Kerala High Court
State Of Kerala vs Satheesh on 7 May, 2010
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937
CRL.A.No. 674 of 2011 ( )
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AGAINST THE JUDGMENT IN S.C.NO.1026/2005 of ADDL.SESSIONS COURT, FAST TRACK
COURT-II, THIRUVANANTHAPURAM, DATED 07-05-2010
APPELLANT(S)/APPELLANT/COMPLAINANT:
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STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE.
RESPONDENT(S)/ACCUSED 1 TO 3:
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1. SATHEESH, S/O.NATARAJAN, NADAKKARIKATHU PUTHEN VEEDU,
NELLIMOODU, KOTTUKAL DESOM,
KOTTUKAL VILLAGE. PIN - 695 501
2. SOBHANA, D/O.KUNJAMMA,
VADAKKARIKATHU PUTHEN VEEDU, NELLIMOODU,
KOTTUKAL DESOM, KOTTUKAL VILLAGE. PIN - 695 501
3. NATARAJAN, S/O. KESAVAN NADAR,
VADAKKARIKATHU PUTHEN VEEDU, NELLIMOODU,
KOTTUKAL DESOM, KOTTUKAL VILLAGE. PIN - 695 501
R1 TO R3. BY ADVS. SRI.P.VIJAYA BHANU (SR.)
SRI.VIPIN NARAYAN
SRI.V.C.SARATH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-02-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Bb
P.BHAVADASAN & RAJAVIJAYARAGHAVAN V, JJ.
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Crl.A.No.674 of 2011
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Dated this the 04thday of February, 2016
J U D G M E N T
P.BHAVADASAN, J.
The State, aggrieved by the acquittal of the accused in S.C.No.1026/2005, has approached this Court by filing this appeal.
2. The facts absolutely necessary for the disposal of this appeal are as follows:
PW3 is the daughter of Accused Nos. 2 and 3 and Accused No.1 is their son. It so happened that PW3 fell in love with the deceased and they married which was not to the liking of the family of the husband and the wife. That is not very relevant for the purpose of this appeal. However, as per the prosecution allegation, 10 cents of property was Crl.A.No.674 of 2011 : 2 : given to the daughter of accused Nos. 2 and 3 in which she put up a house and they had a son who was 8 months old at the relevant time. The deceased used to earn his livelihood by plying an auto rickshaw which, in fact, belonged to PW6, Santhosh.
3. The prosecution allegation is that, the deceased used to park the auto rickshaw in the compound of the accused persons which they did not like. On a number of occasions, objection had been taken to the said conduct of the deceased, but that went unheeded. On the date of incident too, the same thing happened and it is said that, that resulted in a quarrel between the deceased and the accused persons. Further allegation is that, using the weapons which were recovered by the investigating officer, 1st accused attacked him with a chopper and 2nd accused beat him with an iron pipe and 3rd accused with a stick and inflicted several injuries on the deceased which ultimately resulted in his death. The prosecution case is that, hearing Crl.A.No.674 of 2011 : 3 : the cries of PW3 finding her husband, injured in the courtyard of the accused persons, PWs 1 and 4 reached the place. The prosecution would allege that PW3 narrated the incident in which, her husband suffered injuries to PWs 1 and 4. PWs 3 and 4 then fetched a vehicle and removed the deceased to the hospital. However, by the time they reached the hospital, the deceased had already left this world to the heavenly abode.
