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 :
“I 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.”
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 crossexamination
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 Bhajju alias 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 :
“Normally, 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-inchief,
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.”
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
Rameshbhai Mohanbhai Koli and others vs. State
of Gujarat (AIR 2011 SC (Cri) 120) wherein reiterating
the principle, the Apex Court has stated thus :
“16. 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.”
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.537 OF 2012
Apparao Bahadurrao Ghuge,
- Versus -
State of Maharashtra,
CORAM : A.B. CHAUDHARI AND
P.N. DESHMUKH, JJ.
DATED : JANUARY 28, 2015
Citation: 2016 ALLMR(CRI)2465
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 Rishi Pal vs. State of
Uttarakhan (2013 Cri.L.J. 1534) wherein reference is
made to the case of Bodh Raj alias Bodha and
others vs. State of Jammu and Kashmir {(2002) 8
SCC 45} wherein Apex Court held as under :
“The 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.”
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 :
“I 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.”
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 crossexamination
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 Bhajju alias 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 :
“Normally, 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-inchief,
cross-examination by the prosecutor and
cross-examination by the Counsel for the
accused. It is admissible to use the examinationin-chief
as well as the cross-examination of the
said witness insofar as it supports the case of the
prosecution.”
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
Rameshbhai Mohanbhai Koli and others vs. State
of Gujarat (AIR 2011 SC (Cri) 120) wherein reiterating
the principle, the Apex Court has stated thus :
“16. 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.”
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 Gentela Vijayavardhan
Rao vs. State of A.P. {(1996) 6 SCC 241} wherein it
is held as under :
“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' 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.”
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.
Print Page
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 :
“I 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.”
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 crossexamination
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 Bhajju alias 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 :
“Normally, 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-inchief,
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.”
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
Rameshbhai Mohanbhai Koli and others vs. State
of Gujarat (AIR 2011 SC (Cri) 120) wherein reiterating
the principle, the Apex Court has stated thus :
“16. 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.”
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.537 OF 2012
Apparao Bahadurrao Ghuge,
- Versus -
State of Maharashtra,
CORAM : A.B. CHAUDHARI AND
P.N. DESHMUKH, JJ.
DATED : JANUARY 28, 2015
Citation: 2016 ALLMR(CRI)2465
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 Rishi Pal vs. State of
Uttarakhan (2013 Cri.L.J. 1534) wherein reference is
made to the case of Bodh Raj alias Bodha and
others vs. State of Jammu and Kashmir {(2002) 8
SCC 45} wherein Apex Court held as under :
“The 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.”
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 :
“I 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.”
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 crossexamination
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 Bhajju alias 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 :
“Normally, 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-inchief,
cross-examination by the prosecutor and
cross-examination by the Counsel for the
accused. It is admissible to use the examinationin-chief
as well as the cross-examination of the
said witness insofar as it supports the case of the
prosecution.”
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
Rameshbhai Mohanbhai Koli and others vs. State
of Gujarat (AIR 2011 SC (Cri) 120) wherein reiterating
the principle, the Apex Court has stated thus :
“16. 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.”
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 Gentela Vijayavardhan
Rao vs. State of A.P. {(1996) 6 SCC 241} wherein it
is held as under :
“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' 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.”
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.
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