Oral Judgment: (P.N. Deshmukh, J.)
1. This criminal appeal takes exception to the judgment dated 3/12/2012 passed by the learned Additional Sessions Judge, Washim in Sessions Trial Case No.62/2011 thereby convicting appellant/accused for the offences punishable under Sections 498-A and 302 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs.1000/-, and in default, to suffer simple imprisonment for three months for the offence punishable under Section 498-A of Indian Penal Code and to undergo life imprisonment and to pay fine of Rs.5000/- and in default, to suffer simple imprisonment for six months for the offence punishable under Section 302 of Indian Penal Code.
2. Briefly, it is the case of prosecution that accused was married to deceased Manda about 28 years prior to incident and they were having two sons, namely, Nitin and Akshay and daughter P.W.4 Manisha. At the time of incident, accused was working as Canal Inspector while his daughter P.W.4 Manisha was serving as Lady Police Constable. P.W.1 Eknath is brother of deceased Manda. It is the case of prosecution that on 6/2/2011 P.W.1 Eknath had invited accused and his family members for lunch. P.W.2 Bhaskar was one of the invitees and had accordingly reached the house of P.W.1 Eknath. On seeing Bhaskar, accused indulged into quarrel saying as to how and why he was there. When deceased Manda tried to convince, accused gave 2-3 slaps to her saying that she was having illicit relations with Bhaskar. After having meals, in the evening at about 5.30 o'clock, accused along with wife Manda and son Akshay, aged about 12 years, proceeded back on motor-cycle. However, on the way, accused stopped his vehicle near the hutment area situated in front of Police residential quarters at Washim and beat Manda mercilessly and instead of going home, accused along with Manda and Akshay went to his field situated at Raja-Kinhi Shiwar. It is the further case of prosecution that on the following day, i.e. on 7/2/2011 at about 7 a.m. accused telephonically informed P.W.1 Eknath that while they were proceeding on motor-cycle, they met with an accident in which Manda died on receiving severe injuries. On receiving information as such, P.W.1 Eknath rushed to the house of accused and noted Manda to have suffered multiple injuries on her person, which raised doubt in his mind and, therefore, by taking Akshay, minor son of accused and deceased Manda into confidence, asked him about the incident, upon which Akshay disclosed that accused killed his mother Manda by smashing her head with stone. P.W.4 Manisha, daughter of accused and deceased Manda, when enquired Akshay about the incident, he narrated said facts also to her. Accordingly, P.W.1 Eknath lodged report (Exh. 23) on 7/2/2011 at 8.40 a.m., on the basis of which, offences punishable under Sections 498-A and 302 of Indian Penal Code came to be registered vide Crime No.47/11, which was investigated by P.W.12 Shegokar, P.S.I.
3. During the course of investigation, inquest panchanama upon the dead body of Manda was drawn vide Exh. 42 in the presence of panchas. Akshay took the Investigating Officer to the spot wherefrom 15-16 blood stained stones of different sizes along with one black hair pin came to be seized under panchanama. Akshay further disclosed that after committing assault on Manda at that spot, accused took her, accompanied by him, on his motor-cycle to his farm house. Accordingly, motor-cycle also came to be seized, which was found having blood stains on its regzine sheet and steel side-guard. It was further disclosed by Akshay that accused brought Manda to their house from their farm house in auto-rickshaw, which was also seized and accused came to be arrested on the same day at 3.15 p.m. His clothes having blood stains along with clothes of Akshay were seized. Clothes of deceased Manda also came to be seized. Blood sample of accused and that of deceased Manda came to be collected. Post mortem report of deceased Manda was received as per Exh. 62 on record. Akshay as well as accused were referred for their medical examination. However, neither of them was certified to have sustained any injury. The Investigating Officer during the course of investigation obtained opinion from Doctor about possibility of injuries sustained by deceased Manda by stone by issuing requisition memo (Exh. 63), which queries were replied in affirmative vide certificate (Exh. 64). All the seized articles were referred for analysis to Chemcial Analyser vide covering letter (Exh.76) and the reports of Chemical Analyser are at Exhs.69 to 72.