4. PW1 laid Ext.P1 First Information Statement on 14.07.2002 in the early hours at 4.00 a.m. PW10 recorded the same and on that basis, registered Crime No.133/2002 for the offence punishable under Sec.302 r/w Sec.34 of the Indian Penal Code as per Ext.P8 First Information Report. He then, proceeded to the Medical College Hospital, Trivandrum and prepared Ext.P4 inquest report. Subsequently, on the same day, he went to the place of occurrence and in the presence of witnesses, prepared Ext.P5 scene mahazar. He also seized the chopper, iron Crl.A.No.674 of 2011 : 4 : pipe and the stick left at the scene of occurrence as per the scene mahazar itself. He had then sent it to the court. On 14.07.2002 at about 10.30 p.m., 1st accused and 3rd accused were arrested and produced before court on 15.07.2002. Coming to know that the second accused has been hospitalized at Neyyattinkara Taluk Head Quarters Hospital, she was kept under surveillance and she was later removed to the Medical College Hospital, Trivandrum. On 16.07.2002, she was discharged from Medical College Hospital, Trivandrum and thereafter, she was formally arrested with the aid of a woman police constable and on the same day itself, she was produced before court. He had, the place where the blood had pooled, examined by a forensic expert.
5. On 18.07.2002, PW11 took over the investigation. Since on questioning the witnesses, he got the similar statement as was furnished to PW10, he did not bother to take independent statements from those witnesses. Crl.A.No.674 of 2011 : 5 : However, additional statements have been furnished by PWs 1, 2, 4 and 5. He, anticipating that PW3 may resile from her stand, took precaution by way of having her statement recorded under Sec.164 by the Magistrate concerned. He had the materials collected during investigation sent for chemical analysis and the report so received was Ext.P11. PW11 completed investigation and laid charge before court.
6. The court before which the final report was laid, took cognizance of the offence. Finding that the offence is exclusively triable by the Court of Sessions, committed the case to Sessions Court, Trivandrum which court made over the case to Additional Sessions Court, Fast Track Court - II, Thiruvananthapuram for trial and disposal. The later court, on receipt of records and on appearance of the accused, framed charge for the offence punishable under Sec.302 r/w Sec.34 of the IPC. When the charge was read over to the accused persons, they pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 12 and Crl.A.No.674 of 2011 : 6 : had Exts. P1 to P13 marked. Exts.D1 and D2 were marked on the defence side. MOs 1 to 3 were got identified and marked. After the close of the prosecution evidence, the accused were questioned under Sec.313 of Code of Criminal Procedure. They denied the incriminating circumstances brought out in evidence and maintained that they were innocent. Finding that the accused could not be acquitted under Sec.232 of Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence.
7. It is seen that PW3, before court, had submitted that, she happened to give Ext.P3 statement under Sec.164 on compulsion by the police and the court below did not find it safe to act on her statement to PW9. Since PW3 did not support the prosecution case, she was declared hostile and confronted with statement taken under Sec.164 of Cr.P.C. The court below found that the evidence furnished by PWs 1 and 4 was insufficient in law to come to the conclusion that the accused had committed the offence. To Crl.A.No.674 of 2011 : 7 : be more precise, the court below had found that there is no evidence at all to show that the injuries which led to the death of the deceased were in fact inflicted by the accused persons and therefore, they were acquitted of all charges.
8. Assailing the acquittal, the learned Public Prosecutor contended that the court below has not adverted to principles of law and had not appreciated the evidence in the proper manner. The learned Pubic Prosecutor went on to point out that the evidence of PWs 1 and 4 falls within the realm of res gestae and if that be so, since PW3 has admitted giving of Ext.P3 statement, that corroborates the evidence of PWs 1 and 4 and that would be sufficient in law to hold the accused guilty. Further, it is pointed out that Ext.P12 would show that there was some unpleasant incident in the house. Therefore, it cannot be said that the prosecution had not established the case. The court below was not justified in merely holding that since PW3 had stated that Ext.P3 was given under compulsion, it cannot be Crl.A.No.674 of 2011 : 8 : relied on to conclude the complicity of the accused. It is not so. There are other materials and it could not be said on the evidence that PW3 had given Ext.P3 on compulsion.
9. The learned Public Prosecutor highlighted before us the bizarre nature of the incident and pointed out that proper appreciation ought to have been made by lower court.
