This appeal has been filed by appellant Mahendra alias Mishrigiri against his conviction under Section 302 of the Indian Penal Code and sentence of imprisonment for life passed by the Second Additional Sessions Judge, Indore, vide his judgment dated 25th May, 1972 in Sessions Trial No. 42 of 1972.
2. The brief facts of the case as alleged by the prosecution are that on 18-11-1971 at about 10 or 10-30 p.m. deceased Govindram accompanied by Omprakash (P.W. 1) and Wamanrao (P.W. 2) went to Metro Hotel in Indore City for taking their dinner. On reaching the hotel, they were directed by the proprietor of the hotel, Saidas (P.W. 3), to go on the first floor as there was no room in the hall of the said hotel. Thereupon, all the three went upstairs and there they demanded dinner from Arjunsingh (P.W. 10), hotel-boy, who expressed his inability to supply food as the same was not available at that time. This led to exchange of hot words between Arjunsingh (P.W. 10) and the deceased. At that time, it is alleged, the accused, who was taking his meals in an adjacent cabin, intervened and started siding with the hotel-boy which led to a quarrel between him and the deceased. Apprehending some danger, deceased Govindram rushed down-stair and after going through the Galiyara in back of the staircase of the hotel and the Gali he came out on the main road, while the accused was chasing him with an open knife in his hand. Ultimately, the deceased ran towards the cross-road and after turning to the right when he reached in front of Jai Bharat Lodge he was caught by the accused who gave knife blows on his back, shoulder, head and chest as a result of which Govindram fell down dead on the spot. Munna (P.W. 4) and Annu '(P.W. 5), who were standing on the rickshaws and towards the west of the Metro Hotel across the road, went to see as to what had happened and on their return they narrated the incident to Suresh (P.W. 13), who was also standing with them on the rikshaw-stand, and to Saidas (P.W. 3), proprietor of the hotel. Omprakash (P.W. 1) and Wamanrao (P.W. 2) also went to the spot and found the deceased lying dead. From there both these witnesses went to police-station Sanyogitaganj where Omprakash lodged the first information report (Ex. P-l) naming the accused as the assailant. Dr. R. V. Paliwal (P.W. 11), Chief Medical Officer, M. Y. Hospital, Indore, performed the post-mortem on the dead body of the deceased and found the following injuries on his person:
(After describing the injuries, the Judgment proceeds.)
In his opinion, all these injuries could have been caused by hard and sharp weapon like a knife within 24 hours of the examination. All the injuries, in the opinion of the Doctor, were ante mortem and the cause of death was due to internal haemorrhage and shock as a result of injury No. 1 on the chest to the heart and injury No. 1 was sufficient in the ordinary course of nature to cause death. On these allegations the accused was prosecuted and committed to stand his trial under Section 302 of the Indian Penal Code.
3. In defence, the accused pleaded not guilty and denied having any connection with the alleged offence.
4. There is no manner of doubt that the deceased Govindram died a homicidal death as per the report (Ex. P-13) of Dr. R. V. Paliwal (P.W. 11).
5. The learned Additional Sessions Judge after appreciation of the prosecution evidence was mainly influenced in convicting the accused on the basis of the first information report (Ex. P-1) which was lodged by Omprakash (P.W. 1) soon after the incident naming the accused as the assailant and there was nothing on record to show as to why these witnesses, Omprakash (P.W. 1) and Wamanrao (P.W. 2), would falsely implicate the accused. The learned Judge further relied upon the evidence of res gestae as Omprakash (P.W. 1) and Wamanrao (P.W. 2) have deposed that people were seeing at the spot that it was the accused who had assaulted the deceased. In that view of the matter, the learned Judge held the appellant guilty as stated in the beginning.
6. Learned counsel for the appellant contended before us that the learned Additional Sessions Judge was in error in holding the appellant guilty in the present case as from the evidence of the prosecution witnesses it has not been proved that the one who committed the murder of the deceased, Govindram, was the appellant, that is to say, the identity of the assailant of Govindram could not be established beyond any reasonable doubt and as such the case of the appellant is of a mistaken identity. Besides that, the learned counsel further contended that the evidence of res gestae could not be made applicable in the present case as the necessary ingredients for the acceptance of such evidence are wholly missing. On the other hand, learned Deputy Government Advocate for the State contended that the conviction of the appellant is justified on the evidence on record.
7. The main point on which the decision of this appeal rests is whether the accused-appellant has been correctly identified as the person who quarrelled with the deceased in the hotel, chased him when he ran from there and ultimately killed him on the road in front of Jai Bharat Lodge. The prosecution examined Omprakash (P.W. 1), Wamanrao (P.W, 2), Saidas (P.W. 3), Munna (P.W. 4), Annu (P.W. 5), Arjunsingh (P.W. 10), Suresh (P.W. 13) and Moharsingh (P.W. 14) in support of the identification. We may mention here that except Omprakash (P.W. 1), Wamanrao (P.W. 2) and Saidas (P.W. 3), 'the rest were declared hostile by the prosecution. As regards Saidas (P.W. 3), although the prosecution sought permission of the Court to declare him hostile, but the same was refused. After reading the evidence of the aforementioned prosecution witnesses, there is no manner of doubt that the incident as alleged by the prosecution did take place but the same falls short with regard to the fact that it was the accused-appellant who was the assailant of the deceased.