4. It further appears to be the case of prosecution that the Investigating Officer had applied to the competent Court of Judicial Magistrate, First Class, Washim for recording statement of Akshay under Section 164 of Code of Criminal Procedure on 11/3/2011 when he was directed to be produced on 19/3/2011, on which day though the Investigating Officer produced Akshay, he was directed to be produced on 28/4/2011. However, before statement of Akshay could be recorded under the said provision, he died of unnatural death on 27/4/2011 in his residential house. On completion of investigation, charge-sheet came to be filed against accused in the Court of learned Judicial Magistrate, First Class, Washim. In the course of time, case came to be committed for trial to the Court of Sessions.
5. Charge was framed against accused vide Exh.4, to which he pleaded not guilty and claimed to be tried. The defence of accused was that Manda died of accidental death while riding on his motor-cycle on the day of incident.
6. The prosecution to establish the charge levelled against accused, examined as many as 12 witnesses and commenced its evidence by examining P.W.1 Eknath, brother of deceased Manda, who lodged report, P.W.2 Bhaskar on circumstance of accused with deceased visiting house of Eknath on the day of incident, P.W.3 Manish, panch on seizure of clothes of deceased Manda, P.W.4 Manisha, daughter of accused and deceased Manda, however, she did not support the case of prosecution, P.W.5 Santosh, panch on inquest panchanama, P.W.6 Sandeep, panch on seizure of stones, P.W.7 Sakhubai on circumstances, P.W.8 Bhimrao, servant of accused, who was present at the farm house at the relevant time, P.W.9 Narayan Pande, auto-rickshaw Driver, P.W.10 Dr. Susadkar, who examined Akshay and accused, P.W.11 Dr. Naresh Udgire, who performed autopsy and concluded its evidence by examining P.W.12 Shegokar, P.S.I. - Investigating Officer. In his statement under Section 313 of Code of Criminal Procedure, it is stated by accused that after visiting house of Eknath on the day of incident, he along with his wife Manda and son Akshay was returning back on his motor-cycle. He was riding the motor-cycle while Akshay was sitting in between him and Manda. On the way, motor-cycle met with an accident due to which Manda fell down and sustained injuries on her head and neck. He then made Manda to sit in between him and Akshay on the motor-cycle and brought her in a room situated in his field and though attempted to arrange for Doctor, he could not arrange him and thus, by arranging autorickshaw brought Manda along with himself and Akshay to his house at Washim.
7. We have heard Dr. (Ms.) Kalsi, learned Counsel for appellant/accused, and Shri Mirza, learned Additional Public Prosecutor for respondent, at length. To effectively evaluate the submissions advanced by learned Counsel for both the sides, with their assistance, we have scrutinized the evidence on record.
8. Admittedly, the prosecution case is based on circumstantial evidence as there is no ocular evidence on the point of death of Manda caused by accused as Akshay, the sole eye witness died of unnatural death one day prior to recording of his statement under Section 164 of Code of Criminal Procedure. It is the case of accused that Manda died due to accident while she was a pillion rider on motor-cycle driven by accused having their son Akshay travelling by occupying a seat in between them. We find that though Akshay is a material witness as appears from the evidence of P.W.1 Eknath, complainant as well as oral evidence of P.W.8 Bhimrao and P.W.4 Manisha, his evidence could not be recorded for the reason as aforesaid. In that view of the matter, we find it necessary first to consider evidence of P.W.1 Eknath.
