S.M.N. Raina, J.
1. Appellants Pratapsicgh and Janved have been convicted and sentenced to imprisonment for life Under Section 302 read with Section 34, Penal Code by the First Additional Sessions Judge, Bhind. They have, therefore preferred this appeal against their conviction and sentences.
2. Appellant Pratapsingh is the husband of Mst, Mahadevi (P.W. 10.) Appellant Janved is her brother. Pratapsing was residing in Kaharan-ka-Mohalla at Bhind while Janved is a resident of village Kaharanka pura about 6 to 7 miles from Bhind, Deceased Ramcbaran sweeper was also a resident of Bhind.
3. The case of the prosecution is that on account of liason between Mst. Mahadevi (P, W. 10) wife of appellant Pratapsingh and the deceased Bamoharan both the appellants committed the murder of Ramcharan in the house of Pratap on the 11th April 1967 at about 10 P. M. and thereafter ran away leaving the dead body in the house. Head-Constable Barfraj Beg (P.W. 1) who happend to pass by the house soon after this incident was inform, ed by Mat. Mahadevi that her husband and brother had run away after committing the murder. He, therefore, lodged the report Ex. P. 1 at the Police Station at 10.85 P. M., on the same night. On receiving this report Rule 8. Sharma 8. 0. (P.W. 21) proceeded to the spot and reoorded the inquest report Ex. P. 21 after holding an inquest. The dead. body was then sent to Civil Hospital Bhind for post-mortem examination. Dr. S.S. Sharma (P.W. 7) performed the autopsy. He found a number of incised -wounds on the person of the deceased some of which were on the face and the neck. The atlas vertebra of the neck was cut through and through and the spinal oord was severed. In the opinion of the Doctor the death was due to the said injuries which were sufficient in the ordinary course of nature to cause death. He further opined that these injuries could be caused by the ssvord Article 'A.'
4. B. L. Tripathi (P.W. 16) who was then attached to the Kotwali Bhind and had ac. companied R S. Sharma 8. 0. (P.W. 21) inspected the spot on 12-4.67 in accordance with the directions of Sharma. He prepared the map Ex. P. 2 and seize blood stained earth from the spot No. 3 as shown in the map. He also seized a broken Barchhi, two broken teeth aoiled with blood and a sword (Article A) from the spot No. 16 aud certain other articles under Seizure Memo Exs. P. 3, P. 9. Both the appellants were tried on a charge Under Section 302 read with Section 34, Penal Code. They abjured their guilt and their defence was that they were not at the spot at the time of occurrence.
5. From the medical evidence as well as other evidence on record it is clear that the deceased Ramcbaran was done to death with a Bharp edged weapon like a sword at the time of this occurrence, It ia not necessary to refer to the evidence on this point beoauae it has not been questioned by the learned cousel for the appellants. The main point for consideration, therefore, ia whether the appellants were responsible for causing the death of the deoeas-ed Ramcharan.
6. Unfortunately there ia no direct evidence on this point because the only eye-witness, namely, Mat. Mahadevi (P.W. 10) turned hostile and did not support the case of the prosecution. The case, therefore, rests mainly on circumstantial evidence. One of the impor-tant circumstances relied upon by the prosecution is that the dead-body of the deceased was found inside the house of the appellant Pratap. On this point we have the evidence of Sarfraj Beg (P.W. 1), Chimman (P.W. 5) brother of the deceased, Chhabu (P.W. 6), Harvilas (P.W. 9) and Rule 8. Sharma (P.W. 21) 8. 0. Bhind. According to all these witnesses the dead body was lying in the house of Pratap.
7. It would be pertinent to mention here that a number of witnesses namely, Ga,nga-charan (P.W. 2), Ghasiram (P.W. 3), Raghu-ver (P.W. 4), Nathu (P.W. 11), Cbhidi (P.W. 17) and Gendalal (P.W. 18) testified that the dead body was ljing outside the houae near a Nallah and not in the house of Pratap. These witnesses were declared hostile by the prosecution and cross-examined with reference to their statements before the Police. Their testimony has been rejected by the trial Court for good reasons. It is obvious that they tried to distort facts in order to exonerate the appellants. We are somewhat surprised that even Sim Dilipsingh (P.W. 12) who is an Advocate having criminal praotioe alao tried to suggest that the dead body was not lying inside the house of Pratap by saying that some body had telephoned from his house that night that a dead body was lying in the open. He too was deolared hostile by the prosecution and cross-examined. In his statement to. the Police vide Ex. P. 17 Dilipsingh had supported the prosecution version that the murder took plaoe inside the house of Pratap but he resiled from this statement in Court. It ia regretted that a lawyer should have tried to distort facts in a murder oase apparently with some ulterior motive. A lawyer is expected to assist the Court in administering justioe and not to misguide it by making false statements, We cannot, therefore, but depreoate the conduct of Shri Dilipsingh in this case.
