Devi Singh vs State
2018 Latest Caselaw 472 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 07.04.2018
 
Delivered on 10.05.2018 
 

 

 
In chamber
 

 
Case :- JAIL APPEAL No. - 2197 of 2010
 

 
Appellant :- Devi Singh
 
Respondent :- State
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Rajiv Lochan Mehrotra,J.

Hon'ble Aniruddha Singh,J.

[1] Heard Sri Abhay Raj Singh, learned Amicus Curiae appearing on behalf of the appellant, Ms. Anjum Hak, learned A.G.A. for the State and perused the record.

[2] The present criminal appeal has been preferred against the judgment and order 18.02.2010 passed by Additional Sessions Judge, Court No. 7, Mathura in Sessions Trial No. 521 of 2008 arising out of Case Crime No. 197 of 2008 thereby convicting and sentencing the appellant for life imprisonment and a fine of Rs.2,000/- under Section 302 IPC.

[3] The prosecution story in nutshell is that the complainant-Dharamvir son of the appellant-Devi Singh handed over a written report to the In-charge police station-Govind Nagar, District-Mathura with the averments therein that on 28.05.2008 at about 6:00 am, his mother-Premwati(hereinafter referred to as 'deceased') after purchasing the milk was coming back to her house. On the way, the appellant met her, gave a blow of iron rod on her head and also inflicted knife injuries in her stomach. As early as he received the information to this effect, he got her admitted in the hospital wherein she succumbed to these injuries. The said incident was witnessed by Sonu and Padam Singh. On the abovesaid complaint, FIR was lodged on 28.05.2008 at 11:30 pm. The investigation came into motion and the proceedings with regard to the inquest memo were observed in between 11:35 am to 2:30 pm on the same day. The autopsy on her body was also performed on the same day at 5:00 pm. As per postmortem report, two lacerated wounds and five incised wounds were found on her body. The Investigating Officer investigated the matter and submitted a chargsheet against the appellant under Section 302 IPC.

[4] A charge was framed against the appellant under Section 302 IPC which he denied and claimed for trial.

[5] In support of the charge, prosecution examined PW-1, Dharamvir(complainant), PW-2, Sonu and PW-3, Padam Singh as witnesses of facts. PW-4, Constable Anil Kumar Upadhyay transported the body of the deceased up to the postmortem house. This witness also collected the bundle and an enclosed envelope after postmortem which were handed over to the police record room. PW-5, Shiv Kumar lodged the report in the light of the complaint moved by the complainant and made its entry into the relevant register. PW-6, SI Satyvir Singh performed the formalities with regard to the inquest memo. PW-7, Dr. Rajiv Kumar Rohtagi performed the autopsy on the body of the deceased while PW-8, SI Umesh Powar investigated the matter and submitted the charge sheet.

[6] Statement of the accused/appellant was recorded under Section 313 Cr.P.C. wherein he denied the commission of offence and said that the witnesses have falsely deposed against him. It is further stated by the appellant that his wife was of loose character. However, no defence witness was examined by the appellant.

[7] As per the FIR, incident was witnessed by Sonu and Padam Singh. It shall be proper to mention here that the complainant is the son of the appellant. Sonu is the nephew of the appellant while Padam Singh is the brother-in-law of the appellant and also the brother of the deceased. PW-1, Dharamvir(complainant) was examined on 24.07.2009 i.e. after more than a year. The witness supported the prosecution version and proved his complaint as Ex. Ka-1. He specifically admitted that the report was read over to him and after hearing it, he put his signature over it. When cross-examined, the witness said that the said report was not read over to him and he put only his signature on it. When this witness reached on the spot, a large number of people had already assembled there. Some of the people present there informed him that the injuries were caused by the appellant and only on this basis, he moved the complaint. It is admitted by this witness that PW-2, Sonu is his cousin while Padam Singh is his maternal uncle and both these witnesses had pressurized him to lodge the report against the appellant.