9. P.W.1 Eknath, in his evidence, has stated that deceased Manda was his elder sister married to accused and they were having P.W.4 Manisha as their daughter and two sons including Akshay. His evidence reveals that accused was hot tempered and vagabond type of person and used to beat deceased Manda without any reason and used to suspect her character, if anybody visits their house. He has further stated that 7-8 months prior to incident, accused drove Manda out of house along with her children, of which report was already lodged by Manda. With reference to incident, it is stated that on 6/2/2011 his mother Indubai was at the house of Manda and on that day, he had invited accused and his family members and his mother for lunch. Accordingly at about 12 noon, P.W.4 Manisha brought his mother to his house while accused along with deceased Manda and Akshay came on motor-cycle. After some time, P.W.2 Bhaskar arrived to meet him. On seeing P.W.2 Bhaskar, accused got irritated and asked him as to why he was there and indulged into quarrel on that count. When deceased Manda tried to intervene, accused gave her 2-3 slaps. Due to this incident, P.W.2 Bhaskar left the house of P.W.1 Eknath. He has further stated that at about 5.30 p.m. P.W.4 Manisha took her grand-mother on her two wheeler to the house of accused while accused, deceased Manda and Akshay proceeded on their motor-cycle. At about 6 p.m. accused spoke to P.W.1 Eknath on telephone and asked why he had called Bhaskar. P.W.1 Eknath has further stated that at that time, from the voice on telephone, he could make out that accused was beating Manda as he could hear her weeping on the telephone. From his evidence, it has further come on record that 15-20 minutes thereafter, P.W.4 Manisha by calling him on phone, enquired if her parents, i.e. accused and Manda had left since they had not reached home. He has further stated that on the next day, he received a phone call from accused, who informed him that while proceeding back to home on motor-cycle, they met with an accident, due to which Manda fell down on the ground and died and her dead body was brought to his house. Accordingly, P.W.1 Eknath reached the house of accused and found Manda to be dead having injuries on her face, neck, head and limbs. He suspected death of Manda and, therefore, enquired from Akshay by taking him into confidence, who disclosed that yesterday after they left the house of P.W.1 Eknath on motor-cycle, accused assaulted Manda in hutment area situated near Police residential quarters and thereafter took them on motor-cycle to Tornala Shiwar through foot-way and stopped the vehicle and at that spot, killed Manda by smashing her head with stone and then took them on motor-cycle to his farm house situated in Raja-Kinhi Shiwar. According to P.W.1 Eknath, on receiving this information from Akshay, he lodged report with Police Station, Washim as per Exh.23. He has further stated that three months after the incident, Akshay died of unnatural death, who at that time was 14 years old studying in VII Standard.
Nothing material appears to have been elicited in the cross-examination of P.W.1 Eknath except for his admitting that earlier Manda had lodged report against her father and brothers including Eknath and had also filed civil suit against her relatives claiming share in the property and has further admitted that for resolving such dispute, he had invited accused and his family members for lunch and they were present in his house for 3-4 hours. P.W.1 Eknath has denied that in the meeting, Manda agreed to withdraw the case provided she is given share in the field situated at Bramhanwada and on that count, there was dispute amongst them. It is admitted that on the following day at 7 a.m. after he received a telephonic message from accused, he visited his house where apart from accused, his children and neighbours were present. It is denied that at that time, there was exchange of words between him and accused and at that time, he enquired from accused about the incident upon which he replied that accident took place. It is also denied that on enquiry from Manisha, who was present there, she also replied in the same manner. It is also denied that since he got annoyed, he lodged a false report against the accused.
10. In view of above evidence of P.W.1 Eknath, it is noted that his evidence about his taking Akshay into confidence and on enquiry, Akshay informing him that after they left the house of P.W.1 Eknath on motorcycle, accused assaulted Manda in hutment area situated near Police residential quarters and thereafter took them on motor-cycle to Tornala Shiwar through foot-way and stopped the vehicle and at that spot, killed Manda by smashing her head with stone and then took them on motor-cycle to his farm house situated in Raja-Kinhi Shiwar goes unchallenged. There is no cross-examination on this material aspect of the case of prosecution and as such, said evidence goes unchallenged. Though there is an omission in the report (Exh. 23) lodged by P.W.1 Eknath to the effect that Akshay told him that when they were on their way to house on motor-cycle, accused beat his mother Manda near hutment area in front of Police residential quarters, this by itself does not create any doubt in the evidence of complainant. It is a settled law that first information report is not an encyclopaedia to have all details of the incident complained of, but the primary purpose of lodging report is to put Investigating Agency into motion. In that view of the matter, even if omission as above is considered as it is, that by itself does not affect the evidence of P.W.1 Eknath on the material point of his getting information as to cause of death of Manda from Akshay.
