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 non-examination 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.”
ALLAHABAD HIGH COURT
Case :- CRIMINAL APPEAL No. - 3079 of 1985
Bijendra Singh Vs State of U.P.
Hon'ble Govind Mathur,Chief Justice
Hon'ble Vivek Varma,J.
(Per.:-Hon. 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.
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 (Ex-Ka-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 ½ 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 PW-3. Budh
Singh, a witness of extra judicial confession is PW-4. The
investigating officer of the case is Mahaveer Singh, who is
PW-5.
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 non-examination 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 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 Subsection
(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:-
{Vernaculars omitted}
16. It is thus apparent from the aforequoted substantive
evidence of PW-1 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 PW-1 has stated that the
appellant Bijendra inflicted gandasa blows on the naval region
of the deceased but in the post-mortem 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 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.
Order Dated: 17.12.2019
Ravindra Kumar Singh
(Vivek Varma, J.) (Govind Mathur, C.J.)
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