[8] On the one hand, the witness is supporting the prosecution version and admitting this fact that the report was read over to him by the scribe-Shiv Kumar. But later on, he took a complete turn and said that it was never read over to him. The statement of this witness was recorded more than one year after the incident. He is the son of the appellant and his age, at the time of recording of his evidence, was only 24 years, therefore, it can be presumed that the witness during his deposition was under pressure of the appellant and some other relatives and was trying to dilute the prosecution version. PW-2, Sonu in his examination-in-chief has admitted that on the date and time of the incident, he heard a noise on which he immediately rushed to the spot whereat his mausi-Premwati was lying injured. However, this witness said that he did not saw the appellant causing injury to the deceased. This witness was declared hostile and was cross-examined by the prosecution wherein he clearly admitted that he and the appellant have entered into a compromise. PW-3, Padam Singh said that while driving his rickshaw towards Deeng Gate crossing at about 6:00 am on the date of occurrence, he heard a noise whereon he reached on the spot and saw the appellant causing injuries to Premwati(deceased) with the help of knife. On a challenge, the appellant fled away from the spot. This witness with the help of complainant-Dharamvir and some other persons admitted the deceased to the district hospital wherein she succumbed to the injuries. Originally the witness is the resident of village Kurkhanda at District-Hathras but in the cross-examination, the witness said that during those days, he was living with his younger sister-Siya Devi at Arjunpura and used to earn money by pulling rickshaw. Witness Sonu is the son of Siya Devi. As per admission of this witness, he reached on the spot first and after that Sonu appeared there. On a question asked from the side of the appellant as to why this witness opted to live with his younger sister while both were living in the same locality, the witness replied that the younger sister is a widow, therefore just to look after her family, he is residing with her. PW-7, Dr. Rajiv Kumar Rohtagi performed the autopsy on the body of the deceased and found seven injuries. Two injuries of head and one injury of neck were in the form of lacerated wounds while rest four injuries on chest and abdomen were in the form of incised wounds. Though, it was not suggested by the prosecution to the doctor whether the injuries suffered by the deceased were the result of knife and iron rod but it is clearly asked by the accused in the cross-examination and the doctor replied that these injuries were the result of at least two weapons. The witness further clarified it that out of these two weapons, one was blunt in nature while the other was sharp edged weapon. Thus, reply of the doctor as well as injuries sustained by the deceased also supports the prosecution version because two weapons used by the accused/appellant at the time of occurrence were iron rod and knife.

[9] It is argued on behalf of the appellant that PW-1 did not support the prosecution version in toto because as per his admission, he did not see the occurrence and on the instigation of PW-2, Sonu and PW-3, Padam Singh present on the spot, he lodged the report. It is further argued that the said report was never read over to the complainant as per his admission. It is next argued that PW-2, Sonu is also not supporting the prosecution version and for this reason, he was declared hostile. For PW-3, Padam Singh, it is contended by learned counsel for the appellant that he is a chance witness because he is a permanent resident of Kurkhanda at District-Hathras and his presence at the spot is highly doubtful. In support of his contention, learned counsel for the appellant has placed reliance on following judgments of Hon'ble the Apex Court which read as follows :-

(i)ALIL MOLLAH VS. STATE OF WEST BENGAL 1996 LAWSUIT(SC) 1050;

(ii)MANI RAM VS. STATE OF UTTAR PRADESH 1994 LAWSUIT(SC) 538;

(iii)TORAN SINGH VS. STATE OF M.P. 2002 SUPREME COURT CASES(CRI) 1377;

(iv)P. MANI VS. STATE OF TAMILNADU (2006) 2 SUPREME COURT CASES(CRI) 36.

[10] It is argued from the side of the prosecution that the said matter is directly covered under Section 6 of the Evidence Act which reads as under :-

"Relevancy of facts confirming part of some transaction :- Facts which though not in issue are so connected with a fact in issue as to confirm part of some transaction, are relevant whether they occurred at the same time and place or at different times and places."

[11] In the instant case, undoubtedly the complainant reached on the spot immediately after the incident. He was told by the persons present there that such offence was committed by the appellant. If for the sake of argument it is presumed that the complainant did not see the occurrence even then his presence just after the incident is not ruled out. The persons present there narrated him the story and the manner of commission of offence committed by the appellant. This factum is nowhere challenged in the cross-examination of complainant. Thus, this part remained unchallenged.

