Bidhey vs State of U.P.

Poonam Srivastav, J.—This is an appeal on behalf of appellant Bidhey against the judgment and order dated 13.8.1982 passed by the Ist Additional Sessions Judge, Bijnor in Session Trial No. 329 of 1981 convicting the appellant u/s 304 Part II I.P.C. and awarding a sentence of 7 years R.I. and convicting u/s 308 I.P.C. and sentence of two years R.I. Both the sentences were directed to run concurrently.

Two more accused namely Kalloo and Smt. Dalloo were arrayed as co-accused and sent up for trial. However, benefit of doubt was extended to co-accused Kalloo and Smt. Dalloo and consequently they were acquitted.

Ms. Anita Srivastava Advocate was appointed as Amicus Curiae by this Court vide order dated 13.11.2009. She appeared today and argued on behalf of appellant.

Sri A.K. Jain, learned A.G.A. appeared on behalf of the State.

On an oral information given by the complainant, a chik F.I.R. was prepared at the Police Station on 18.9.1981 at 21.10 P.M. by constable Vipin Pal, PW-2. A non-cognizable report was registered u/s 323 I.P.C. in G.D. of the Police Station. Subsequently on 19.9.1981 an information was received at the police station at 8.00 A.M. that the injured Smt. Parmeshwari died in Seohara Hospital at 7.30 A.M. and on the basis of this information, case was converted u/s 304/323 I.P.C. The first informant Prakash PW-5 is also said to have received injuries. Both the injured namely first informant and deceased Smt. Parmeshwari were examined on 18.9.1981 by Dr. S. Singh PW-7.

The first informant Prakash was examined on 18.9.1981 at 8.45 P.M. His injuries are detailed herein below.

Examined Prakash aged about 20 years, s/o Santu, R/o Pithapur, P/S Seohara on 18.9.81 at 8.45 P.M. came by self.

M.I. Black mole on the Rt. side of cheek on about 1/2 cm. above Rt. mandible.

Injuries:

Lacerated wound 2 1/2 Cm. x 3/4 Cm. on the right side of scalp 7 Cm. from right ear. It is bone deep with fresh bleeding. Advise for X-ray.

Faint contusion 2 Cm. x 1 Cm. just below left elbow with reddish in colour.

Abrasion 1 Cm. x 1/2 cm. on the lateral aspect left wrist.

Lacerated wound 1/2 cm. x 1/4 cm. on the Rt. side of face, skin deep with fresh bleeding.

Injury Nos. 1, 2 & 4 are caused by blunt object & No. 3 is by friction. No. 1 is kept under observation. Advise for X-ray. All other are simple. Duration is fresh.

LTI of Prakash Sd/- Illegible Attested. 18.9.81 Sd/- Illegible (Dr. Sawai Singh) 18.9.81 Injuries of deceased was examined on 18.9.1981 at 8.30 P.M. Her injuries are detailed herein below.

Examined Parmeshari aged about 60 years, W/o Late Santu Singh, R/o Pithapur, P/S Seohara on 18/9/81 at 8.30 P.M. brought by her son Prakash.

M.I. (1) Black mole on the left side of upper part chest 2 cm. from left clavicle.

(2) Two black moles on the Rt. cheek.

Inj. (1) Lacerated wound 7 cm. x 1 cm. on the middle of the scalp just in the mid line. It is bone deep with fresh bleeding . Adv. for X-ray.

(2) Traumatic swelling in area 9 cm. x 4 cm. on the above wound. Adv. X-ray.

There is blood present in the vomitters of the patient. Both injuries are caused by blunt object weapon. They are kept under observation. Advise for X-ray. Duration is fresh.

R.T.I. of Parmeshwari Sd/- Illegible Attested. 18.9.81 Sd/- Illegible (Dr. Sawai Singh) 18.9.81 (Seal) (Seal)

Dr. R.K. Nigam PW-8 conducted post mortem examination on the body of Parmeshwari on 19.9.1981 at 5.15 P.M. According to post mortem report in the opinion of doctor, following ante mortem injuries were found on her body:

(1) Stitched wound 6 cm. in length with seven stitches on it on the middle of head 11 cm. from the root of nose. Vertical in direction. On removing the stitches the wound was 1/2 cm. in width and bone deep. Edges are irregular and are lacerated. On exposing further the right parietal bone was fractured from its middle to right ear. Clotted blood was present in the scalp and in the brain substance and menengres with middle of head and clotting were also present under the right parietal bone in its middle. The brain substance and menengres were lacerated under the injury.