10. The learned Senior counsel appearing for the accused, on the other hand, contended that the court below has considered all items of evidence in the proper perspective and found that the available evidence is totally insufficient to come to the conclusion that the offence has been committed by the accused persons. The learned Senior counsel cautioned this Court that this Court is exercising an appellate jurisdiction from an order of acquittal and the scope of interference is rather limited. The learned Senior counsel appearing for the accused persons Crl.A.No.674 of 2011 : 9 : pointed out that, when an appeal is filed against an order of acquittal, the accused are entitled to two presumptions; they are; i). The accused are deemed to be innocent unless proved guilty ii). They had already obtained an order of acquittal from the trial court.
11. Unless this Court finds that the appreciation of evidence is so perverse that no reasonable man would come to such a conclusion, it may not be proper for this Court to interfere with the order of acquittal. The learned Senior counsel appearing for the accused has pointed out that, it could not be said that the view taken by the court below is perverse. Probably a different view may be possible, but, that is not a ground to interfere with the order of acquittal. In short, the contention is that, there are no grounds made out to interfere with the order of acquittal in this appeal.
12. The prosecution case itself is that, annoyed by the parking of the auto rickshaw by the deceased in the Crl.A.No.674 of 2011 : 10 : compound of the accused, they cautioned the deceased not to do so. In spite of the same, on the day of incident too, this act was repeated by the deceased. The prosecution allegation is that, infuriated by the disobedience of the deceased, the accused mounted an attack on him causing injuries to which he succumbed later on.
13. In order to prove the incident, the prosecution relied on the evidence of PWs 1, 3 and 4.
14. Before going into the question of acceptability of the evidence and the sufficiency of the evidence, one aspect may be noticed, that is, the cause of death of the deceased.
15. There is not much dispute with regard to this aspect. That the deceased was lying in a pool of blood in the courtyard of the house of accused Nos. 1 to 3 is not in dispute. Though he was transported to the hospital, by the time they reached the hospital, he had breathed his last and Crl.A.No.674 of 2011 : 11 : he was pronounced dead by the Doctor who attended him.
16. PW10 had conducted the inquest over the body of the deceased and had prepared Ext.P4 inquest report. That shows the injury on the body of the deceased. PW8 conducted autopsy and prepared Ext.P6 autopsy certificate. He also had the samples collected during the postmortem sent for chemical analysis and obtained Ext.P7 report.
17. It is necessary to refer to Ext.P6 to solve the issue of the reason for the death. Ext.P6, the ante-mortem injuries are narrated as follows:
Injuries (Ante Mortem) "1. Incised penetrating wound 9.5x2x0.5 cm, coronally placed on the right side of back of head, its outer end being 3 cm above and 2.5 cm behind the top of ear.
The whole thickness of parietal bone underneath showed a clean cut 7x0.2 cm.
2. Incised penetrating wound 8x1x0.5 cm sagittally placed on the right side of top of head, its front end being, 7 cm above the outer end of eyebrow and the back end joining injury No.1 at a point 1 cm outer to its inner end. The whole Crl.A.No.674 of 2011 : 12 : thickness of parietal bone underneath showed a clean cut 7.5x0.2 cm with a corresponding clean cut in dura and superficial laceration on the top of right parietal lobe of brain over an area 5x2 cm with localised subdural and subarachnoid bleeding around it.
3. Incised wound 3x0.5x0.4 cm obliquely placed on the left side of back of head with its lower inner end 4 cm outer to occiput.
4. Incised wound 3.5x1x0.5 cm obliquely placed on the left side of top of head with its inner front end 8 cm above the middle of left eyebrow. Brain was pale with flattening of gyri and narrowing of sulci.
5. Incised wound 5.5x2x1 cm obliquely placed on the left side of back of chest, with its upper inner end 8.5 cm to left of midline and 17 cm below the top of shoulder. Its lower outer end was blunt.
6. Incised punctured wound 5.5x2x6 cm obliquely placed on the right side of back of trunk, its lower inner sharply cut end being 3 cm to right of midline and 21 cm above natal cleft. Its upper outer end was blunt.
