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2012 DIGILAW 601 (UTT)

Devendra Singh Bisht v. State of Uttarakhand

2012-09-19

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT BARIN GHOSH, C. J. (Oral) In the First Information Report, lodged at 07:45 a.m. of 25th October, 2001, by Deepak (PW1), it was alleged that the appellants murdered his mother Smt. Suman at 07:00 a.m. in his house and that he witnessed the murder being committed in his presence along with one Shyam Singh (PW8). This First Information Report contained the signature of PW1 as well as the signature of Kunwar Singh (PW9). PW9 happens to be the husband of the sister of the deceased. In the First Information Report, it was alleged that, while appellant Sampati Bisht was restraining the movement of the victim by catching her hair, appellant Devendra Singh Bisht inflicted injuries on the victim by a patal, a heavy sharp-edged weapon, and, at the same time, appellant Dhanendra @ Dhirendra Bisht was inflicting blows on the victim with a cricket wicket. This First Information Report led to filing of a charge-sheet against all the appellants alleging commission of offence punishable under Section 302, read with Section 34, of the Indian Penal Code. Appellants were charged also for having committed offence punishable under the said Sections. 2. At the trial, prosecution proved, through PW2, the post mortem report of the victim. PW2 was the doctor, who conducted the post mortem. The post mortem report suggested that the cause of death is ante mortem injuries caused by sharp-edged object. The post mortem report suggested that the victim received eight injuries. Seven injuries were shown as incised wounds, some of them bone deep and some muscle deep. The eighth injury was initially shown as an incised wound and, later, converted to lacerated wound. However, it was indicated that the said injury is 1 x 1 cm into muscle deep on the outer part of the middle thigh. PW2, in course of tendering evidence, did not, however, clarify that a lacerated wound may be of that nature. As the wound has been described, the same appears to be incised wound. 3. In course of tendering evidence, PW1 held out that there was a water tap, in which some wooden chip was stuck. Victim asked PW1 to fetch a plier. PW1 returned with a plier when he found that the victim and the appellants are quarrelling near the said tap. 3. In course of tendering evidence, PW1 held out that there was a water tap, in which some wooden chip was stuck. Victim asked PW1 to fetch a plier. PW1 returned with a plier when he found that the victim and the appellants are quarrelling near the said tap. He stated that, at about that time, appellant Devendra Singh Bisht and appellant Dhanendra @ Dhirendra Bisht left the place and went to the backside of their house and returned. While appellant Devendra Singh Bisht returned, he had a patal in his hand and, while appellant Dhanendra @ Dhirendra Bisht returned, he had a cricket wicket in his hand. PW1, then, stated that, while appellant Sampati Bisht held the victim by her hair, appellant Devendra Singh Bisht inflicted injuries on the victim by using the patal and appellant Dhanendra @ Dhirendra Bisht gave blows with the cricket wicket. No doubt, one side of the cricket wicket has a sharp edge and the same is supposed to be covered by a small metal sheet, but PW1, in course of evidence, did not describe the cricket wicket that was allegedly used by appellant Dhanendra @ Dhirendra Bisht. PW1, at the same time, did not hold out in course of tendering evidence that appellant Dhanendra @ Dhirendra Bisht was using the cricket wicket as a spear. Therefore, PW1 held out that appellant Dhanendra @ Dhirendra Bisht was using the cricket wicket as a stick. The post mortem report does not suggest that the victim received any injury, which could be, thus, inflicted. 4. PW1 held out that the incident narrated by him was also watched by Shyam Singh (PW8). PW8 did not support the version of PW1 and, accordingly, was declared hostile. In the circumstances, the incident complained of was seen by PW1 alone. If his evidence is looked at, the same would show that the victim on the one side and the appellants on the other were quarrelling amongst each other. At that stage, appellants Devendra Singh Bisht and Dhanendra @ Dhirendra Bisht left the place of incident and returned respectively with a patal and a cricket wicket. Appellants Devendra Singh Bisht and Dhanendra @ Dhirendra Bisht, thereafter, inflicted blows respectively by patal and cricket wicket. Appellant