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2013 DIGILAW 119 (CHH)

JAI KARAN v. STATE OF M. P.

2013-04-04

R.N.CHANDRAKAR, SUNIL KUMAR SINHA

body2013
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.:- 1. This appeal is directed against the judgment dated 20th of November, 1997 passed in Sessions Trial No. 200/95 by the Additional Sessions Judge, Janjgir, Bilaspur. By the impugned judgment, the appellant has been convicted u/S 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under :- 2.1 Deceased- Ashok Bai was wife of the appellant. The appellant, deceased- Ashok Bai and parents of the appellant were residing together in a house in village Sewai. The appellant and the deceased (husband and wife) used to sleep in a separate room and the parents of the appellant used to sleep in an other room in the same house. The case of the prosecution is that in the intervening night of 12.2.95 & 13.2.95, the appellant and the deceased were sleeping together in their room. The allegations are that in the night, the appellant assaulted the deceased by using an adze (basula). He caused multiple serious injuries to the deceased. The deceased succumbed to those injuries. Since the incident took place in the privacy of the house in the night, there was no eyewitness to the incident. When the father of the deceased namely-Rameshwar Prasad (PW-2), who was sleeping in the other room of the house heard cries of his daughter-in-law, he went to the room of the appellant and saw that her daughter-in-law was lying in dead condition in pool of blood on her cot having sustained multiple serious injuries. He immediately rushed to village Kotwar-Krishnodas (PW-6) and called other villagers. They saw the dead body of the deceased in the room of the appellant. Rameshwar Prasad (PW-2) lodged merg intimation (Ex.-P/15) and First Information Report (F.I.R.Ex.-P/3). 2.2 The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/1) to the Panchas and prepared inquest (Ex.P/2) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. Rameshwar Prasad (PW-2) lodged merg intimation (Ex.-P/15) and First Information Report (F.I.R.Ex.-P/3). 2.2 The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/1) to the Panchas and prepared inquest (Ex.P/2) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. D.C. Choudhary (PW-4) who notice following injuries on the dead body of the deceased :- (i) Lacerated wound of 9 x 4 x 5 cm just below the right clavicular region; there was fracture on the clavicular region; 2nd, 3rd, 4th, 5th, 6th and 7th ribs were fracture; (ii) Lacerated wound of 4 x ½ inch x ½ cm on the left cheek; (iii) Lacerated wound of 1 x ½ x ¼ cm, muscle cut, over sterno mostoid muscle; (iv) 7 contusions in between the sizes of 1 x ½ cm and ½ x ½ cm near injury no. (i); (v) Contusion of 1 x 1 cm on the right forearm; (vi) Contusion of 1 ½ x 1 cm on the back portion of right palm; (vii) Contusion on the right ring finger having fracture of corresponding phalanx; (viii) Lacerated wound of 1 x ½ x ½ cm on the left portion of neck; & (ix) There were injuries of the sizes of 1 x 1 cm, 1 ½ x 1 cm and 2x1½ cm on the right lung. The deceased was carrying pregnancy of 5 months. The Autopsy Surgeon opined that all the injuries were ante-mortem and the cause of death was shock on account of above injuries and it was homicidal in nature. The postmortem report is Ex.-P/8. 2.3 There was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the main circumstances, on which, the Sessions Judge relied and convicted and sentenced the appellant as above:- (i) The deceased died homicidal death in the room of the appellant; (ii) The father of the appellant namely- Rameshwar Prasad (PW-2) had lodged the F.I.R. (Ex.-P/3) in which he had stated all above facts and had also stated about the incident to many villagers in the night including Krishnodas (PW6 - village Kotwar). (iii) Though the appellant took the plea of alibi, but it was not established by him and the fact remained that the appellant could not explain as to how the deceased died homicidal death in his room in which only two persons (husband and wife) were residing. 3. Ms. Sangeeta Mishra, counsel appearing on behalf of the appellant, has argued that Rameshwar Prasad (PW-2) has turned hostile; he has not supported the case of the prosecution; it was not established that in the morning, he went to the police station and lodge the report (Ex.-P/3) taking the name of the appellant; it comes in the evidence of Rameshwar Prasad (PW -2) that the appellant was not present in the house in the fateful night as he had gone to a different village, where his daughter was married and the Sessions Judge erred in not accepting the plea of alibi. 4. On the other hand, Mr. Rajendra Tripathi, Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties. 6. Rameshwar Prasad (PW-2) is father of the appellant. He had lodged the F.I.R. (Ex.-P/3) in which he mentioned that when he reached to the room of his son, he saw that his daughter-in-law (deceased) was lying in injured condition on her cot in pool of blood and his son (appellant) was standing there having blood stained basula in his hands. His daughter-in-law was scrambling who later succumbed to the injuries sustained by her. Thereafter he went to the villagers including Kotwar-Krishnodas (PW-6) and narrated the incident to them. In his Court evidence, he turned hostile. Even he completely denied the contents of the F.I.R. (Ex.-P/3) and came with the version that his son (appellant) was not present in the house in the fateful night as he had gone to a different village, where his daughter was residing. It appears that a plea of alibi was brought in the evidence of Rameshwar Prasad (PW -2), but no such specific plea was taken by the appellant in his 313 Cr.P.C. Statement. The above plea appears to be casually taken by the appellant. It appears that a plea of alibi was brought in the evidence of Rameshwar Prasad (PW -2), but no such specific plea was taken by the appellant in his 313 Cr.P.C. Statement. The above plea appears to be casually taken by the appellant. It was held by the Supreme Court that the plea of alibi has to be proved with absolute certainty so as to completely exclude the possibility of the presence of the accused at the place on the occurrence at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence (Vide: Shaikh Sattar Vs. State of Maharashtra, (2010)8 SCC 430 and Jitender Kumar Vs. State of Haryana and connected appeal, (2012) 6 SCC 204 ). 