Penal Code, 1860 – s.302 – Murder – Deceased was allegedly assaulted with a club – Prosecution case primarily based on evidence of PW5 (deceased’s wife) – Trial court acquitted accused-appellant as well as the co-accused – Acquittal of appellant reversed by High Court – Conviction of appellant challenged – Held: On facts, evidence of PW5 cannot be accepted in full – There were contradictions in PW5’s deposition as regards her having seen appellant at the spot of occurrence – PW5 was not a witness to actual act of assault – As a witness, she did not inspire confidence – No cogent evidence demonstrating that the club seized was used to assault the deceased – Proof of commission of offence by circumstantial evidence of discovery of club- the weapon of assault, not acceptable – Even if prosecution case that accused persons were seen by PWs is accepted, that would be too thin a piece of evidence to convict appellant u/s.302 IPC applying the principle of ‘res gestae’ – The first court of facts (trial court) on appreciation of evidence had acquitted the appellant – No major lacuna in its reasoning which would have warranted interference by the Appeal Court (High Court) for reversing such finding into that of guilt – Acquittal of appellant by trial court accordingly sustained. Evidence – Possible visibility of accused – Relevance of – Murder case – Three PWs deposed to have seen the accused persons at the same location while running away from the place of occurrence – Held: Evidence on whether that location was visible from the spots PWs were at the material point of time, cannot be discarded as being irrelevant.
Evidence – Res Gestae – Murder case – Three PWs deposed to have seen accused-appellant and the co-accused at the same location while running away from the place of occurrence – Held: On facts, even if the two accused persons were so seen by the PWs, that would be too thin a piece of evidence to convict appellant u/s.302 IPC applying the principle of ‘res gestae’ – Doctrines /Principles – Principle of ‘res gestae’ – IPC – s.302. Evidence – Circumstantial Evidence – Discovery of weapon of assault – Murder – Death allegedly caused due to assault with a club – Seizure of club – Effect and relevance of – Held: Club is a common implement which can be found at random in rural households – On facts, there was absence of cogent evidence demonstrating that the club seized was used to assault the deceased – Thus, prosecution story, seeking to establish commission of offence by circumstantial evidence of discovery of club - the weapon of assault, not acceptable.
Allowing the appeal, the Court
HELD : 1. The evidence of PW-5, the deceased’s wife, cannot be accepted in full. There are contradictions in PW-5’s deposition as regards her having seen the Appellant at the spot of occurrence. She stated in her cross-examination that by the time she saw the accused persons, they were in front of the house of Devendrappa. That was the evidence of PW-3 and also PW-6. PW-5’s contradictory statements as regards when and where she saw the appellant and as to whether she saw him committing the act of assault was of significance. In her examination in chief, she deposed that when she opened her eyes on hearing the sound “dhup”, she saw the appellant with a club assaulting on the head of her husband, whereas son of the appellant was standing beside him. But she stated in her cross-examination that by the time she woke up, injury had been caused. She claimed to have had seen the accused in front of Devendrappa’s house. This part of her deposition in her cross-examination was otherwise compatible with rest of her statements made in cross-examination. In this perspective, only one conclusion was possible that she was not a witness to actual act of assault. She is the widow of the deceased victim and deserves to be considered with an element of compassion. But as a witness, she did not inspire confidence. [Para 9][8-E-H; 9-A-B]
2. The Trial Court had found, dealing with evidence of PW5 that from her house, the houses of Hussainamma and Devendrappa were invisible. This was a finding of fact about possible visibility of the appellant, who, as per prosecution version was running away along with his son. The High Court was not right in dismissing the said finding of fact based on evidence being “not of importance” and “irrelevant”. The account of PW-5 having been eyewitness of the incident cannot be believed because of her contradictory statements. Involvement of the appellant, as per prosecution version, appears from him being seen while running away from the place of occurrence by the aforesaid three witnesses at the same location, apart from discovery of the club. Evidence on whether that location was visible from the spots the PW Nos. 3 and 6 were at the material point of time could not be discarded as being irrelevant. [Para 10, 11][9-B-F]
3. The seizure witness (PW-2) stated that the club was not broken. PW-1 had also deposed on spot panchanama made by the police on the morning of 20th April, 1999 from the place of occurrence. He also did not speak of seizure of the broken piece of club. These two prosecution witnesses did not support the statement made by PW-8, the inquest officer in his examination that the latter had seized a small piece of wooden club. The autopsy surgeon (PW-7) was not shown that club. It did not transpire so from his deposition. Club is a common implement which can be found at random in rural households of this country and in absence of any cogent evidence demonstrating that the club seized was used to assault the deceased, the prosecution story seeking to establish commission of the offence by circumstantial evidence of discovery of the weapon of assault failed. [Para 12][9-G-H; 10-A-B]
4. Even if the prosecution version that the PW-3, PW-5 and PW-6 could and did see the appellant running in front of Devendrappa’s house from the respective positions they were in at the time of occurrence of the incident was accepted, the evidence the court would have been left with, would have been two accused persons being seen running away. That would have been too thin piece of evidence to convict someone under Section
302 IPC, applying the principle of res gestae. The first Court of facts on appreciation of evidence had acquitted the appellant. There is no major lacuna in its reasoning which would have warranted interference by the Appeal Court for reversing such finding into that of guilt. The judgment of acquittal of Appellant by the Trial Court is accordingly sustained. [Para 13, 14][10-B-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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