11. On considering evidence of P.W.1 Eknath, we find it necessary to consider evidence of P.W.8 Bhimrao Tidke, who, on the day of incident, was working as servant of accused in his farm and has stated that he was residing in a room situated in the field of accused and the incident took place in the second month of previous year. He has further stated that on the day of incident at about 11 p.m. while he was sleeping in the court-yard, accused arrived with his wife Manda and son Akshay and asked him to open the door. On his direction, he brought one cot and spread mattress thereon and thereafter accused lifted Manda and placed her on the cot and told him to arrange for a Doctor as his wife was unconscious. According to him, though he attempted to arrange for Dr. Ghuge and Dr. Bangali, but none of them was available and then returned back to the field by about 1 a.m. He stated that thereafter accused and Akshay slept and he also went to sleep. In the morning at about 5 o'clock, accused by making a phone call arranged an auto-rickshaw, which was accordingly brought by P.W.9 Narayan Pande, auto-rickshaw Driver and by putting Manda in it, Akshay and accused accompanied by him went to the house of accused at Washim. He has further stated that before reaching house, accused telephoned P.W.4 Manisha and on reaching home, he lifted Manda and took her inside house and therefrom he returned back. In the cross-examination though P.W. Bhimrao has admitted that he had not minutely observed Manda and thus, he is unable to say whether she had sustained any injury, this admission is in no way fatal to the case of prosecution in the absence of any evidence on record establishing source of light in the hut where accused had taken Manda. Even otherwise, there was no reason for P.W. Bhimrao Tidke to minutely observe Manda in view of his admission that accused had told him to bring Doctor as Manda was unconscious and as such, he immediately left the room by foot to arrange for a Doctor and returned back at 1 o'clock in the night, however, no Doctor could be arranged and since accused and his son went to sleep, he left to sleep.
12. Evidence of P.W.9 Narayan Pande, autorickshaw Driver corroborates the evidence of P.W. Bhimrao when he has stated that on 7/2/2011 in the morning accused telephoned him and accordingly he reached his field wherefrom accused lifted his wife and brought her in auto-rickshaw, to whom along with accused, his son Akshay and P.W.8 Bhimrao Tidke were driven by him to the house of accused at Washim. He has further stated that at that time, wife of accused was not speaking and on his enquiry from accused, he was informed that she was not well. He has also stated that on reaching home of accused, he lifted his wife from auto-rickshaw and took her inside the house and thereafter he along with P.W.8 Bhimrao left the place and on the following day, learnt that Manda was killed and his auto-rickshaw was attached by Police. Nothing material is brought in the cross-examination of this witness in order to discredit his evidence.
13. In that view of the matter and since as stated above, the case is based on circumstantial evidence, we reiterate that in dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases, it is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
14. The learned Additional Public Prosecutor has vehemently submitted that from the evidence of aforesaid witnesses, since it is established that deceased Manda was in the company of accused and since accused and deceased were last seen together, theory of last seen together and provisions of Section 106 of Indian Evidence Act, 1872 are squarely applicable in the instant case. On the other hand, the learned Counsel for the defence could not make convincing submissions in view of the case of prosecution, which has not been disputed by defence, about accused and deceased Manda reaching the house of P.W.1 Eknath on the day of incident and thereafter at about 5.30 p.m. accused, Akshay and Manda proceeding on motor-cycle back to their house when Manda was brought to house in dead condition on the following day in the morning.
15. In the backdrop of above facts and proposition of law, we have considered the case of prosecution if it comes within the ambit of Section 106 of Indian Evidence Act, 1872. Evidence of P.W.11 Dr. Naresh Udgire, who performed autopsy on the dead body of Manda, noted following external injuries on her, which were stated to be ante mortem:
1) Deep CLW found over left forehead along with right occipital region, of size ½ x 2 cms.
2) Multiple contusions of varying shape and size found over face, neck, both upper and lower limbs along with chest and buttock.
3) Abrasion over mid chin of size 5 x 2 cms.
4) Abrasion with CLW found over left side of face of size 5 x 2 cms.
5) Abrasion over right and left clavicle of 7 x 3 cms.
6) Abrasion over right upper limb.
On palpation fracture on left maxilla along with fracture and right left lower limb.
On internal examination, Doctor found deep CLW over left side of forehead along with right occipital region of size ½ x 2 cms. and opined that probable cause of death was due to hypovolemic along with neurogenic shock due to head injury along with multiple fractures along with multiple injuries all over body.
On being confronted with 15-16 small and big size stones, he opined that injuries sustained by deceased Manda were possible by such stones. Though in the cross-examination he has admitted that certain injuries sustained by deceased Manda were possible by fall of a person from vehicle, said admission does not stand for any reason in view of the evidence of P.W.12 Shegokar, Investigating Officer that during the course of investigation, on his arresting accused on 7/2/2011 at 3.25 p.m. and on sending him along with Akshay for their medical examination, neither of them is certified to have sustained any injury on their person. Medical certificates of accused and Akshay are on record at Exhs.67 and 60. Similarly, seizure panchanama of motor-cycle also does not establish any damage to the said vehicle. Said panchanama is recorded at Exh.44. In that view of the matter and deceased Manda since is found to have sustained many injuries as aforesaid, the case put forth on behalf of accused of deceased Manda sustaining injuries due to fall from motor-cycle is not at all convincing, more particularly in the absence of any explanation put forth by the accused on this aspect.