7. In the instant case, it comes in the evidence of Rameshwar Prasad (PW-2) that his son (appellant) was not present in the house in the fateful night as he had gone to a different village, where his daughter was residing. Except the above version given by Rameshwar Prasad (PW-2), there is no evidence on record to support the above plea of alibi raised by the appellant. The appellant has not examined any witness in defence to support his plea. Even the sister of the appellant, where the appellant is said to have gone, has not been examined. Therefore, it was not proved by cogent and reliable evidence that the appellant was not present in the house at the time of the incident. 8. Krishnodas (PW-6) was village Kotwar at the relevant time. He deposed that in the fateful night, Rameshwar Prasad (PW-2) came to his house and told him that his son (appellant) had committed murder of his daughter-in-law (deceased) and had absconded. After receiving the said information by Rameshwar Prasad (PW-2), he immediately went to his house and saw the dead body of the deceased in the room of the appellant. He had seen multiple injuries on the dead body of the deceased. Blood was oozing out from the injuries. Thereafter he narrated the incident to Chattu Singh, Dukhit Yadav and many other persons in the night itself. Then, he along with Rameshwar Prasad (PW-2) and Chatram went to the police station where Rameshwar Prasad (PW2) lodged the F.I.R. (Ex.-P/3). 9. He had seen multiple injuries on the dead body of the deceased. Blood was oozing out from the injuries. Thereafter he narrated the incident to Chattu Singh, Dukhit Yadav and many other persons in the night itself. Then, he along with Rameshwar Prasad (PW-2) and Chatram went to the police station where Rameshwar Prasad (PW2) lodged the F.I.R. (Ex.-P/3). 9. Krishnodas (PW-6) was put to lengthy cross-examination by the defence, but nothing material could be brought in the cross-examination, therefore, the above evidence of Krishnodas (PW -6) is intact on record. 10. Ms. Mishra has argued that the evidence of Krishnodas (PW-6) would be the hearsay evidence and would not be admissible. We are unable to accept the said argument in light of the provisions of Section 6 of the Evidence Act. Section 6 of the Evidence Act is titled as 'Relevancy of facts forming part of same transaction'. It provides that 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. Section 6 is an exception to Hearsay rule and admits of certain carefully safeguarded and limited exceptions and makes the statement admissible when such statements are proved to form a part of the res gestae. To form a particular statement as a part of the same transaction or of the same incident or just contemporary to the incident so as to make it reasonably certain that the speaker is still under stress of excitement in respect of the transaction are facts to be considered. 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 and 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 (Vide: Vasa Chandrasekhar Rao Vs. Ponna Satyanarayan, (2000) 6 SCC 286 and Javed Alam Vs. State of Chhattisgarh and Another, (2009) 6 SCC 450 ). 11. Ponna Satyanarayan, (2000) 6 SCC 286 and Javed Alam Vs. State of Chhattisgarh and Another, (2009) 6 SCC 450 ). 11. In case on hand, Rameshwar Prasad (PW-2), who saw his daughter-in-law in injured condition in the mid night, immediately had rushed to the house of village Kotwar- Krishnodas (PW-6) and narrated the entire incident to him. The words used by him, we quote are – ^^esjk yM+dk esjh cgw dh gR;k djds Hkkx x;k gS** . We are of the view that the above narration of Rameshwar Prasad (PW-2) before Krishnodas (PW-6) would be admissible in evidence u/s 6 of the Evidence Act forming part of the same transaction. It was thus proved that Rameshwar Prasad, (PW-2) had narrated the above incident immediately by taking the name of the appellant, and by his evidence it was proved that the appellant was present in the house in the fateful night. 12. Admittedly the deceased died homicidal death and the dead body of the deceased was found inside the room where the appellant and the deceased only two persons were residing. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In the instant case, as the appellant was present in the room at the time of the incident and his father had seen him with a blood stained adze in his hands, it can be held that the fact relating to homicidal death of the deceased must have been in the special knowledge of the appellant and heavy burden was cast upon the appellant to explain u/S 106 as to how the deceased died homicidal death in his room. The appellant utterly failed to discharge the burden cast upon him by Section 106 and this would be an additional link in the chain of circumstantial evidence in this case. 13. In a case based on circumstantial evidence, the circumstances must be fully established. The circumstance so established should be of conclusive nature and tendency, none of the circumstance should be capable of being explained and the chain of circumstantial evidence also must be complete. In the instant case all above circumstances were fully established by the prosecution; they were of conclusive nature and tendency; none of the circumstances were capable of being explained; and the chain of circumstantial evidence was also complete. In the instant case all above circumstances were fully established by the prosecution; they were of conclusive nature and tendency; none of the circumstances were capable of being explained; and the chain of circumstantial evidence was also complete. 14. We are of the view that the learned Sessions Judge was fully justified in resting the conviction of the appellant on the above set of circumstantial evidence. 15. For the foregoing reasons, we do not find any substance in the appeal. The appeal, therefore, is liable to be dismissed and is hereby dismissed. It is stated that the appellant is on bail. He shall be taken into custody to undergo the remaining sentence. Appeal Dismissed.