Barjiya vs State of M.P.

I.S. Shrivastava, J.—This appeal has been preferred by the appellant being aggrieved by the judgment dated 10.01.2001 passed by the Court of Shri A.R.Dhruv, Additional Sessions Judge, Sendhwa, West Nimad in S.T.No. 84/ 2000, by which the appellant Barjiya has been convicted u/s 302 of the IPC and sentenced to life imprisonment with fine of Rs. 1,000/-. According to the prosecution case, on 27.08.1999 Jadiya along with Sarpanch Pohalsingh and Kalsingh lodged the report that in the night, at about 9.00 p.m., he was sleeping at his house and on hearing the cries of his brother Aapsingh and the children of Barjiya that "mar diya mar diya", he reached the house of Aapsingh and found Barjiya was caught hold by Aapsingh. He told him that Barjiya has murdered his wife Kalibai by assaulting with an axe on her head, thigh and hand. The dead body was lying inside the house. Pinta the daughter of Barjiya told that Barjiya assaulted her younger brother, on which her mother objected, on this point accused Barjiya rushed with axe on his mother, then Pinta and her mother ran towards the house of her uncle. There Barjiya assaulted and killed her mother. Thereafter Sarpanch Pohalsingh was called and he was informed with the incident and thereafter the report was lodged. Hence, on report Crime No. 122/99 u/s 302 of the IPC was registered at Police Station Pansemal, District Badwani and after investigation challan was filed. After trial the appellant has been convicted as mentioned above.

It has been argued by the Counsel for the appellant that he has been falsely implicated in this case. The independent witnesses Jadiya (PW-3), Mohansingh (PW-4) and Bachcha (PW-5) did not support the prosecution case. Aapsingh (PW-1) and Dedubai (PW-6) were not the eye witness but they reached on the spot after hearing the noise but the Trial Court has believed them erroneously. The Court has relied on the statement of Pinta (PW-2) while her statement was not supported by any independent witness. There were serious omissions and contradictions in the prosecution evidence, hence the appeal should be allowed.

It has been argued by the Counsel for the respondent that the appellant was rightly convicted by the Trial Court on the basis of the evidence produced by the prosecution. The incident was witnessed by Pinta (PW-2), the daughter of the deceased. The other witnesses Aapsingh (PW-1), Dedubai (PW-6) and Bachcha (PW-5) are the eye witnesses of the incident, hence the case was proved. This appeal should be dismissed being devoid of merit.

Considered the circumstances and record of the Trial Court perused. According to Pinta (PW-2) accused is her father and deceased Kalibai was her mother. On the date of incident her father assaulted her mother by axe on her head at the house of Aapsingh. On her cries her Kaka Aapsingh reached there and snatched the axe from his hands. Her mother sustained bleeding injury in her head due to which she died. Her father beat Bahaduriya due to which there was a quarrel, due to which the accused assaulted her mother. In crossexamination, she deposed that the house of her Kaka Aapsingh is near to her house. In the morning her father assaulted Bahaduriya. Her mother and father used to quarrel with each other. At the time of the incident her father assaulted her mother at the house of her Kaka Aapsingh, at that time she was present there. This incident took place at about 9.00 p.m.

Aapsingh (PW-1) supporting the statement of Pinta (PW-2) deposed that accused is his brother and deceased Kalibai was his sister-in- law. On the date of incident he was sleeping in his house. On the cries of Pinta (PW-2) he awoke and saw Kalibai was lying dead in front of his house. Accused Barjiya assaulted his wife with an axe on her head due to which she sustained bleeding injury on her head and due to which she fell down. Jadiya was also there. They caught the accused Barjiya. In cross-examination, he deposed that he snatched the axe from the hands of accused and he handed over the axe to police. Accused was running from there, then he chased him.

Jadiya (PW-3) deposed in this respect that accused is his brother and deceased Kalibai was his sister-in-law. On the date of incident, at about 9.00 p.m., he was sleeping at his house and on hearing the cries he reached on the spot and saw the dead body of Kalibai. Kailash, Bachcha, Aapsingh and Pintabai all were present there. Pinta and Aapsingh told that Barjiya has killed Kalibai. In cross-examination, he deposed that the house of Barjiya and Aapsingh are adjacent to each other and Pinta told him the incident. At that time, Mohansingh was also present there. He saw that Aapsingh was standing caught hold of Barjiya. He saw the dead body of deceased Kalibai. Pintabai was crying that her father has killed her mother.

Mohansingh (PW-4) deposed in this respect that, at about 9.00 p.m., he was at his field and on the cries of children he reached at the house of Barjiya and then went to the house of Aapsingh. There he saw the dead body of Kalibai. Kailash told him that Barjiya killed his wife. At that time, Barjiya was out of the house.

Bachcha (PW-5) son of Aapsingh (PW-1) deposed that on the date of incident accused Barjiya killed his wife Kalibai. On the cries of Pinta he saw the dead body. Though this witness has been declared hostile but he has deposed that on the voice of weeping he awoke and saw the dead body of Kalibai lying near the door. This is correct to say that his father caught Barjiya and snatched the axe from him.