Sampati Bisht was holding the hair of the victim. At that stage, appellants Devendra Singh Bisht and Dhanendra @ Dhirendra Bisht left the place of incident and returned respectively with a patal and a cricket wicket. Appellants Devendra Singh Bisht and Dhanendra @ Dhirendra Bisht, thereafter, inflicted blows respectively by patal and cricket wicket. Appellant Sampati Bisht was holding the hair of the victim. The said state of affair clearly indicates that PW1 has not been able to establish that appellant Sampati Bisht, from the beginning, intended that the victim will be inflicted injuries by patal and cricket wicket. The overt act on the part of appellant Sampati Bisht, according to PW1, appears to be catching hold of the hair of the victim. The fact remains that, while appellant Sampati Bisht was a woman, the victim was also a woman and they were quarrelling before an arrangement was made to bring patal and cricket wicket to inflict injuries upon the victim. In such circumstances, if appellant Sampati Bisht was holding the hair of the victim, that cannot be treated as an overt act in respect of intention to cause injuries to the victim through patal and cricket wicket. 5. At the same time, as above, a close scrutiny of the evidence of PW1 and the evidence reflected on the post mortem report would create a doubt as regards involvement of appellant Dhanendra @ Dhirendra Bisht. In the event, appellant Dhanendra @ Dhirendra Bisht was, in fact, present at the place of occurrence, armed with a cricket wicket, and had intention of causing injury to the victim, he would have had given at least one blow with the cricket wicket to the victim. However, the medical report does not suggest that the victim suffered any injury, which may be caused by a blow given through a cricket wicket. 6. The last question is, whether appellant Devendra Singh Bisht can be said to be present at the time of incident and given blows to the victim through the patal that he brought from behind his house? The learned counsel for the appellants submitted that the incident, as reported to have taken place at 07:00 a.m. in the morning of 25th October, 2001, is doubtful. It was contended that PW1 was not a witness to the incident. The learned counsel for the appellants submitted that the incident, as reported to have taken place at 07:00 a.m. in the morning of 25th October, 2001, is doubtful. It was contended that PW1 was not a witness to the incident. It was also submitted that, since there was long standing enmity between the family of the deceased and the family of the appellants, PW1 unjustly implicated the appellants at the instance of PW9. It was submitted that the evidence of PW8 and PW9 and a closer scrutiny of the evidence of PW1 would show that PW1 went to the house of PW9 on 24th October, 2001 in order to invite him to attend a meeting at 10:30 a.m. of 25th October, 2001 to sort out the remaining disputes between the family of the victim and the family of the appellants; and that PW9 and PW1 came from the house of PW9 in between 07:00 – 07:30 a.m. of 25th October, 2001 to the house of PW8 in order to invite PW8 also to attend the said meeting. It was contended that PW8, in course of tendering evidence, clearly held out that PW9 and PW1 came to his house at around 07:00 - 07:30 a.m. of 25th October, 2001 to invite him to attend the said meeting to be held at 10:30 a.m. of 25th October, 2001. The question is, whether the evidence tendered by PW8 is at all binding on the court? While PW8 deposed that PW9 and PW1 came to his house at around 07:00 – 07:30 a.m. of 25th October, 2001 with the object of inviting him to attend the said meeting, it is the case of PW1 that PW8 was a witness to the incident, which, according to PW1, occurred at around 07:00 a.m. in the morning. PW8 was shown statements said to have been given by him, recorded under Section 161 of the Code of Criminal Procedure, to the effect that around 07:00 a.m. in the morning, he was present at the place of incident. Therefore, there is no clear cut evidence to the effect that PW8 was present at his home at around 07:00 – 07:30 a.m. of 25th October, 2001 and, if that be so, it is doubtful whether at 07:00 – 07:30 a.m. of 25th October, 2001, PW9 and PW1 met PW8 at the residence of PW8. Therefore, there is no clear cut evidence to the effect that PW8 was present at his home at around 07:00 – 07:30 a.m. of 25th October, 2001 and, if that be so, it is doubtful whether at 07:00 – 07:30 a.m. of 25th October, 2001, PW9 and PW1 met PW8 at the residence of PW8. Further, the evidence