7. Incised punctured wound 6x1x7 cm obliquely placed on the front of left thigh, its lower outer blunt end being just above knee. The tendon of quardriceps was found cleanly cut and the wound was directed downwards entering the joint cavity behind the patella.
8. Incised wound 6x3x2.5 cm obliquely placed on the outer aspect of left leg with its upper front end 12 cm below knee. The muscles underneath were cleanly cut with a clean cut 2x0.2x0.2 cm on fibula.
9. Two incised wounds 3.5x1.5x0.5 cm and 5x2.5x2 cm one outer to the other in a horizontal line and separated by a skin tag 0.3 cm broad, on the outer aspect of left leg 13 cm above ankle. The latter one cut the fibula for a depth of 0.5 cm.
10. Incised wound 10x8x8 cm horizontal on the back of left thigh 2 cm above knee. Underneath the muscles, nerves, femoral artery and femur were found cut Crl.A.No.674 of 2011 : 13 : and separated.
11. Incised wound 2x0.2x0.2 cm and 1x0.2x0.2 cm, 0.5 cm apart side by side, vertical on the outer aspect of left arm 13 cm below the top of shoulder.
12. Two contusions 3.5x0.5x0.3 cm, and 5x0.5x0.3 cm with a pallor 0.9 cm broad in between, parallel to each other obliquely placed on the back of right hand towards its inner aspect with its lower inner end 3 cm above the root of little finger with a contusion 4x3x0.5 cm just above it.
13. Two contusion 5.5x0.5x0.3 cm and 6x0.5x0.3 cm, with a pallor 0.5 cm broad in between, oblique and parallel to each other on the back of right thigh, its lower outer end 6 cm above knee.
14. Abrasion 2x0.5 cm obliquely placed on the right side of back of chest; its upper inner end 2 cm outer to midline and 2 cm below root of neck.
15. Abrasion 2x1 cm on the back of left shoulder.
16. Multiple small abrasions over an area 4x2 cm on the inner aspect of right knee."
18. A perusal of the ante-mortem injuries shows that there are as many as 11 incised wounds, two of which are on the back side of the head.
19. Autopsy was conducted by PW8. The evidence of the Doctor is to the effect that the death was caused due to the multiple injuries suffered by the victim. She also Crl.A.No.674 of 2011 : 14 : deposed that the chemical analysis report of the viscera reveal that the deceased had consumed alcohol. Further, the Doctor also stated that injury Nos.1 to 11 could be caused with MO1 chopper and injury Nos.12 and 13 could be caused by beating with the pipe.
20. On going through the inquest report, the postmortem certificate and the evidence of PWs 8 and 10 reveal that there is no doubt that the death of Manoj was caused due to the injuries suffered by him and it is a clear case of homicide.
21. Coming back to the question as to who had inflicted injuries which resulted in the death of Manoj, the evidence as already stated consists of the testimony of PWs 1 and 4 and PW3 among whom PWs 1 and 4 are the parents of the deceased while PW3 is the daughter of the accused Nos.2 and 3.
Crl.A.No.674 of 2011 : 15 :
22. The contention taken before this Court is that, the fact that when hearing the wail let out by PW3, PWs 1 and 4 rushed to the place of incident, PW3 told them what had happened and informed them about the injuries inflicted by the accused Nos.1 to 3. That, according to the learned Public Prosecutor, falls within the ambit of Sec.6 and it qualifies as res gestae evidence. Further contention taken is that, Ext.P3 is admitted by PW3, but claiming that it was given under compulsion, for which, there is no evidence. The evidence of PW9, the learned Magistrate who had recorded the statement so furnished by PW3 would clearly show that all the formalities required for taking a statement under Sec.164 have been followed and there is no infirmity in that regard. If that be so, according to the learned Public Prosecutor, that is a corroborative piece of evidence supporting the res gestae evidence given by PWs 1 and 4 and that would be sufficient in law to mulct liability on the accused persons.