[12] So far as the evidence of PW-2, Sonu is concerned, this witness also reached on the spot immediately after the incident. Though, as per his evidence he has not seen the occurrence but in the cross-examination, he has categorically admitted this fact that he has entered into compromise with the appellant. The word 'compromise' has a significant importance in the present case because all the three witnesses of facts are closely related to the appellant. Complainant is the son. PW-2, Sonu is the real nephew and PW-3 is the brother-in-law. Thus, there appears ample chance of winning over these witness on the ground of their being close relatives of the appellant. The evidence of PW-2 was recorded 15 months after the date of occurrence and this duration was sufficient to settle the matter in favour of the appellant. PW-3, Padam Singh being real elder brother of the deceased did not succumb to the pressure and supported the prosecution version. The reason for his being there in the nearby locality during that period has already been sufficiently explained in his cross-examination.

[13] It is not a case of defence that the appellant and the deceased were not living together. As per admission of PW-1, Dharamvir, his parents were living together in a cheerful atmosphere and did not have any dispute between them. The inquest memo was completed at 2:30 pm on the date of incident i.e. eight and half hours after the incident but the inquest memo does not have the signature of the appellant which means that he was not present there. As per evidence of PW-8 Umesh Powar, so many raids were conducted to arrest the appellant but he could be arrested only on 31.05.2008 i.e. three days after the incident. The conduct of absconding the accused after the incident also supports the prosecution version. In his statement recorded under Section 313 Cr.P.C. though the accused/appellant has denied the commission of offence and said that the witnesses has wrongly deposed against him but it is further stated by him that his wife was of bad character. The motive of commission of offence may be same as alleged by the appellant in his statement under Section 313 Cr.P.C.

[14] PW-1 clearly admitted this fact that so many persons, present on the spot told him that his father (appellant) has caused injuries to his mother. Said statement of this witness is unchallenged. Date, time and place of occurrence is also admitted to PW-2, Sonu who in his deposition nowhere denied his presence on the place of occurrence, may be just after the incident. Absconding just after the incident and alleging his wife as of bad character also supports the narration made by the public present on the spot to the complainant. The hearsay evidence, in ordinary course may not have any evidentiary value but in the present case, it is very relevant because all these facts are very well connected with the fact in issue of the present case and appeared to be of the same transaction.

[15] Hon'ble the Apex Court in Dhal Singh Dewangan Vs. State of Chhattisgarh has clearly interpreted Section 6 of the Evidence Act, para 15 of which is extracted hereinunder :-

"15. 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" 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. In R. v. Lillyman2 [2]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 up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R.[3] 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 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.

[16] Thus, the presence of complainant-Dharamvir and Sonu immediately after the incident is unchallenged. On pointing out of so many persons present on the spot, injured was taken to the hospital by the complainant and the other witnesses and the report was lodged naming there only the husband of the deceased who is also father of the complainant and uncle(mausa) of PW-2, Sonu. The absence of the accused since the time of the occurrence to the post mortem also connects his involvement in the crime. Entering into a compromise, as alleged by PW-2, Sonu also confirms the prosecution version. Apart from it, no such fact could be elicited in the cross-examination of PW-3, Padam Singh which may doubt his presence at the time of occurrence. The character assassination of his wife(deceased) by the appellant also decides the motive for commission of offence. Thus, the case is fully covered under Section 6 of Evidence Act and because of this reason the authorities cited on behalf of the appellant do not help his defence.

[17] Considering the facts and circumstances of the case and the materials brought on record, we find that the impugned judgment and order of sentence requires no interference.

[18] In the result, we find no merit in the present appeal, which is accordingly dismissed. The appellant is in jail. He shall serve out the remaining sentence.

[19] Before concluding, this Court must put on record its appreciation of the efforts put in by the learned Amicus Curiae in providing valuable assistance to the Court. It is, therefore, directed that a sum of Rs. 7,000/- be paid to Mr. Abhay Raj Singh, learned Amicus Curiae towards fees.

[20] Copy of this judgment along with original record of court below be transmitted to the court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.

Order date :- 10.05.2018

sumit s