8-10. (After discussion of the evidence of these witnesses the judgment proceeded;) Thus, we are of the opinion that the prosecution witnesses have failed to identify that the accused was the assailant of the deceased and he must get benefit of doubt.
11. The other point that requires consideration is whether the statements of Omprakash (P.W. 1) and Wamanrao (P.W. 2) that people on the spot were saying it was Mahendra Thakur (accused) who had assaulted the deceased are admissible in evidence under Section 6 of the Evidence Act as the trial Court has also relied upon the part of the evidence of the aforesaid witnesses for holding the appellant guilty. In our opinion, the trial Court was in error in treating their evidence as admissible. Section 6 with illustration (a) of the Evidence Act runs as follows:
S. 6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustration (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
A reading of Section 6 with illustration (a) thereto, shows that spontaneous statements in the course of the transaction are admissible as being res gestae, But from this it cannot be said that all spontaneous statements in some way connected with the transaction under investigation are admissible. What is admissible is a fact which is connected with the fact in issue as 'part of the transaction'. Thus, according to the aforementioned illustration the spontaneous statement of a by-stander is admissible. The word 'by-stander' has been explained in Nasir Din v. Emperor AIR 1945 Lah 46 : (46 Cri LJ 431) as under:
In our opinion the word 'by-standers' means the persons who are present at the time of the beating and not the persons who gather on the spot after the beating. Accordingly only the statements made by the persons who witnessed Fakiria's murder could be proved, but Mt. Aishan Bibi said that the remark that she heard was made by people whom she1 found on the scene on her arrival. She did not say that these persons included Shadi Lal and the other witnesses. The remark made by persons other than the eye-witnesses could only be hearsay, because they must have picked up the news from others....
In Hadu v. The State : AIR1951Ori53 . a Division Bench of the Orissa High Court has explained Section 6 of the Evidence Act as under :
According to Section 6 what is admissible is a fact which is connected with the fact in issue as 'part of the transaction'.
A transaction may consist of a single incident occupying a few minutes or it may be spread over a variety of facts etc. Occupying a much longer time and occurring on different occasions or at different places'. (See Sircar on Evidence p. 54). Where the transaction consists of different acts, in order that the chain of such acts may constitute the same transaction, they must be connected together by proximity of time, proximity or unity of place, continuity of .action and community of purpose or design. (See Amrita Lai v Emperor AIR 1916 Cal 188 at p. 196 : (16 Cri LJ 497)). Hearsay statements to be admissible as substantive evidence of the truth of the facts stated therein must themselves be 'part of the transaction' and not merely uttered in the course of the transaction. Where the transaction is a single incident, a statement by a person who was perceiving the incident made simultaneously with the occurrence of the incident, may, with justification, be said to be part of the transaction inasmuch as it is the result of a spontaneous psychological reaction through perception. If 'A' assaults 'B' in the neck with a knife and this is seen by a by-stander who exclaims 'A' is killing 'B' the exclamation is as much a part of the transaction of murder as the gushing out of the blood from the wound inflicted on the neck with the only difference that the wound inflicted is a physical reaction to the act and the other is the psychological reaction through perception. While no doubt the spontaneity of the statement is the guarantee of the truth, the reasons for its admissibility under Section 6 is that it is a part of the transaction and not merely because it is spontaneous. It must further be noted that the statement as that in Illus. 'A' to Section 6 is relevant only if it is that of a person who has seen the actual occurrence and who uttered it simultaneously with the incident or so soon thereafter as to make it reasonably certain that the speaker is still under the stress of the excitement caused by his having seen the incident....
A similar view of the evidence of res gestae has been taken in Kashmira Singh v. State AIR 1965 J & K. 37 : (1965 (1) Cri LJ 554).
12. We are fully in agreement with the views expressed in the aforementioned decisions regarding the admis-sibility of evidence under Section 6 of the Evidence Act. in the present case, Omorakash (P.W. 1) and Wamanrao (P.W. 2) have admitted that they reached the spot after the actual occurrence was over and did not see it with their own eyes. There is no indication in the case at all that the people who made the statement that the accused assaulted the deceased had actually witnessed the murder or no substantial time had elapsed between the occurrence of the murder and making of the statement sooken to by the people. Even the said statement cannot be considered in any manner to be a part of the same transaction. Thus, the statements of the people at the spot heard by Omprakash (P.W. 1) and Wamanrao (P.W. 2), in our opinion, are inadmissible in evidence that is to say, the statements cannot form part of res gestae so as to be admissible under Section 6 of the Evidence Act.
13. No doubt, it is rather unfortunate that an offence of the kind is to go unpunished, but the Court can only take into consideration the legal evidence. Since in the present case such evidence is not sufficient to hold the accused-appellant guilty, we have to allow the appeal.
14. For the reasons stated this appeal is allowed. The conviction and sentence of the accused-appellant under Section 302 of the Indian Penal Code, are set aside and he is acquitted. He shall be set at liberty forthwith if not required to be detained in some other matter.
Conviction and sentence set aside.