Madhya Pradesh High Court
Kirtan Prasad vs State Of Madhya Pradesh on 24 September, 2003
Equivalent citations: 2005CRILJ69
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT S.L. Jain, J.
1. Appellant Kirtan Prasad stands convicted for offence punishable under Section 302, IPC with sentence of imprisonment for life vide impugned judgment dated November 30, 1989 passed by Sessions Judge, Mandla, in Sessions Trial No. 29/88.
2. The prosecution case, in brief, is that deceased Parvat .Singh was the maternal uncle of appellant Kirtan, Mole Singh (PW- 2), Adhar Singh (PW-10), Mukesh Kumar (PW-11) are his father, uncle and cousin respectively, whereas, Junki Bai (PW-3) is his another cousin (Mouseri Bahin).
3. On 17-6-88 at about 6 pm at village Barapani, deceased Parvat Singh, Jani Bai (PW-3) and Mole Singh (PW-2) were sitting in the courtyard of Mole Singh and were chitchatting on family matters. Deceased Parvat Singh as per his habit was speaking in loud voice. Appellant Kirtan Prasad felt that the deceased is quarrelling with his father Mole Singh, therefore, he brought an axe from the inner side of the house and dealt an axe blow on his neck. The deceased Parvat. Singh who was sitting in a chair, fell on the ground. On hearing the sound of fall of chair, Adhar Singh (PW-10) and Mukesh (PW-11) also reached the place of occurrence. Appellant tried to deal another blow on the deceased but his father Mole Singh with the help of his brother Adhar Singh (PW-10) and Mukesh (PW-11.) caught hold of the appellant and snatched the axe from him and tied him with a rope.
4. Mole Singh called Dheera Kotwar and informed him about the incident. Dheera Kotwar (PW-1) lodged the FIR, Ex. P-2 at Police Station, Mohgaon District Mandla, on 18-6-88 at 11.35 a.m. A marg was also registered. S.I., S.L. Surja reached the spot. On his arrival, the appellant, who was tied with the rope was set free. A lungi which the appellant was wearing at that time was seized from his person vide Ex.P-9. Plain earth and blood-stained earth was recovered from the spot as per Ex.P-10 and Ex.P-11 respectively. A blood-stained axe which was lying at the spot was seized vide Ex.P-4.
5. Inquest, Ex.P-8 was conducted on the body of Parvat Singh. The dead body was sent for post mortem examination. The autopsy was performed by Dr. R. K. Sharma (PW-4) on 19-6-88 at 11 a.m. who found the following injuries on the body of Parvat Singh:
(1) Incised wound 4¥i" x 1" x bone deep on right occipital region of the skull, occipital bone fractured in pieces at lower end, wound then cutting neck muscles and blood vessels on right side neck up to the cervical vertebra and trachea, blood collection in the neck and the thorasic cavity.
(2) Contusion 1" x 1" at tip of the nose, clotted blood from nostrils.
Dr. Sharma opined that injury No. (1) was caused by hard and sharp object within three hours from the time of death and injury No. (2) was caused by hard and blunt object. Dr. Sharma further opined that the injury No. (1) was homicidal in nature and was sufficient to cause death in the ordinary course of nature. According to the Post Mortem Report, Ex. P-6, the cause of death was syncope as a result of anaemia due to excessive haemorrhage from the wound on neck.
6. A dhoti, a bandi and a gamchha were recovered from the body of the deceased by Dr. R. K. Sharma (PW- 4). These articles were sent to the police station in a sealed packet. Seized gamchha, axe, lungi, dhoti and bandi were sent to Director, Forensic Science Laboratory, Sagar, for chemical examination. After chemical examination, blood was found on stained earth, axe, dhoti and bandi. These articles were then sent to Serologist and Chemical Examiner of the Government of India, for determination of origin of blood. Assistant Serologist reported that dhoti and bandi, recovered from the body of the deceased were stained with human blood. The origin of the blood on stained earth and axe could not be determined as the stains were! disintegrated. The blood group on any of the items could not be determined either because of disintegration or because of the insufficient quantity.