(2) The abdomen was empty. Intestine contained other partly material were filled with gases. Heart chamber contained clotted blood which was upto 4 Ozs.

The motive for the offence is dispute regarding a residential house in which the first informant resided. According to him, the house belongs exclusively to his mother and her other children. Cousin of the first informant had no claim or access to the house. However, he executed a sale deed in favour of the appellant, his sister Smt. Dalloo and her husband Kalloo. The accused tried to take possession of the house on the basis of sale deed and came to the disputed house in the afternoon with some few bundle of clothes and also a cot. This was not permitted by the first informant and deceased. However, the accused are said to have left the house after giving warning that they be ready for dire consequences. In the same evening at about 6.00 P.M., three accused armed with lathis came there along with a cot and again started putting the cot in the house of the complainant which was once again resisted and thus ensued the assault by lathis. On hearing alarm of the first informant, deceased Parmeshwari came from inside the house but she was also assaulted by the appellant. The lathi is said to have an iron rod fixed at its end. As a result of injury, she fell down unconscious and thereafter never regained consciousness. She was taken to the hospital where she was medically examined by Dr. S. Singh PW-7.

Prosecution examined eye witness PW-1 Murari Lal, PW-3 Raghunath Singh, PW-4 Balbir, PW-6 Nathu in addition to the first informant Prakash PW-5. All the independent witnesses were declared hostile and conviction rests on a solitary evidence of Prakash PW-5. In addition to his testimony, formal witnesses such as Dr. S. Singh PW-7 who examined injuries of the injured and Dr. R.K. Nigam PW-8 performed post mortem on the body of the deceased, PW-9 Investigating Officer and PW-2 Vipin Pal who proved chik, were examined.

The accused appellant Bidhey is also said to have received injuries in the incident. His injuries were examined on 19.9.1981 at 1.20 P.M. in District Hospital Bijnor. His injuries are detailed herein below:

Examined Shri Biddhi Singh, aged about 45 years, s/o Sri Tulsi, R/o Vill. Pithapur, P/S Seohara, Distt. Bijnor at Distt. Hospitala Bijnor at 1.20 P.M. on 19 Sept. 1981 with his consent B/ By Self.

M.I. A black mole on left side of chest 4.5 cm. away from medial end of left clavicle.

Injuries:

(I) Abraded contusion 3 cm. x 1 cm. on the vertex anteroposterior 1cm. left to mid line. 17 cm. behind nasion. Reddish & scabbed.

(II) Abrasion 2 cm. x 1 cm. on the top of left shoulder. Reddish.

(III) Abrasion 0.5 cm. x 0.3 cm. 2 cm. medial to injury No. (II) Reddish.

(IV) Abraded contusion 10 cm. x 1 cm. on the back of distal part of left forearm. Above downwards, just above head of ulna. Reddish.

(V) Abrasion 0.3 cm. x 0.2 cm. on the back of distal part of left forearm. 5 cm. above wrist. Reddish.

(VI) Abrasion 0.2 cm. x 0.2 cm. on the dorsal aspect of root of left middle finger. Reddish.

(VII) Abraded contusion 3 cm. x 1 cm. on the back of left lower chest 6 cm. left to mid line. Reddish.

(VIII) Contusion 5 cm. x 0.5 cm. two parallel & 1 cm. apart on Right lower chest, 12 cm. below left scapula. Reddish.

(IX) Abrasion 0.3 cm. x 0.2 cm. on the Rt. side of neck 5 cm. above to behind medial end of Rt. clavicle. Reddish.

(X) C/o pain in back, waist & throat. No ext. mark of injury is seen except No. (IX) on throat.

Opinion: All the above injuries are simple about 3/4 day old & (I) to (VII) caused by friction against hard object & (VIII) by blunt object & (IX) by friction against hard object. No opinion can be given about inj. No. (X) except its throat part which may be related to injury No. (IX).

LTI. Of Biddhi Singh Sd/- Dr. S.M. Lal Attested. 19.9.81. Sd/- Illegible 19.9.81.