8. The evidence of Sarfraj Beg (P.W. 1) Chimman Lai (P.W. 5) and others who teati-fied that the dead body was lying inside the house haa been believed by the trial Court for good reasons. We, therefore, find that it has been abundantly proved in this oase that the dead body of the deceased Ramoharan was found lying inside the house of the appellant Pratap.
9. Another circumstance relied upon by the prosecution is that when Sarfraj Beg (P.W.I) passed by the house of appellant Pratap he was informed by Mst. Mahadevi (P.W. 10) that her husband and brother i. e. the two ap. pellants had run away after committing the murder. Mst. Mahadevi (P.W. 10) denied having made any such statement and she did not support the case of the prosecution that the murder wag committed by the appellant. The question for consideration ia whether tht statement made by Mst. Mahadevi to Sarfraj Beg (P.W. 1) is admissible in evidence. It could be admitted either Under Section 6 of the Evidence Act as a substantive piece of evidence or Under Section 157 of the Evidence Act for corroborating Mat. Mahadevi. As Mahadevi .has turned hostile and does not say that tht appellants committed the murder, her previous statement in question cannot be used for oorroboration Under Section 157. The principle underlying the rule of oorroboration is that he who is consistent deserves to be believed. Therefore, where a witness does not support the case of the prosecution at' the trial there can be no question of using any earlier statement made by him in favour of the prosecution for purpose of conoboration. It ia, therefore, clear that the statement is not admissible Under Section 157 of the Evidence Act.
10. The statement does not also appear to be admissible Under Section 6 of the Evidence Act. It has been urged that the statement is admissible in view of Illustration (a) to the said Section. According to the Illustration where A is accused of the murder of B by beating him, whatever was said or done by A or B to the by-standers at the beating, or so shortly before or after it as to form part of the transao. tion is a relevant fact.
11. Section 6 of the Evidence Act and some of the succeeding Sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exceptions to 'heresay' rule. Sec tion 6 permits proof of collateral statements which are so connected with the facts in issue as to form pait of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontane. ous reaction thereof, there being no opportu-nity for deliberately fabricating the statement. |ln other words the statement which is a part-of res gastae does not narrate a past event, but lit is the event itself speaking through a per. [son thus excluding the possibility of any 'design behind it.
12. In Chhotkav. State A.I.R. 1958 Cal 482 it held that the requirement of Section 6 is that the statement must have been made contemporaneously with the act or immediately after it and not at such an interval of time as to make it a narrative of past events or to allow time for fabrication. We agree with this view.
13. In the instant case the statement of Ms. Mahadevi in question does not at all appear to be spontaneous, and appears to have been made some time after the incident in answer to a querry. Sarfraj Beg (P.W. 1) testified that at about 10 or 10.15 P. M. that night he heard some row from his house whioh is at a distance of about 403 yards from the house of appellant: Pratap. He says that he went towards the house of Fratap neac whioh a large crowd had collected. On going inside the house he found a dead body lying with fresh wounds from a sword. According to him Mst. Mahadevi (P.W. 10) wife of the appellant Pratap was there and when she was questioned about the murder she stated that her husband and brother had run away after committing the murder. As the statement was in answer to a querry and was made after a lapse of some time after the murder it oannot be treated either as spontaneous or as part of the transaction of the murder. If no one had asked her how it happened perhaps she would not have made any statement at all. We, therefore, hold that the statement made by Mst. Mahadevi to Sarfraj Beg (P.W. 1) ia noV admissible in evidence Under Section 6 and as ewk has got to be excluded from consideration.
14. Another pieae of evidence relied upon by the prosecution is that both the appellants were seen running away at some distance from the house of the appellant Pratap that night. The main witness on this point is Jomdarsingh (P.W. 2). He is resident of Mauza Shukal-ka-pura which is about 20 miles from the spot of occurrence. According to this witness when he happened to go to Bhind that night he saw the appellant running away at night and when he went abend he found a large number of people gathered near the house of the appellant and people were saying that a murder had been committed. The testimony of thia witness has been assailed on a number of grounds, It has been urged that his assertion that he knew the appellants prior to this occurrence is not true and the reasons given by him te account for his presence in the village are also not convincing.