of PW9 shows presence of PW8 at the place of occurrence at around 07:15 a.m. of 25th October, 2001, inasmuch as, according to him, PW9 reached the place of incident at around that time when PW8 was present there. From the evidence of PW1, PW8 and PW9, there is, now, no dispute that there was a meeting scheduled to be held at 10:30 a.m. on 25th October, 2001 to sort out certain disputes inter se the family of the victim and the family of the appellants. Who asked PW8 to attend the said meeting, has not been said by PW1 or by PW9. PW8 held out that he was asked by PW9 and PW1. PW9, according to him, was invited to attend the said meeting by the victim herself over phone on 24th October, 2001. There is no cross-examination of PW9 on this count. Therefore, the defence accepted that PW9 was informed over phone by the victim on 24th October, 2001 to attend the said meeting. In those circumstances, question of PW1 going to the house of PW9 on 24th October, 2001 for the self-same purpose and, for that matter, remaining at the house of PW9 during the night of 24th October, 2001, did not arise. As aforesaid, the assertion of PW8 to the effect that he was at his home around 07:00 – 07:30 a.m. of 25th October, 2001, in the backdrop of the evidence led by the prosecution, was not binding on the court and the same is also not binding on us. Therefore, on the basis of the evidence, as was led, there is hardly any scope of expressing any doubt as to the presence of PW1 to witness the incident in question, as was projected by the prosecution. 7. Therefore, on the basis of the evidence, as was led, there is hardly any scope of expressing any doubt as to the presence of PW1 to witness the incident in question, as was projected by the prosecution. 7. The conclusion, therefore, would be that the prosecution has been able to make out a good case against appellant Devendra Singh Bisht for offence punishable under Section 302 of the Indian Penal Code, but the prosecution has not been able to establish any case punishable under Section 302, read with Section 34, of the Indian Penal Code against appellants Sampati Bisht and Dhanendra @ Dhirendra Bisht. 8. We, accordingly, confirm the judgment under appeal insofar as the same has convicted appellant Devendra Singh Bisht, but set aside the judgment insofar as the same convicted appellants Sampati Bisht and Dhanendra @ Dhirendra Bisht. The sentence awarded against appellant Devendra Singh Bisht is confirmed. 9. Appellant Devendra Singh Bisht is in jail. He is directed to serve out the remaining part of the sentence. Appellants Sampati Bisht and Dhanendra @ Dhirendra Bisht are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. The appeals, accordingly, stand disposed of. 10. Before we part, it is our duty to record that appellant Dhanendra @ Dhirendra Bisht has applied for being adjudged as a juvenile, as on the date of the incident. In support thereof, he has relied upon his matriculation certificate. In terms of the matriculation certificate, appellant Dhanendra @ Dhirendra Bisht was less than 14 years at the time when he had appeared for the matriculation examination. According to the Board, which conducted the said examination, people aspiring to sit in the said examination will be entitled to do so only when they are above the minimum age prescribed by the State Government where the school, from where they are pursuing the course, is situate. According to the State of Uttar Pradesh, the minimum age was 14 plus. In the certificate, it has not been shown that special permission of the State was taken. Be that as it may, according to the said certificate, appellant Dhanendra @ Dhirendra Bisht was a juvenile as on the date of the incident. But, we express no opinion as to the validity of the said certificate in the background of what has been stated above. Be that as it may, according to the said certificate, appellant Dhanendra @ Dhirendra Bisht was a juvenile as on the date of the incident. But, we express no opinion as to the validity of the said certificate in the background of what has been stated above. Having regard to the fact that we have held in favour of appellant Dhanendra @ Dhirendra Bisht, it was not felt necessary to make further probe into the matter. We conclude the said Application thus. 11. Let a copy of this judgment be sent to the court below along with the lower court records for compliance. Let a copy of this judgment be also sent to the Superintendent of the Jail, where appellant Devendra Singh Bisht has been lodged, for his information and doing the needful.