Crl.A.No.674 of 2011 : 16 :
23. There is considerable controversy regarding the reason for the incident. While PWs 1 and 4 would say that there used to be quarrels often between the deceased and the accused regarding the parking of the auto rickshaw, which was taken on hire by the deceased, in the compound of the accused, PW3 would deny the same. She would say that the auto rickshaw was always parked in their compound. Unfortunately, the scene plan is of little help in this regard. What is significant is the testimony of PW6, the owner of the auto rickshaw on whose evidence, the prosecution placed considerable reliance. The evidence of PW6 is to the effect that, on the date of incident also, auto rickshaw was parked in the compound of the accused persons. What is noteworthy is that, PW6 had also gone along with the deceased to park the auto rickshaw. When he found that, it was not to the liking of the accused persons, he assured them that the auto rickshaw would not be parked in that compound in future.
Crl.A.No.674 of 2011 : 17 :
24. With this evidence on record, it becomes difficult to accept the version given by the prosecution that it was the parking of the auto rickshaw on the date of incident which was in issue.
25. Again, the scene plan shows two close neighbours residing near the house of the accused. None of them was sought to be examined to prove that the auto rickshaw could not be parked anywhere other than the compound of accused Nos.1 to 3. One would have expected the prosecution to examine some witnesses in this regard.
26. The evidence of PWs 1 and 4 is to the effect that, hearing the cries of PW3, when they reached the place of incident, they found their son lying in the pool of blood. They claimed that PW3 narrated the entire incident to them. The question is whether even assuming it to be true, principle of res gestae is attracted. It is well settled that the principle of res gestae is an exception to hearsay rule. Crl.A.No.674 of 2011 : 18 : However, the Section is circumscribed by certain circumstances. A similar issue was considered in the decision reported in Krishnankutty v. State of Kerala [1994 (2) KLT SN C.No.47, Page No.35] wherein it was held as follows:
"According to S.6 of the Evidence Act, 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. So, the fact that is sought to be relied under this Section should be those which form part of the same transaction. That fact which forms part of the same transaction can be termed 'res gestae', even if it takes place shortly after the transaction. The statement is relevant only if it is that of a person who has seen the actual occurrence and who uttered it simultaneously with the incident. Here in this case, the transaction with which we are concerned is the murder of Shobhana. That transaction was not seen by anyone. Immediately after that transaction, PW-2 went to the room where, according to the prosecution, accused and Shobhana were sleeping. Then Shobhana was seen lying dead. Thereafter PW-2 went to the house of PW-1 and narrated the incident. That narration can by no stretch of imagination be taken as to form part of the main transaction, namely the murder of Shobhana. Therefore, the story told by PW-2 to PW-1 can only be a narration of the incident and the information that was gathered by PW-1 can be hearsay. The information based on that hearsay narrated by PW-1 is not to be acted upon, because he was passing on only the hearsay information he got from PW-2. The said narrative given by PW-1 is not admissible under S.6 of the Evidence Act as res gestae."
27. The principle enunciated by the Section is that a Crl.A.No.674 of 2011 : 19 : fact which is not in issue is so connected with a fact in issue so that it forms a part of the same transaction and therefore becomes admissible in evidence. The question depend upon the proximity of time and the continuity of purpose. The issue was considered elaborately in the decision reported in Rijo v. State of Kerala [2010 CRI.L.J.1315] wherein it was held as follows:
"48. Section 6 of the Indian Evidence Act reads as follows:
"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."
49. The essential feature is that if a fact, which is not in issue, but which is connected to the fact in issue as to form part of the same transaction, it is admissible. As per the above provision, it has been held that the statements by an injured witness to those who come immediately to the place, regarding the incident are admissible in evidence. The principle is known as res gestae.
50. In the decision reported in Sukhar v. State of Uttar Pradesh (AIR 1999 SC 3883): (2000 Cri LJ 29), it was held as follows:
"Sarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus:
"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act.Crl.A.No.674 of 2011 : 20 :
Moreover, the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and by-standers. In conspiracy, riot & c. the declarations of all concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."