15. According to Jomdarsingh (P.W. 20) be had gone to viillage Bara on the day of occurrence and met Raghuvir elder brother of Satindra that day. To contradict him on this point the defence examined Ranvbsingh (D. W. 1) who testified that Satindra has no brother named Raghuvir. Jomdarsingh had also stated that about two months prior to this occurrence ,he had seen the appellant Pratap in Mouza Nunheta in the house of one Indal. The reason for visiting that.vill -age as given by him was that he had gone to see Satyanarayan who was a candidate at the election. Sultansingh Bhadoria (P.W. 5) the election Supervisor, however, testified that Satya Narayan had withdrawn from the election on 23-1-67 i.e. about two and a half months prior to this occurrence.
16. We need not consider in detail the varioua grounds on which the testimony of this witness has been assailed. He is apparently a chance witness and even if his testimony accepted it does not advance the Case of the prosecution much. The most important point to be determined in this case ia whether both these appellants were present in the house when this murder took place. On this point there is no evidence. The mere fact that they were seen some time after this occurrence running away may give rise to some suspicion againat them, but would not conclusively establish their pre. genoe when this incident took plaoe.
17. Another piece of evidence relied upon by the prosecution is about recovery of shirt Article E at the instance of appellant Janved and a bush shirt Article F at the instance of appellant Pratap. The witnesses on this point are E. S. Sharma (P.W. 21), Haroharan (P.W. 19), Abhilakhsingh (P.W. 13). According to these witnesses the two appellants had made separate statements regarding these articles vide Ex. P. 24 and Ex. P. 25 and the appellant Pratap produced a bush shirt which was seized from him under Seizure memo Ex. P-9 while the appellant Janved produced a shirt wnioh was Beized from him under Seizure memo Ex. P-18. Both these clothes were found to be stained with human blood vide reports of the Chemical Examiner and Serologist Ess. P-27 and P. 28.
18. The learned Counsel for the appellant impeaohed the evidence relating to th'e re-covery of these clothes by the appsllant and pointed out various discrepancies in the statements of the witnesses but even if this evidence ia accepted it is not of much consequence because it hag not been established by any independent evidence that these clothes belong to the appellants and were on their person at the time of the occurrence. The mere fact that the appellants produced oertain clothea which were found to be stained with human blood cannot lead to the conclusion that they were associated with this murder.
19. The next piece of evidence against the appellants is about motive, Prom the'.evidence of Chimman (P.W. 5), Harvilas (P.W. 9) it appears that there was illicit relationship between Mat. Mahadevi (P.W. 10) and ths deceased but motive by itself cannot give rise to an inference of guilt. It can only ba considered along with other ireumstitna.
20. To sum up the evidence against the appellants oonsisfcs of the fact that the doad-body of the deceased waa found in the house of the appellant Pratap; they were seen running away some time after this occurrence and bloodstained clothes were recovered at their instance. Apart from this there also appears to be a motive for the appellants to commit this crime but in our view these circumstances, though they give rise to a good deal of sua. picion against the appellants are not sufficient to establish their guilt. As pointed out above it has not been established that the appellants were in the house when this murder was committed. The evidence shows that Mst. Mahadevi (P.W.'IO) and father of Pratap were there at that time. It furthar appears that only the sword was used for the commission of the murder because the Barchhi that waa found near the dead body was not stained with human blood. It, therefore, follows that only one person committed the murder. In these circumstances, it is not possible to arrive at any definite conclusion that this murder waa committed by the appellants particularly because the father of the appellant Pratap was in the house -at the material time and ha could as well have a motive for committing this murder, if he happened to find Met. Mahadevi in a compromising position with tin deceased. The fact that the appellants were seen running away soon after the occurrence may be due to fear of being implicated in this crime. It is difficult on the baaiBtof the circumstances on record to reach any definite conclusion that this murder was committed by the appellants. Moreover, as pointed out above it has not been established by the evidence on record that both the appellants were inside the house when this murder took place. Thus after careful consideration of the entire evidence on record ,we find that it has not been established beyond reasonable doubt that both the appellants or either of them committed this murder. They are, therefore, entitled to be acquitted.
21. It is unfortunate that a brutal murder like this should go unpunished but unfortunately a number of witnesses turned hostilo and the legal evidence that remains on reoord is not sufficient for basing a conclusion of guilt.
22. The appeal, therefore, is allowed and the conviction and sentences of both the appellants are hereby set aside. They shall be set at liberty forthwith unless they are required in connection with some other case.