The argument of Ms. Anita Srivastava is that independent witnesses produced by prosecution have stated in unison that after execution of sale deed in favour of Biddhey, he started residing in the southern portion of the house whereas the first informant resides in the northern portion. Ram Swaroop Singh DW-1 has also stated that after the transfer by virtue of sale deed, the appellant gained possession of part of the house. However, the first informant continued to reside in the eastern portion of the house and on this basis, it is submitted that there was some bad blood between two parties on account of sale deed in favour of Biddhey and admittedly both sides have received injuries and there is no explanation by the prosecution regarding injuries of the appellant. On the contrary, it is also admitted that the injuries of the appellant were examined. Two co-accused whose role is almost identical to that of the appellant and entire prosecution case commenced on an assumption that three accused who faced trial, shared common intention and common object and conviction recorded is with the aid of Section 34 I.P.C. The evidence is also same and since two of them namely Smt. Dalloo and her husband Kalloo have been acquitted, conviction in respect of one of the appellants, cannot be upheld by this Court. The first informant who is only witness, on whose testimony the judgment of conviction is recorded. It is also pointed out by Ms. Anita Srivastava that the fact that there was an iron strip at the end of the lathi, which is weapon of assault used by the appellant, has neither been mentioned in the F.I.R. nor in the statement before the Investigating Officer. The explanation given by the first informant is that he was not aware that there was an iron strip attached to the lathi used by the appellant and he found the said strip lying at the place of assault on the next day and then he assumed that the said iron strip must have been attached with the lathi which was used for giving blows to the deceased. He was not able to see this article prior to the time when he found it lying somewhere in the house. This fact itself is sufficient to bely the entire prosecution case and presence of first informant and his narration that he had witnessed the incident.

Learned Counsel for the appellant has also pointed that on the basis of sale deed, mutation had already taken place and it is admitted by PW-5 Prakash that since Baburam and others i.e. cousins of the first informant had executed a sale deed, therefore, PW-5 has admitted that he did not raise any objection in the mutation proceeding. Once again it is emphatically argued that since the prosecution has admitted that no objection whatsoever was raised during mutation proceeding, it is evident that the entire motive set up by the prosecution is flimsy and falls apart. Learned Counsel has also emphasized that two injuries were caused to the deceased Parmeshwari as well as PW-5 had also received injuries, therefore, participation of more than one accused is only an inference which was assumed only on guess work and cannot be taken into consideration. Argument is that the learned Sessions Judge having acquitted two other accused, it was the burden of the prosecution to substantiate the story and conviction of the present appellant alone does not fit with the theory detailed in F.I.R.

Learned Counsel has also cited two decisions of the Apex Court in support of her arguments. The first decision is, D.V. Shanmugham and Anr. v. State of U.P. 1997 SCC (Cri), 691. This decision is in support of the argument that no recovery memo was prepared about blood stained earth or any other articles etc. coupled with the fact that two accused alleged to have participated in the incident, have been acquitted, therefore, the appellant is also entitled to the benefit of doubt, coupled with the fact that independent witnesses have been declared hostile and reason for false implication of the appellant is almost admitted by the prosecution in as much as the house in question was purchased by the appellant from the cousin of PW-5 and both parties were residing in the same house. This was the bone of contention.

The next decision relied upon by the learned Counsel is Halke and andother Vs. State of M.P., This decision is again on the question that the prosecution has not been able to explain injuries found on the accused person and the appellant could have been allowed right of private defence.

Learned A.G.A. has disputed each and every arguments of the learned Counsel on behalf of the appellant and has tried to support the judgment of the learned Sessions Judge but it does not inspire much confidence. The anomalies pointed out by Ms. Anita Srivastava was left unexplained and unanswered.

Admittedly since all the independent witnesses have been declared hostile and prosecution being unable to explain injuries of the appellant which are ten in number, admission of PW-5 that he was aware about the mutation proceeding and name of the appellant having been recorded in the revenue records, also clear admission on the part of the first informant that he did not raise any objection in the mutation proceeding because he was aware that property has been purchased by the appellant, there was no occasion to raise any objection so far use of residential accommodation on the date of incident. I am of the considered view that prosecution has not been able to substantiate its case by adducing evidence of independent witnesses. Besides, it is also true that two co-accused having been acquitted, the appellant is also entitled to the same benefit. I am of the considered view that the court below completely overlooked new development during trial when the first informant came up with the story that an iron strip attached to the lathi of the appellant is the weapon of assault and half hearted explanation that he found it on the next day, cannot be accepted without reservation. I am of the opinion that conviction of the appellant cannot be upheld on the basis of evidence discussed above.

In the circumstances, the appeal is allowed. The judgment and order dated 13.8.1982 passed by the Ist Additional District and Sessions Judge, Bijnor in Session Trial No. 329 of 1981 is set aside. The appellant is acquitted. He need not surrender and the sureties stand discharged.