This court in Gentela Vijayavardhan Rao v. State of A.P. (AIR 1996 SC 2791): (1996 Cri LJ 4151) considering the law embodied in Section 6 of the Evidence Act held thus (Paras 8, 9) "The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" speaking, in exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae."
In another recent judgment of this Court in Rattan Singh v. State of H.P. (AIR 1997 SC 768): (1997 Cri LJ Crl.A.No.674 of 2011 : 21 :
833), this court examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and held thus:
"..........The aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration 'A' to Section 6 makes it clear. It reads thus:
(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.
Here the act of the assailant intruding into the courtyard during death of the night, victim's identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and place that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act."
Applying the ratio of the aforesaid two cases to the evidence of P.W.2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew was fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms. Goswami, learned counsel appearing for the appellant."
51. In the decision reported in Javed Alam v. State of Chhattisgarh ((2009) 6 SCC 450), it was held as follows:
"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 Gentela Vijayavardhan Rao v. State of A.P., (AIR 1996 SC 2791): (1996 Cri LJ 4151) it was held in para 15 as follows:
Section 6 of the Evidence Act and some of the Crl.A.No.674 of 2011 : 22 : 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 party 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."
28. The principles were also reiterated by the Apex Court in the decision reported in State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari and Ors. [AIR 2013 SC 1441], wherein it was held as follows:
28. xxxxxxxx xxxxxxx xxxxxxx xxxxxxxxxx "Reliance was also placed on decision rendered in Gentela Vijaya Vardhan Rao v. State of A.P., 1996 (6) SCC 241 : (AIR 1996 SC 2791), wherein this Court held, that the principle of law embodied in Section 6 of the Evidence Act, is expressed as "res gestae". The rule of "res gestae", it was held, is an exception to the general rule, that hearsay evidence is not admissible. The rationale of making certain statements or facts admissible under Section 6 of Crl.A.No.674 of 2011 : 23 : the Evidence Act, it was pointed out, was on account of spontaneity and immediacy of such statement or fact, in relation to the "fact in issue". And thereafter, such facts or statements are treated as a part of the same transaction.
In other words, to be relevant under Section 6 of the Evidence Act, such statement must have been made contemporaneously with the fact in issue, or at least immediately thereupon, and in conjunction therewith. If there is an interval between the fact in issue, and the fact sought to be proved, then such statement cannot be described as falling in the "res gestae" concept. Reliance from the aforesaid judgment was placed on the following observations:
"15. The principle or law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognized in English Law. The essence of the doctrine is that fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction"
becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman, (1896) 2 Q.B. 167 a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent upto which this rule of res gestae can be allowed as an exemption to the inhibition against near say evidence, has observed in Teper v. R. (1952) 2 All ER 447, thus:
"The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so Crl.A.No.674 of 2011 : 24 : interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement."
The correct legal position stated above needs no further elucidation."
29. After having thus understood the law relating to res gestae, an attempt shall now be made to see whether the so called narration of incident by PW3 and PWs 1 and 4 fall within the ambit of the said principle.
30. One of the essential ingredients to constitute res gestae is proximity in point of time of conveying of information and continuity of the activity. Except for some little evidence furnished by PWs 1 and 4 that they are residing nearby, there is no acceptable evidence to show how far they were residing from the residence of accused Nos. 1 to 3 where the incident is alleged to have taken place. It is also significant to notice at this point of time Crl.A.No.674 of 2011 : 25 : that PWs 1 and 4 would say that they came to the place of incident hearing the cries of PW3. It is surprising to note that her cries did not attract the neighbours. The question as to how long after the incident PWs 1 and 4 reached the place of occurrence, is a matter to be proved by the prosecution. The close proximity is a factor which may indicate that there was no chance for embellishment or development which is the sine qua non for applying the principle of res gestae. If that be so, prosecution is bound to show that PWs 1 and 4 reached the place of occurrence soon after the incident. The scene plan again is no help, as already stated, for the simple reason that the residence of PWs 1 and 4 are not shown in the plan. There is no other independent evidence to show that they are residing nearby. Unless it is shown that PWs 1 and 4 reached the place of occurrence immediately after the incident had taken place, the principle of res gestae cannot be applied.