16. Section 106 of the Indian Evidence Act, 1872 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles, which underlie Section 106 of the Indian Evidence Act, 1872 can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan vs. Kashi Ram {(2006) 12 SCC 254}, the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Indian Evidence Act, 1872. In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.
17. While considering the case of prosecution based on the theory of last seen together, it has come in the evidence of P.W.1 Eknath which, even otherwise is not seriously disputed by accused, that on the day of incident, accused along with his wife Manda and son Akshay had left his house at 5.30 p.m. on motor-cycle to return back to their house and half an hour thereafter he received a phone call from accused enquiring about reason for inviting P.W.2 Bhaskar, etc. and at that time, he heard noise of accused beating Manda and of her weeping on phone. Though this by itself cannot be a substantive piece of evidence, since there is no challenge to his evidence as stated above, it establishes that deceased was in the company of accused since they left the house of Eknath, which in fact is not denied by accused. The fact of deceased being in the company of accused is further established from the evidence of P.W. Eknath when it is stated that on 7/2/2011 on his reaching the house of accused, since he noticed injuries on the person of deceased, suspected some foul play and thus, by taking Akshay into confidence, he enquired from Akshay upon which, he narrated that accused on the way beat Manda near Police residential quarters, Washim and from there, took them on motor-cycle through foot-way to Tornala Shiwar where accused killed her by smashing by stone and then took Akshay and Manda to a room in his farm situated at Raja-Kinhi Shiwar. The evidence of P.W.8 Bhimrao Tidke further establishes the case of prosecution on the theory of last seen together when he has stated that in the night intervening 6/2/2011 and 7/2/2011 at 11 p.m. accused along with Manda and Akshay visited the room situated in the field of accused where Manda was informed to have met with an accident and he was directed to arrange for a Doctor. The evidence of P.W.8 Bhimrao Tidke as well as P.W.9 Narayan Pande, auto-rickshaw Driver further establishes that in the morning at 5 o'clock on 7/2/2011, accused took Manda along with Akshay to his house at Washim in the auto-rickshaw.
18. In view of above discussed evidence of P.W. Eknath, P.W. Bhimrao and P.W. Narayan, prosecution can be said to have established its case that on the day of incident, deceased Manda was with accused till she was done to death. The accused having been last seen together with deceased Manda, burden certainly lies upon the accused to prove and establish as to what happened thereafter since those facts were within his special knowledge. If the accused fails to do so, it must be held that accused has failed to discharge burden cast upon him by Section 106 of Indian Evidence Act, 1872. In the appeal in hand, there is absolutely no case put forth by accused as to what were the circumstances which led to causing death of Manda.
19. In the background of above circumstances, we find it useful to rely upon the decision of the Apex Court in the case of RishiPal vs. State of Uttarakhan (2013 Cri.L.J. 1534) wherein reference is made to the case of BodhRaj alias Bodha and others vs. State of Jammu and Kashmir {(2002) 8 SCC 45} wherein Apex Court held as under:
âThe last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.â
20. In the present criminal appeal, deceased Manda was found in the company of accused right from 5.30 p.m. till she was brought home in dead condition by accused on the following day at 5 a.m. and as such, it can definitely be held that in the present case, theory of last seen together comes into play as there was absolutely no time gap when accused and deceased Manda were seen last alive and when deceased Manda was found dead. As such, possibility of somebody else committing murder of Manda is totally impossible.