7. On completion of the investigation a charge sheet was filed against the appellant for the alleged commission of murder of Parvat Singh.
8. After committal of the case to the Court of Session, a charge for offence punishable under Section 302, IPC was framed by Sessions Judge, Mandla against the appellant; He abjured the guilt and pleaded that he is innocent. He further pleaded that he has been falsely implicated because of the jealousy as he was a brilliant student.
9. After concluding the trial, the learned Sessions Judge found the appellant guilty for offence punishable under Section 302, IPC and as such convicted and sentenced him as indicated above. It is against this conviction and sentence that the appellant has come up in this appeal.
10. We have heard Smt. Archana Nagaria, learned counsel, appearing for the appellant and Shri S. K. Ravi, learned counsel for the State/respondent.
11. Smt. Nagaria, led us through the record and contended that the learned trial Judge erred in holding the appellant guilty of committing murder of Parvat Singh. She submitted that conviction and sentence of appellant are bad, improper and illegal. According to her, in fact, there is no legal evidence against the appellant and he has been convicted only on the basis of suspicion caused by the evidence available on record.
12. Per contra, Shri S. K. Rai, learned State counsel supported the judgment of the trial Court.
13. We shall first consider whether the death of Parvat Singh was homicidal. Dr. R. K. Sharma (PW-4) who conducted postmortem examination on the body of the deceased, Parvat Singh, found two injuries described hereinabove. He also opined that the injury on right occipital region was sufficient to cause death in the ordinary course of nature. He further opined that the death of Parvat Singh was homicidal. Learned counsel, appearing for the appellant has also not very seriously disputed the finding of the trial Court that the deceased died a homicidal death, therefore, we affirm the finding of the trial Court on this count.
14. Now, we come to the crucial question as to whether the appellant caused death of Parvat Singh. In this connection, the prosecution has relied on the occular statements of eye-witnesses, namely, Mole Singh (PW-2) and Janki Bai (PW-3) and on the evidence of Adhar Singh (PW-10) and Mukesh (PW-11), who were present in the house at the time of incident and reached the spot immediately after the incident.
15. Mole Singh (PW-2) has stated that at the relevant time, he was sitting in his court- yard along with Janki Bai and Singora Bai. Deceased Parvat Singh was also sitting with them. The appellant with his mouth open, protruded tongue and dilated eyes reached the spot. He was at that time armed with some weapon like axe or stick which he (witness) could not see properly. Previously also the appellant used to behave like a mad map, therefore, he felt that the appellant is under the effect of insanity. He caught hold of the appellant but the appellant pushed him and tried to run away. The witness has also stated that on hearing the cries of Janki Bai (PW-3), two persons, namely, Adhar Singh (PW-10) and Mukesh (PW-11) rushed to the spot. With the help of Adhar Singh and Mukesh, he caught hold of the appellant and tied him with a pillar by means of a rope. After tying the appellant he saw Parvat Singh lying dead though he could not say how Parvat Singh died and who killed him. However, the witness expressed a firm belief that the accused must have killed him.
16. Mole Singh has specifically stated that he does not know if the appellant Kirtan Prasad assaulted the deceased Parvat Singh with an axe. This witness was declared hostile and was cross-examined by the Public Prosecutor extensively but nothing could come out from his statement to establish that he saw the appellant assaulting Parvat Singh with an axe.
17. Sammo Bai (PW-6), Adhar Singh (PW10) and Mukesh (PW-11) are the witnesses who, according to the prosecution, reached the spot immediately after the incident. Sammo Bai (PW-6) has stated that on hearing the commotion she reached the spot. She found her husband lying dead in the court- yard of Mole Singh. She saw an injury on the neck, of her husband. Certain persons were tying the appellant with a rope. On enquiry, Mole Singh and Adhar Singh told her that appellant Kirtan Prasad has killed her husband Parvat Singh with an axe. However, she did not find the axe at the place of occurrence.
18. Adhar Singh (PW-10) has stated that at the time of incident when he was brushing his teeth he heard Mole Singh shouting "what have you done", which he was asking to his son Kirtan Prasad. He reached the spot and found that Mole Singh was holding Kirtan Prasad and who was trying to run away. He and Mukesh helped Mole Singh in tying the appellant.
