M D BHATT Vs. STATE OF M P

JUDGEMENT

(1.) By this judgment Criminal Appeal No. 886 of 1961 (Mst. Sarojranl alias Tarabai v. State of M. P. is also disposed of as both these appeals arise out of the same Sessions Trial.

(2.) The two appellants have been convicted under Section 302/34 Indian Penal Code and each sentenced to imprisonment for life for committing murder of Laxminarayan on the night intervening 14th and 15th October 1980. Appellant Sarojrani is the widow of deceased Laxminarayan. They were living in the house of appellant Lakhoo as a tenant in Ward No.3, Darnoh. The other portion was in occupation of the deceased. The deceased and appellant Lakhoo were habitual drinkers. Sarojrani developed illicit relationship with Lakhoo. So there used to be frequent quarrels between the deceased and Lakhoo, who used to beat Sarojrani. On the night of 14th and 15th October, 1980 the deceased came drunk, beat Sarojrani with a Chimta and then abused Lakhoo. Thereafter he slept in his room. It is alleged that in the night he was strangulated to death by both these appellants. On the next day morning Lakhoo lodged a report about the death of the deceased. A Morgue intimation was prepared and the dead body was sent for post mortem examination. Dr. J.P. Mishra (P.W. 2) held autopsy and found multiple ante-mortem injuries and opined that the cause of death was asphyxia as a result of throttling. So an offence under Section 302 Indian Penal Code was registered by Station Officer V. K. Dube (P. W. 17) vide Ex. P-17. On completing the investigation the two appellants were chargesheeted. Their defence was of denial and they took the plea of alibi, Lakhoo contending that he bad gone out of Damob on that night and Sarojrani stated that she has in the Rail way Station throughout the night. The learned Sessions Judge relying on the circumstantial evidence on record convicted both these appellants.

(3.) The circumstances found against the appellents are: (1) the Lakhoo had illicit relationship with Sarojrani and there was motive for doing away the deceased; (ij) on that night Sarojrani was in the house and Lakhoo was seen near about and they bad taken a false plea of alibi; (iii) in the morning the appellants wanted to cremate the dead body in order to cover up the crime; and (iv) the statement of Rajesh Kumar (P.W. 9) who was told by his younger sister Asha Kumari (P. W. 8), both being son and daughter of deceased, that these two appellants had strangulated the deceased to death. It could be said that the first three circumstances have been proved beyond doubt, but according to us, the evidence of Rajesh Kumar is not admissible it being hearsay. There were two eye witnesses in the case Asha Kumari (P. W. 8), a girl aged 11 to 12 years and her younger sister Meena aged 10 years. Asha Kumari turned hostile and resiled from her case diary statement, while Meena was given up having turned hostile. So, there is no evidence to prove throttling of the deceased by these appellants. The Sessions Judge was in error in relying on the statement of Rajesh Kumar (P.W. 9) under Section 157 of the Evidence Act by wrongly relying on a decision of the Supreme Court in Ramratan v. State of Rajasthan1. The proposition laid down in that case is that firstly the witness should have given testimony with respect to some fact and secondly he should have made a statement earlier with respect to the same fact at or about the time when the fact took place. There is nothing in Section 157 which requires that before tbCi corroborating witness deposes to the former statement the witness to be corroborated must also say in his testimony in Court that he had made the former statement to the witness who is -corroborating him. This has no application here because Asha Kumari (P.W. 8) has not given a statement in Court that she bad witnessed the crime. If that was her statement then the same could have been corroborated by the evidence of Rajesh Kumar (P.W. 9) under Section 157 of the Evidence Act, even though she had not mentioned that she had narrated the incident to Rajesh Kumar also. So, if this witness is excluded, the link in the chain of circumstantial evidence is broken and the possibility of the deceased being killed by some one else cannot be ruled out.