Jagarnath Maharana vs The State of Bihar

R.A. Sharma, J.—The sole appellant has filed this appeal from jail challenging the judgment dated 23.8.90 of the 2nd Addl. Sessions Judge, Singhbhum at Chaibasa, in S.T. No. 68 of 1988 convicting and sentencing him to life imprisonment u/s 302 I.P.C. The prosecution case is that on 23.9.87 at about 10.00 a.m. the appellant killed his wife, Fulo Devi, with Tangi while she was cooking food and also hit with the stick his mother-in-law, Mukta Devi, while she was trying to protect her daughter causing injury to her. The reason for the murder of his wife by the appellant is said to be the quarrel between them. An information in writing of the incident by one Sudhdeo Munda of the same village was given to the police station at about 8.00 p.m., on the basis of which a formal F.I.R. was drawn up. After investigation, chargesheet u/s 302 and 323 I.P.C. was submitted against the appellant before the Chief Judicial Magistrate, Chaibasa, who took cognizance of the offence and committed the case to the court of session.

Before the trial court, the prosecution produced five witnesses. P.W.1, Lal Mohan Maharana, is the brother of the deceased, Fulo Devi, who has stated in his testimony before the trial court that on 23.9.87 at the time of the incident he was working on his field and when he reached home at about 11.00 a.m. he found bleeding injuries on the head of his mother and on enquiry his mother told him that his brother-in-law (appellant) has killed his sister (Fulo Devi) with Tangi and when she wanted to protect her daughter, she was also hit by the appellants with a stick causing injury to her. This P.W. has further stated that he informed the Munda of the village about the incident who sent a written information to the police station on the same day. From perusal of his evidence it is clear that this witness is not an eye-witness. He has not seen Fulo Devi being attacked or killed by the appellant. In fact, he came after about one hour of the incident and the source of his information is his mother who is alleged to have told him about the murder of his sister by the appellant. Same is the position of Sukhdeo Sawaiyan, P.W.2, who, after he had learnt about the death of Fulo Devi from Lal Mohan Maharana (P.W.1), visited the house where the dead body of Fulo Devi was lying and there he was told by the deceased''s mother, Mukta Devi, that Fulo Devi was killed by the appellant. He has also not seen the incident and is not an eye-witness. P.W.3 is the Medical Officer who has conducted the post-mortem examination on the dead body of Fulo Devi. P.W.4, Asgar Ali Ansari, is the Officer-in-charge of the police station who visited the spot and prepared the inquest report. P.W.5 is the constable Anil Khalka who along with another constable brought the dead body of Fulo Devi to the Sadar Hospital for post mortem examination.

It is apparent that none of the RWs. is an eye-witness of the incident, as none of them has seen the murder of Fulo Devi being committed by the appellant. Even the informant is not an eye-witness. According to the prosecution, the only eye-witness was Mukta Devi, the mother of the deceased, but she was not produced as P.W. The Trial court, in the impugned judgment, has observed that Mukta Devi could not be produced in the court as prosecution witness because of her illness. But if she was ill, she could have been examined on commission. But that was not done. There is also no explanation and reason given by the prosecution for not examining her on commission. Be that as it may, the fact remains that, according to the prosecution, there was only one eye-witness (Mukta Devi) of the incident, but she was not produced as P.W. and all other witnesses who were produced were not eyewitness. Their testimony is purely hearsay being based on the statement of Mukta Devi. Whether what Mukta Devi stated was or was not true could have been tested only on her examiantion as P.W. But as mentioned above, she was not produced as witness by the prosecution.

Section 60 of the Evidence Act, the relevant portion of which is reproduced below, mandates that the oral evidence must be direct:�

Oral Evidence must be direct.� Oral evidence must, in all cases whatever, be direct, that is to say�

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. ...

It is well settled that no person can be convicted on the basis of hearsay evidence. Evidence is hearsay when it is based on information given by somebody else. In J.D. Jain Vs. Management of State Bank of India and another, , the Apex Court, while dealing with hearsay evidence, has held us under :�

...The word ''hearsay'' is used in various senses. Sometimes it means whatever a person is heard to say sometimes it means whatever a person declares on information given by someone else. (See Stephen on Law of Evidence).

The Privy Council in the case of Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 observed; "Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible where it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made."

The same views have been reiterated in Vijender and Others Vs. State of Delhi, and Balram Prasad Agrawal Vs. State of Bihar and others, .

The trial court although acquitted the appellant of the offence u/s 323 I.P.C. on the ground that there is no medical evidence to show that Mukta Devi, the mother of the deceased, has sustained any injury but it has convicted and sentenced him to life imprisonment u/s 302 I.P.C. relying on the testimony of P.Ws. 1 and 2 whose evidence is purely hearsay, although; according to the prosecution, there was an eye-witness (Mukta Devi) but she was not produced as P.W. In this connection, the trial court has observed as follows :�

...In my opinion, the accused Jagernath Maharana should not feel to be prejudiced due to non-examination of Mukta Devi in the present Sessions Trial because there are witnesses P.Ws. 1 and 2 who had immediately came at the P.O. and knew from Mukta Devi that accused Jagernath Maharana had killed his wife with Tangi at the alleged hour of occurrence and they had directly heard from Mukta Devi and also found that the accused Jagernath Maharana had fled away from the house after killing his wife Fulo Devi. ...

The trial court has convicted the appellant on hearsay evidence holding that there is no prejudice to the appellant by non-production of Mukta Devi as P.W. It is not a question of prejudice. The question involved is as to whether the prosecution has proved the guilt of the appellant beyond reasonable doubt. The prosecution has failed to do so. In the absence of any eye-witness of the incident, the appellant could not have been convicted on the basis of hearsay evidence of P.Ws. 1 and 2.

While holding the appellant as guilty of committing murder, the trial court has also made passing observations to the effect that the arrest of the appellant from a house of another person where he was sleeping is "a strong circumstantial evidence" against him for killing his wife. The fact that the appellant was arrested from a different house by itself cannot be a ground for recording conviction u/s 302 I.P.C. against him although it may be a ground creating suspicion but suspicion cannot be a substitute of legal evidence. In this connection, reference may be made to Bhugdomal Gangaram and Others Vs. State of Gujarat, .

The Apex Court in Ashok Kumar Chatterjee Vs. State of M.P., has laid down that in order to sustain the conviction on the basis of circumstantial evidence, such evidence must satisfy the following tests:�

(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and

(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Gambhir Vs. State of Maharashtra, ].

A single circumstance of arrest of the appellant from a house of another person does not necessarily lead to conclusion that the crime was committed by him. Such a circumstance is capable of being explained by more than one reason. That apart, the trial court has convicted the appellant on the testimony of P.Ws. 1 and 2 and it is not a case of conviction on the basis of circumstantial evidence. It is only in the penultimate paragraph of the impugned judgment that the trial court observed that arrest of the appellant from the house of another is strong circumstantial evidence against him. But it has not been held that this circumstance establishes the guilt of the appellant.

It is unfortunate that the appellant has been convicted by the trial court on the basis of hearsay evidence such a conviction cannot be sustained. This appeal is accordingly allowed. The judgment dated 23.8.90 passed by the 2nd. Addl. Sessions Judge, Singhbhum at Chaibasa, in S.T. No. 68 of 1988 convicting the appellant and sentencing him to life imprisonment u/s 302 I.P.C. is set aside. It is directed that the appellant be released forthwith from the jail custody, if not wanted in any other case(s).

A.K. Prasad, J.

I agree.