19. Mukesh Kumar (PW-11) has also stated that he was going towards the well to fetch water. On hearing the commotion he rushed to the spot and saw that his father was trying to tie the appellant with a rope, who was trying to escape. He helped Mole Singh and Adhar Singh in trying the appellant.
20. Adhar Singh (PW-10) and Mukesh (PW-11) have stated that Mole Singh told them that it was the appellant who assaulted the deceased Parvat Singh with an axe and caused his death.
21. The learned Sessions Judge, on the basis of evidence of Mole Singh (PW-2), Janki Bai (PW-3), Adhar Singh (PW-10) and Mukesh (PW-11) concluded that it was the appellant who assaulted the deceased Parvat Singh with an axe. His finding is based on the reasoning that Mukesh Kumar and Adhar Singh have unequivocally stated that Mole Singh told them that it was the appellant who assaulted Parvat Singh but Mole Singh has not stated in his evidence that he saw the appellant causing injury to the deceased nor has he stated that it was he who informed Adhar Singh and Mukesh Kumar regarding the fact of causing injury to deceased by the appellant.
22. When Mole Singh himself does not say that he informed Adhar Singh and Mukesh about the incident, it was improper on the part of the learned Sessions Judge to convict the appellant only on the ground that Adhar Singh and Mukesh have stated that Mole Singh told them that it was the appellant who caused death of Parvat Singh.
23. Section 60 of Evidence Act requires that the oral evidence must, in all cases whatsoever, be direct. Where the testimony of the witness is entirely hearsay and on some matters hearsay of hearsay, it cannot be admitted in evidence. Where a witness gives evidence that he received information from other person and that person does not say about it, such evidence would be inadmissible being hearsay evidence.
24. Where Adhar Singh (PW-10) and Mukesh (PW-11) have stated that Mole Singh (PW-2) told them that it was the appellant who caused death of Parvat Singh and they gave evidence of having received the information from Mole Singh but Mole Singh himself does not say that he made such a statement to these witnesses the evidence of Adhar Singh (PW-10) and Mukesh (PW-11) is inadmissible and, therefore, becomes valueless. Adhar Singh (PW-10) and Mukesh (PW-11) simply say that they heard from Mole Singh (PW-2) that the appellant, had assaulted the deceased. The evidence of these witnesses cannot be used by the prosecution to any appreciable extent.
25. Learned counsel for the State submitted that Mole Singh (PW-2) made the statement contemporaneously or immediately that the act which construed offence has been committed by the appellant, therefore, the same is admissible under Section 6 of the Evidence Act.
26. The contention is not acceptable. True it is that the rule embedded in Section 6 of the Evidence Act is roughly speaking an exception to a general rule that the hearsay evidence is not admissible and the rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and the immediacy of such statement or fact in relation to the fact in issue but when Adhar Singh and Mukesh have stated that they were told by Mole Singh that the appellant caused the death of Parvat Singh, but Mole Singh does not support the prosecution case, the statement made by Adhar Singh and Mukesh who claim to have come to know from Mole Singh is inadmissible and is not covered by Section 6 of the Evidence Act.
27. If Mole Singh would have supported the prosecution case, the evidence of Adhar Singh and Mukesh would have been admissible under Section 157 of the Evidence Act, but where Mole Singh himself does not say that he saw the appellant causing injury to the deceased Parvat Singh and he told Adhar Singh and Mukesh regarding the same, the evidence of Adhar Singh and Mukesh is of no value, the same being hearsay evidence.
28. Even if we accept for the sake of argument that Mole Singh informed Adhar Singh and Mukesh that appellant dealt axe blows on deceased, it cannot be ruled out that he conveyed so either because he himself was informed by somebody else, or because under the existing circumstances he gathered an impression that appellant might have caused the axe blow on the deceased. There is no material to suggest that Mole Singh saw the appellant assaulting the deceased.