Dedubai (PW-6), wife of Aapsingh (PW-1) deposed that accused is his Jeth (elder brother of her husband). At the time of incident, she was sleeping. Pinta was also there. Kalibai came there and Barjiya came with axe and he assaulted by axe on the head of Kalibai due to which she sustained bleeding injury and died. Her husband Aapsingh caught Barjiya. In cross-examination, she deposed that there is only one room in her house where they were sleeping. At the time of incident, she was sleeping and on hearing the noise she awoke and saw that Kalibai was lying dead at the door and thereafter she started weeping. On specific question, she deposed that she saw the accused assaulting Kalibai. Accused assaulted Kalibai by axe.

It has been argued by the Counsel for the appellant in this respect hat all the witnesses are not the eye witnesses because they reached immediately on the spot after the incident and they deposed that they saw Kalibai in dead condition, hence, their evidence is not reliable to the fact that appellant killed Kalibai.

Considered the arguments. From the spot map (Ex.P/5) it is clear that the murder took place at the house of Aapsingh (PW-1). Dedubai (PW-6) is his wife and Bachcha (PW-5) in his son and there presence is very natural. Just after the incident Jadiya (PW-3) and Mohansingh (PW-4) reached on the spot and they gathered the information from Pinta and Aapsingh that accused assaulted and murdered Kalibai. Though they are not the eye witnesses of the incident but they reached the spot immediately after the incident and learnt from Pinta and Aapsingh that accused has murdered Kalibai, therefore, the statement of these witnesses is admissible in evidence according to Section 6 of the Evidence Act.

The 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 this section, 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 statement sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter.

In the case of Sukhar Vs. State of Uttar Pradesh, it was held that,

Para 6

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. The aforesaid rule as it is stated in Wigmore''s Evidence Act reads thus :

Under the present exception (to hearsay) an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued.

Para 7

Sarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus:

The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.

The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.

The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and by-standers. In conspiracy, riot & c the declarations of all concerned in the common object are admissible.

Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated.

Para 8

This Court in Gentela Vijayavardhan Rao and another Vs. State of Andhra Pradesh, considering the law embodied in Section 6 of the Evidence Act held thus (Para 15 of AIR SCW, AIR & Cri. LJ) :

The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, in exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible u/s 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.

Para 10

Applying the ratio of the aforesaid two cases to the evidence of PW-2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible u/s 6 of the Evidence Act.

In the case of Bishna @ Bhiswadeb Mahato and Others Vs. State of West Bengal, it was held that, "where the witnesses came to place of occurrence immediately after the incident had taken place and found the dead body of deceased and other injured victim in unconscious state also found the mother of the deceased weeping as also injured witness present there, they heard about entire incident from injured and other witnesses including role played by each of the accused and others. The evidence of said witnesses corroborate evidence of prosecution witnesses as also allegations made in the FIR, was held to be admissible in evidence in terms of Section 6 of the Evidence Act."

Therefore, in this case the evidence of all such above witnesses is admissible in evidence and therefore, it was proved that accused appellant Barjiya killed his wife Kalibai.

Dr. Durgasingh Chouhan (PW-8) conducted the postmortem of deceased Kalibai wife of Barjiya on 28.08.1999 and gave the postmortem report (Ex.P/15). He found incised wound 4"x1" deep upto brain on the mid parietal region on head and one incised wound 31/2"x 11/2" deep upto brain at the left parietal region on head and one incised wound 4"x2"x3" deep oval shaped on right inguinal region on thigh deep to vessels and muscles, deformity in left mid 1/3 forearm, fracture of both radius and ulna bone. According to his opinion the cause of death was, incised wound on the head and right thigh, the injuries were ante-mortem and homicidal in nature, therefore, the statement of witnesses was also supported by the medical evidence.

It has been argued by learned Counsel for the appellant that the axe was not produced in evidence, hence it was not proved that the appellant assaulted his wife by the seized axe. In reply it has been argued by the prosecution that there is direct evidence of the incident. The seizure memo was proved from the statement of the Investigating Officer Dharamveer Singh Chouhan (PW-7).

Considered the arguments. Dharamveer Singh Chouhan (PW-7), the Investigating Officer has deposed that on the production of axe by Aapsingh he seized it by seizure memo (Ex.P/7). Aapsingh (PW-1) in this respect has deposed that he handed over the axe to police and he put his thumb impression on the seizure memo. In cross-examination, he has deposed that he told the police that by this axe the accused assaulted Kalibai. When police came to his house, he handed over the axe at that time to police. This fact is mentioned in the seizure memo (Ex.P/7) that at the house of Aapsingh he handed over the axe to police which was seized by the police. Therefore, the seizure memo (Ex.P/7) was proved from the prosecution evidence. The fact remains that the axe was not produced at the time of the evidence and its blood grouping was not examined. But in the case of Pradumansinh Kalubha Vs. State of Gujarat, , it has been held that, "in case where there is direct evidence, the absence of blood on weapon of offence or even the non-seizure of weapon of offence is of no consequence." Therefore, in this case non-production of axe in the evidence is of no value because there is direct and reliable evidence against the appellant.

Therefore, on the basis of the above discussion we reached to the conclusion that it was proved from the evidence produced before the Trial Court that the appellant Barjiya has murdered his wife, hence this appeal is devoid of merit. Therefore, on the basis of the above discussion this appeal is disallowed accordingly.