21. P.W.4 Manisha, daughter of accused and deceased Manda, has not supported the case of prosecution. She has stated that on 6/2/2011 she had attended the house of Eknath where her parents, Akshay and grand-mother were present and they had their meals. She has further stated that in the evening, she along with her grand-mother came back to the house of accused, while accused, deceased Manda and Akshay proceeded on their motor-cycle. She has further stated that after she reached home, since accused did not reach home, she phoned Eknath and enquired about accused when Eknath informed her that accused had indulged into quarrel with Manda near Police quarters. P.W.4 Manisha has further stated that though she accordingly reached near Police quarters, she did not find anyone and, therefore, returned home. She has stated that at 7.45 p.m. she received a phone call from accused, who informed her to take her grand-mother to her house (to the house of Eknath) and not to keep her in his house and thus, Manisha left her at her maternal uncle's house at 8 p.m. and though tried to contact accused, she was not successful and thus, went to sleep. She has further stated that on the next day, in the morning at 6 o'clock, she received a phone call from accused directing her to keep front door of house open and again enquired whether her grand-mother was in the house, to which she replied in negative. After sometime, one auto-rickshaw reached in front of her house, which was driven by P.W.9 Narayan Pande wherefrom accused, Manda and Akshay arrived. Accused then took his wife, who was unconscious, from the auto-rickshaw and brought her inside the house and kept her on a cot and it was informed by accused that she had met with an accident. P.W.4 Manisha noted head injury sustained by Manda. She has further stated about arrival of Eknath. According to her, though she had enquired from Akshay about the incident, he is stated to be not in a condition to talk. She denied that on her enquiring from Akshay, he narrated that accused killed her mother by smashing her with stone. In the line of her evidence as stated above, she was allowed to be declared hostile and was cross-examined by the learned Additional Public Prosecutor. In the cross-examination, on being confronted with her statement under Section 161 of Code of Criminal Procedure, she denied to have stated to Police as per portion `A', which is reproduced hereunder:
âI took my brother Akshay in other room and inquired with him regarding the incident, who told me that father quarreled with mother, took her on a bike to Tornala Shiwar, where he stationed the bike. Thereafter, father took the mother by the side of road and killed her with the help of stone. Later on he made to sit her between me and father on a bike and brought to the hut situated in the field of Raja Kinhi. She was kept on a cot for a whole night and now in the morning, she was brought to the house in an auto.â
22. Above marked portion `A' is duly proved by prosecution from the evidence of P.W.12 Shegokar, Investigating Officer at Exh. 78. In the cross-examination by the learned Additional Public Prosecutor, P.W.4 Manisha admits that in spite of recording above stated portion, she had not made any complaint about it to superior Police Officer and has not put forth any reason as to why it is appearing so in her statement recorded by Police. Admittedly, P.W.4 Manisha is daughter of accused and deceased and it is pertinent to note that she was working as Police Constable at the material time and after death of her mother, has resiled from her statement to save her father. However, her evidence, as stated above, cannot be brushed aside, but needs to be acted upon on scrutinizing same cautiously as has been laid down in the case of Bhajjualias Karan Singh vs. State of Madhya Pradesh (AIR 2012 SC (Cri) 748) wherein the Apex Court had an occasion to consider the version of hostile witness and has expressed thus:
âNormally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 Cr.P.C., the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the Counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.â
Similarly, as per the settled legal proposition, evidence of hostile witness is not to be rejected in toto. Reference can be usefully made to the case of RameshbhaiMohanbhai Koli and others vs. State of Gujarat (AIR 2011 SC (Cri) 120) wherein reiterating the principle, the Apex Court has stated thus :
â16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof.â
23. In view of above proposition of law, evidence of P.W.4 Manisha can very well be acted upon, thereby reading portion `A' of her statement (Exh 78) as its contents are corroborated by other evidence on record. Said evidence in fact establishes involvement of accused in the crime in question when same is considered with other evidence into its totality.
24. It is the case of prosecution that P.W.1 Eknath and P.W.4 Manisha received information with regard to cause of death of Manda from Akshay, who admittedly could not be examined since dead prior to trial. The learned Additional Public Prosecutor then by referring to provisions of Section 6 of Indian Evidence Act, 1872 has contended that based on the above provision, evidence of Akshay since lends support to the case of prosecution, it can be duly considered.