31. Though it may look cruel, there is want of Crl.A.No.674 of 2011 : 26 : evidence to show that at the time of infliction of injuries, PW3 herself was present at the spot or whether she came later. Whatever that be, in the light of the decisions cited above and in the light of principles enunciated by various authors, it becomes difficult for this Court to accept the theory of res gestae put forward by the learned Public Prosecutor to accept the evidence of PWs 1 and 4 in that regard.
32. Left with only Ext.P3, the learned Public Prosecutor contended that, that is sufficient to fasten liability on the accused. Unfortunately, for the learned Public Prosecutor, that is not the law. It is well settled that the statement under Sec.164 can be used only to contradict or corroborate the evidence furnished by the author of the statement. By doing so, that does not transform into a substantive evidence. Authority if any required is furnished by the decision reported in Ram Charan and others v. The State of U.P. [AIR 1968 SC 1270] wherein it was Crl.A.No.674 of 2011 : 27 : held as follows:
"(10). These observations were dissented from by the Andhra Pradesh High Court in re Gopisetti Chinna Venkata Subbiah, ILR (1955) Andhra 633 at p.638= (AIR 1955 Andhra 161 at pp.163-164) and Subba Rao, C.J., preferred the following observations of the Nagpur High Court in Parmanand v. Emperor, AIR 1940 Nag 340.
"We are of the opinion that if a statement of a witness is previously recorded under Section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under Section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon."
33. In fact, this aspect is dealt within some detail by Sohoni's Code of Criminal Procedure, 20th Edition, Volume 2 at page No.1860 which reads as follows:
"The statements can be used to cross-examine the person who made the statement.
The statements under this section are not made in the presence of the accused, and there is no right or opportunity of cross-examining the witnesses at that stage. The statements can, therefore, be used only for a very limited purpose: either to impeach his credit, if he makes a different statement subsequently, or to corroborate, if he makes a similar statement. Where such a statement is used for the Crl.A.No.674 of 2011 : 28 : purposes of corroboration, it only strengthens the value of the statement made in court. If, on the other hand, it is used for impeaching the credit of a witness, it discredits his testimony, but it cannot be substituted for the statement which the witness makes in court. The word 'corroboration' by itself denotes that a statement to that effect exists on the record of the case. Where no such statement exists on the record of the case, a statement which is different to that statement cannot be said to corroborate the statement made in court. When used for purposes of contradiction, they merely destroy the credit of the witness, which is not a way of proving that what the witness says is true. It only negatives the evidence of the witness as given in court. It may show that the evidence of the witness is false, but that does not establish the fact that what he stated out of court under this section is true."
34. Even if we assume that disowning of statement by PW3 before PW9, i.e. Ext.P3 is not accepted, that may not help the prosecution much. It can at best constitute as a corroborative evidence or it may at best show that what PW3 says before court is not true and that she is not a reliable witness. But, that does not advance the case of the prosecution much. Left with only PW3 and Ext.P3, it may not be possible for this Court to hold that, that is sufficient in law come to the conclusion that offence has been committed by accused Nos.1 to 3.
35. If these items of evidence are eschewed, there is Crl.A.No.674 of 2011 : 29 : no other evidence to hold that the injuries which are attributed to the death of Manoj were in fact inflicted by the accused persons. In spite of our best efforts, we are unable to find any possible alternative finding in this regard.
We find no reason to interfere with the finding of the court below. The appeal is without merits. Accordingly, this appeal is dismissed. The bail bond, if any, executed by the accused, shall stand cancelled unless wanted in any other case.
Sd/-
P.BHAVADASAN, JUDGE.
Sd/-
RAJA VIJAYARAGHAVAN V, JUDGE.
Bb [True copy] P.A to Judge