29. Learned counsel for the State/respondent next contended that from the evidence of Adhar Singh it is clear that he heard Mole Singh shouting "what have you done", which he was asking to his son, the appellant. This fact is also based on surmise because Adhar Singh was not present a the spot at the time of assault. Accepting that Mole Singh asked his son, the appellant, as to what has he done, it cannot be presumed that he meant causing the death of Parvat Singh. This version of Adhar Singh cannot be believed because the same does not find place in his statement recorded under Section 161, Cr.P.C. Secondly, Mole Singh himself does not say that he shouted like that. Jhanki Bai (PW-3) and Mukesh (PW-11) also do not say that Mole Singh shouted in so many words. Accepting that Mole Singh shouted like that, it. cannot be inferred that by the words he meant killing of Parvat Singh by the appellant. Mole Singh has clearly stated that he tried to tie the appellant who was trying to escape and in that context he might have asked what has he done. It cannot also be ruled out that when the appellant was seen by him with mouth wide open, tongue protrusted and eyes dialated, he might have asked as to what has he done.
80. Learned counsel for the State further contended that appellant was tied by his father just at the moment when deceased Parwat Singh was wounded and fell down from the chair therefore, the only inference that can be drawn is that the appellant has caused injuries to the deceased and only for that reason he was tied by his father.
31. This contention cannot be accepted for two reasons; firstly because there was no evidence to the effect that appellant was tried by his father just at the moment when deceased was wounded and fell from the chair. Mole Singh (PW-1) and Janki Bai (PW- 3) do not say that appellant was tied after the fall of deceased Parvat Singh due to the injuries sustained by him and secondly because there could be another reason for tying the appellant by his father. As has been stated in the preceeding paragraphs, appellant came to the spot with mouth open, tongue protruded and eyes dilated. Previously also, appellant used to behave like a mad man and, therefore, Mole Singh felt that he was under the effect of insanity. Mole Singh caught hold of the appellant but appellant pushed him. This appears to be more probable cause of tying the appellant and the contention cannot be accepted that the appellant was tied only because of the reason that he caused injuries to the deceased.
32. The evidence of Sammo Bai (PW-6) also does not help the prosecution. She has stated that on enquiry, Mole Singh and Adhar Singh told her that appellant Kirtan Prasad has killed her husband but Mole Singh and Adhar Singh do not say that it was the appellant who killed Parvat Singh and do not support the prosecution case. The evidence of Sammo Bai (PW-6) is not sufficient for fastening the appellant in the alleged offence.
33. Thus, there is no evidence to connect the appellant with the death of Parvat Singh. The learned Sessions Judge convicted the appellant on the basis of inadmissible evidence only on suspicion but suspicion however strong cannot take the place of proof. The conviciton cannot be based on suspicion nor on the conscious of the Court being morally satisfied about the complicity of an accused. Even if the evidence and circumstances conceivably give rise to the suspicion that the appellant was involved in the incident, the same should not be allowed to form the basis of conviction. The Court has to be watchful to avoid the danger of allowing the suspicion to take the place of legal proof, for some time unconsciously it may happen to be a rise of step between moral certainty and legal proof. (See Bhugdomal Gangaram v. The State of Gujarat, AIR 1983 SC 906 and Jaharlal Das v. State of Orisssa, AIR 1981 SC 1388). The present one can be a case of 'may be true' but there is a long distance between 'may be true' and 'must be true ' and the same divides conjectures from sure conclusion. The least that can be said to this case is that, at least there is reasonable doubt about the guilt of the appellant and the benefit of the same should go to him. The evidence in the case falls short of establishing beyond reasonable doubt that the offence of which the appellant has been charged was committed by him.
34. Aforesaid being the position regarding material brought on record by the prosecution to bring home the guilt of the appellant, we find substance in the connection raised by learned counsel for the appellant. The view of the Sessions Judge cannot be countenanced in this appeal.
35. In the result, the appeal is allowed. The conviction and sentence awarded by the trial Court, to the appellant for offence punishable under Section 302, IPC are set aside and appellant. Kirtan Prasad stands acquitted. The appellant is on bail. His bail bonds are discharged.