Radhakishan Agrawal , J
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 09.10.2017 passed in Sessions Trial No. 19/2013 by the Sessions Judge, Kondagaon, District: Kondagaon (C.G.) by which the appellant stands convicted & sentenced as under:-
|
Conviction |
Sentence |
In Default |
|
U/s 302 of IPC |
Life imprisonment with a fine of Rs.200/- |
In default of payment of fine amount additional RI for 3 months |
2. Case of the prosecution, in short, is that on 02.11.2012, at about 8:30 pm at Village: Chote Sohanga, Police Station: Makdi, the appellant assaulted Padmini Netam with Tangi by which she suffered injuries and died. Further case of the prosecution, in brief, is that the present appellant is the cousin of the deceased Padmini and Ku. Malti (PW-3). Quarrels used to take place between them very often on account of land dispute. On 02.11.2012 when Ku. Malti (PW-3) was returning from market, she saw the present appellant running away through verandah of her house and thereafter she found Padmini (deceased) lying dead with an axe stuck in her head. She started hue and cry, by which Mogdi Bai (PW-5) who was sleeping on another room of her house woke up and also saw the dead body of the deceased, pursuant to which Merg Intimation Ex.P/5 and FIR Ex.P/6 were registered and thereafter, the inquest was conducted vide Ex.P/8. Thereafter, dead body of the deceased was sent for postmortem examination which was conducted by Dr. R.N. Bhanwar, (PW-6) who has proved the postmortem report Ex.P-13, in which cause of death was stated to be due to head injury and the death was homicidal in nature. Seized articels were sent for chemical examination vide Ex.P/20, and vide Ex.P/22, Serological report was brought on record according to which, blood was found on the seized articles.
3. Statements of witnesses under Section 161 of Cr.P.C. were recorded. After completion of investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.
4. In order to bring home the offence, prosecution examined as many as 8 witnesses and exhibited 22 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.
5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the aforesaid offences and sentenced as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred.
6. Learned counsel for the appellant submits that the trial Court has not properly appreciated the overall material evidence available on record for holding the appellant guilty. He further submits that the appellant has been convicted mainly on the basis of evidence of Ku. Malti (PW-3) and Mogdi Bai (PW-5), but they are not reliable witnesses as they are not eye witnesses to the incident and their evidence does not inspire confidence. He further submits that the case of the prosecution is based on circumstantial evidence which the prosecution has failed to prove chain of circumstances.
7. Learned counsel for the State supports the impugned judgment and submits that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and learned trial Court was fully justified in convicting and sentencing the appellant herein for the aforesaid offence, therefore, the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
9. The first question for consideration as to whether the death of the deceased- Padmini was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-13 proved by Dr. R.N. Bhanwar (PW-6), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.
10. The next question that falls for our consideration would be whether the learned trial Court was rightly justified in holding the appellant as author of the crime in question.
11. The prosecution case is based on the testimonies of Ku. Malti (PW-3) and Mogdi Bai (PW-5) who are cousin sisters of the appellant herein. PW-3 Ku. Malti has stated in her statement that on the date of incident, she was sleeping inside the room and the deceased Padmini was sleeping outside the room. At 07:30 pm, when she came out of the house she saw the appellant fleeing and also saw her sister Padmini (deceased) lying dead. She has further stated that in her right ear Tangi was stuck and when she made hue and cry, the villagers came at the place of incident. However in her cross-examination, she has clearly stated that she has not seen the incident and not seen any kind of weapon on the hands of the appellant while he was fleeing away. As such, when we consider the statement of this witness, it appears that this witness is not the eye witness to the incident and appears that she saw the appellant outside of her house.
12. PW-5 Smt. Mogdi Bai, who is the aunt of the deceased has stated that on the date of the incident she was sleeping and at about 8 pm, the present appellant came and assaulted Padmini (deceased) with Tangi and fled away from the spot. In Para 4 of her cross-examination, she has admitted that she has not seen the incident as she was sleeping at that time and she has no knowledge who has assaulted the deceased. She also admitted that PW-3 Ku. Malti had not informed her that appellant fled away after seeing her and also that the appellant had killed the deceased with Tangi. As such, it appears that there are material contradictions and omissions in the statement of this witness, which does not support the case of the prosecution.
13. Seized articles were sent for chemical examination vide Ex.P/20 to FSL, but as per Serological Report (Ex.P/22) though blood was found on the Tangi and other articles i.e. T-shirt of accused but it could not be established that it was human blood. Thus, recovery of weapon of offence and T-Shirt of accused is of no use in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781. In this matter Supreme Court has held that if recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:
“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”
14. Though as per statement of PW-3 Ku. Malti that when she came out of her house, she saw the appellant fleeing, this fact may be relevant but it could not be the basis for conviction of offence like Section 302 of IPC. In the matter of Javed Alam v. State of Chhattisgarh and another (2009) 6 SCC 450 their Lordships of the Supreme Court have held the rule of res gestae as under:-
“19. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction. In Gentele Vijayavardhan Rao v. State of A.P. (1996) 6 SCC 241 it was held in para 15 as follows: : (SCC pp. 246-47)
Section 6 of the Evidence Act and some of the succeeding Sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exception to “hearsay" rule. Section 6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it.”
15. At this stage, it would be appropriate to notice Section 6 of the Evidence Act, which states as under:-
“6.Relevancy of facts forming part of same transaction:- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.”
16. The aforesaid provision deals with the relevancy of facts forming part of the same transaction. Facts, though not in issue, if they are so connected with a fact in issue as to form part of the same transaction, are relevant, whether those facts occurred at the same time and place or at different times and places. This section admits those facts the admissibility of which comes under the technical expression res gestae (i.e. the things done, including words spoken in the course of a 10 transaction), but such facts must “form part of the same transaction”. (See Sardul Singh v. State AIR 1957 SC 747).
17. Section 6 of the Indian Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form the part of the same transaction ruling out any possibility of concoction and it is usually known as rule of res gestae.
18. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the above referred matters, it is quite vivid that the star prosecution witnesses i.e. the sister of the deceased PW-3 Ku. Malti and aunt of the deceased PW-5 Smt. Mogdi Bai have not supported the case of prosecution, as in their cross-examination they have clearly stated that they have not seen the incident. Furthermore, the recovery of Tangi, and other articles which have been seized, is of no use in absence of definite opinion with regard to human blood and that the only fact that the appellant was seen fleeing outside the house of deceased cannot be the sole ground for conviction. Therefore, we are of the considered opinion, the appellant is entitled for acquittal on the basis of benefit of doubt. The learned trial Court is totally unjustified in convicting and sentencing the appellant for offence under Section 302 of IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 09.10.2017, passed by the learned trial Court is liable to be set-aside.
19. Consequently, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set-aside. He is acquitted of the said charge. Since the appellant is in jail from 04.11.2012, we direct that he be released from jail forthwith, if not required in any other matter/case.
20. In the result, the criminal appeal is allowed.
21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.