25. Before adverting to the above provision, we have considered the evidence of P.W.12 Shegokar, Investigating Officer, who has stated that during the course of investigation, he visited the spot, which was shown by Akshay accompanied with panch P.W.6 Sandeep and co-panch Dilip wherefrom 15-16 stones having blood stains came to be seized along with other articles. According to Investigating Officer, Akshay stated that accused had taken Manda on his motorcycle accompanied by him in his field where P.W.8 Bhimrao Tidke was present. On visiting the spot, the Investigating Agency found motor-cycle present there, which came to be seized since it was found having blood stains on its rear side and on its steel guard. According to the Investigating Officer, Akshay further narrated that accused directed P.W.8 Bhimrao Tidke to arrange for a Doctor and arranged for auto-rickshaw of P.W.9 Narayan Pande for carrying Manda to their house at Washim. Accordingly, on the basis of this evidence, accused came to be arrested at 3.35 p.m. on the same day.
26. In view of above evidence and on considering Section 6 of Indian Evidence Act, 1872, it is found that Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval, which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. As such, the requirement to apply provision of Section 6 of Indian Evidence Act, 1872 is that the statement sought to be admitted so as to find part of res gestae must have been made contemporaneously or immediately thereafter.
27. In the present case, the first available opportunity to Akshay to make a statement was only on 7/2/2011 after he accompanied accused and deceased Manda to their house at Washim and on his being enquired by P.W.1 Eknath and P.W.4 Manisha he disclosed the fact involving accused. Akshay narrated them that accused while proceeding on motor cycle along with deceased Manda and himself near hutment in front of Police residential quarters assaulted Manda and from there took her on motor-cycle through footway to Tornala Shiwar where he killed her by smashing by stone and from there took her to a room situated in the field of accused at Raja-Kinhi Shiwar and from there, brought deceased Manda to his house on the following day in auto-rickshaw. Above stated statement of Akshay, therefore, on the face of it, appears to be almost contemporaneous having no interval in between the incident and Akshay disclosing above facts to P.W.1 Eknath, P.W.4 Manisha and P.W.12 Shegokar, Investigating Officer nor there is any possibility of Akshay being tutored or his fabricating false story as he had no opportunity to meet anyone from the time of incident till his meeting with any of the above named witnesses. In that view of the matter, we find it useful to refer to the decision of the Apex Court in the case of GentelaVijayavardhan Rao vs. State of A.P. {(1996) 6 SCC 241} wherein it is held as under:
â15) 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' that it 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 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.â
In view of above authoritative proposition and for the reasons stated above, since there was no earlier occasion for Akshay to make statement to P.W. Eknath, P.W. Manisha or to P.W.12 Shegokar, Investigating Officer or to fabricate evidence against accused, statement of Akshay as deposed by above witnesses can duly be acted upon since found to have been made immediately and forms part of same transaction and is contemporaneous with the acts of accused, which constitute the offence.
28. In that view of the matter, ratio as laid down by the aforesaid decisions can be applied, to act upon the evidence of P.W.1 Eknath, P.W.4 Manisha, P.W.8 Bhimrao Tidke, P.W.9 Narayan Pande and P.W.12 Shegokar, Investigating Officer to hold that Akshay made statement to P.Ws. Eknath, Manisha and Shegokar, Investigating Officer indicating that Manda is killed by accused by smashing her by stone. As such, said statement becomes admissible under Section 6 of Indian Evidence Act, 1872.
29. The prosecution case is further found substantiated from Chemical Analyser's report on record (Exh. 69) as no poisonous substance was found in the stomach and its contents while according to Exh.71, blood group of deceased Manda was certified to be `O' while that of accused as per Exh. 70 is of group `B'. The clothes of deceased Manda being saree and blouse were found having human blood of Group `O', which is of herself. While shirt, T shirt and full pant of accused are also certified to have human blood of group `O'. Similarly, 15 stones seized from the spot are also stated to be stained with blood of Group `O'. Though clothes of Akshay, who was with deceased Manda and accused at the time of incident, are stated to have stained with human blood of `O' Group and blood group of Akshay is also certified to be of `O', since according to medical certificates, neither Akshay nor accused are certified to have sustained any injury muchless bleeding injury, though blood group of Akshay was also `O', nothing is brought on record to establish under what circumstances blood of group `O' was found on his clothes like those of accused. Above aspect is also a strong circumstance against accused, which goes unexplained.
30. For the aforesaid reasons, the criminal appeal is liable to be dismissed. Hence, we pass the following order:
Order
Criminal Appeal No.537/2012 is dismissed.
The impugned judgment and order dated 3/12/2012 passed by the learned Additional Sessions Judge, Washim in Sessions Trial Case No.62/2011 is confirmed. No order as to costs.