read as
substantive evidence.

14. The learned counsel for the
appellants next contended that from the
deposition of the PW-1 before the trial court,
the authenticity of the F.I.R. becomes quite
doubtful because according to the F.I.R., PW-1
is the author of the F.I.R. but PW-1 stated in
her cross-examination that the F.I.R. was got
written by the police Inspector at about 10 a.m.
when she had come to the place of incident.

15. We have examined the version of
the F.I.R. and the deposition of the
informant PW-1. From the contents F.I.R.
it is evident that the author of the F.I.R. is
PW-1, and PW-3 Bishambhar is the scribe.
We further find from the contents of the
F.I.R., that it was written by the said scribe
in the village of incident itself and
thereafter the said scribe went to the police
station to lodge the same, which was
registered at the police station at 8.30 a.m.
Whereas, the PW-1, in her statement
before the trial court deposed that said
PW-3 Bishambhar (scribe of the F.I.R.)
had called the Police Inspector in the
village of incident and thereafter the Police
Inspector had got the F.I.R. written on
which she had put her thumb impression.
This witness further stated that all this was
done at about 10 a.m. This part of the
statement of PW-1 is extracted below:-

"eq>s xako dh vkSjrksa us pqik;k Fkk
fQj njksxk th vk x;s Fks fo'kEcj cqyok;k Fkk
fQj fy[kk i<+h djh fQj vaxwBk fjiksZV ij yx;k
Fkk lqcg ds 10 cts Fks njksxk th us eq>ls vaxwBk
yxkus dks dgk FkkA njksxk th us dgk Fkk fd rw
i<+h rks gS ugha vaxwBk yxk ns njksxk th us
i<+dj lqukbZ FkhA "

16. It is thus apparent from the
aforequoted substantive evidence of PW-1
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
that the F.I.R. was got written by the
Police Inspector. This being so, the F.I.R.
version that the F.I.R. was dictated by the
PW-1 and PW-3 Bishambhar scribed the
same
stands
discredited.
From
the
aforequoted evidence it is also apparent
that the F.I.R. was got written by the
police Inspector at about 10 a.m. and if
this is so, the prosecution case that F.I.R.
was lodged at the police station at 8.30
a.m. also stands falsified. From the said
substantive evidence on record it cannot
but be held that the F.I.R. of this case has
been prepared with the confabulation and
manipulation of the police and the same
was not lodged at the police station at the
time when it is said to have been lodged.
In these facts once the very authenticity of
the F.I.R. becomes doubtful the entire
prosecution case becomes doubtful.

17.

Learned
counsel
for
the
appellants then contended that though
PWs 1 and 2 are said to be eye witnesses
of the incident but from the evidence on
record a reasonable doubt is created that
they have not seen the incident. To
appreciate this argument of the learned
counsel we have examined the evidence on
record and we find substance in the
submissions of the appellants' counsel. We
find that there is a material contradiction
between medical and oral evidence, in
asmuch as, in the F.I.R. the informant PW1 has stated that the appellant Bijendra
inflicted gandasa blows on the naval
region of the deceased but in the postmortem report there is no injury on the
naval region. In fact all the gandasa
injuries are on face and head. Faced with
this situation the prosecution gave up the
initial or the founding prosecution story
that Bijendra inflicted gandasa blows on
the naval region. The said two eye
witnesses testified that appellant Bijendra
inflicted gandasa blows on the deceased.
In this regard we also notice another
significant fact on record which belies the
eye witness account of the said witnesses.
These witnesses have deposed in the trial
that when the appellant Bijendra was
inflicting gandasa blows on the deceased
one unknown accused had held the
deceased by her head. From the post
mortem report it is evident that except one
lacerated wound and one abrasion, all
other gandasa injuries are on the right side
of head and face of the deceased. 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 cannot be believed that one
accused had held the deceased by her head
while another accused was inflicting
gandasa blows on the head and face. It
appears to be improbable that a person
may inflict gandasa blows on head and
face while the head is held by another
person. Therefore, this part of the
prosecution story is highly improbable and
doubtful. This circumstance clearly speak
that the said two eye witnesses have not
seen the incident and are giving false
version with regard to manner of assault
on the deceased. Once we hold the eye
witnesses are unreliable on the manner of
assault, and as noticed above, there is also
contradiction in oral and medical evidence
as no injury was found on the naval region
of the deceased the conviction of the
appellants cannot be sustained.

18. Now we may also deal with the
motive as pleaded by the prosecution. The
motive for committing the crime is
assigned
to
the
appellant
Bijendra.
According
to
prosecution
appellant
Bijendra's
father
Ramchand
had
1 All. Bijendra Singh & Anr. Vs. State of U.P.
1413
transferred his 11-12 bighas of land to the
deceased Smt. Ram Devi. The deceased
was trying to get her name mutated on the
said land, which was objected by the
appellant Bijendra. However, when the
deceased did not listen to the objections of
the appellant and continued to pursue her
efforts in that regard the appellant Bijendra
murdered her. We find from the evidence
on record that the deceased Ram Devi was
issue-less, therefore, after her death
appellant Bijendra alone would inherit
entire properties of his father, and that
being so, there was no reason for the
appellant Bijendra to have committed
murder of his step mother, who, according
to evidence on record, had brought up the
appellant after the appellant's mother had
died when the appellant was only 7-8
years old. Even other-wise the prosecution
story that the father of the appellant
Bijendra had transferred his 11-12 bighas
of land to the deceased and the deceased
was making endeavors in the consolidation
proceedings to get her name mutated on
that property does not merit acceptance as
the prosecution has not proved by
documentary evidence the fact of transfer
of said 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. In the
circumstances we are unable to accept the
version of motive as set up by the
prosecution. On the other hand there may
be a reason or motive for the PW-1 to
implicate the two appellants in this case, as
she was aware that if the appellants are
convicted she would be a beneficiary of
the properties of the father of the appellant
Bijendra. It was for this reason that the
defence has given a suggestion in the trial
that it is not the appellants but the
informant had murdered the deceased.

19. Hence, on the cumulative evaluation
of the evidence on record and testing the
prosecution evidence on the anvil of
probabilities we are of the view that the
prosecution has failed to establish the guilt of
the appellants beyond all reasonable doubts
and as such the appellants are entitled to get the
benefit of doubt. We, therefore, allow the
appeal and set aside the judgement and order
of conviction and sentence of the appellants
and acquit them of the charges. The appellants
are on bail, their bail bonds are cancelled and
sureties are discharged.
----------
(2020)1ILR 1412

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.11.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Criminal Appeal No. 3815 of 2014

Vinay Kumar Pandey ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.K. Yadav, Sri Rajeev Lochan Shukla,
Sri Santosh Kumar Singh Paliwal, Sri Sushil
Kumar Dwivedi

Counsel for the Respondent:
A.G.A.

A. Code of Criminal Procedure, 1973 -
Section 374(2) & Indian Penal Code,
1860 - Sections 302 -challenge to-dying
declaration worthiness - two certificate
regarding mental fitness of deceased
issued by the doctor - the deceased
remained alive for a week-husband did
not visit to enquire about her welfareaccused convicted u/s 304 Part II instead
u/s 302 in the light of the dying
declaration of the deceased. (Para 20 & 21)