RAMADHAR SHARMA vs STATE OF CHHATTISGARH

Acquittal Appeal No. 238 of 2010 has been preferred by Ramadhar Sharma who is father of the deceased - Manju Mishra whereas Acquittal

Appeal No. 474 of 2010 has been preferred by the State. In both the matters challenge is to the judgment dated 22-2-2010 passed by the Sessions

Judge, Janjgir-Champa (CG) in Sessions Trial No. 128 of 2009 wherein the said court has acquitted respondent Devendra Mishra for the charges of

offence under Section 302/34 of IPC in alternate under Section 302 read with Section 120-B of the IPC for committing murder of his wife Manju

Mishra or for conspiracy of murder.

In the present case, deceased Manju Mishra was the wife of respondent Devendra Mishra. It is alleged that the marriage between them was

solemnized on 2-4-2007 and deceased died on 28-2-2008. As per version of the prosecution, deceased was going to school on a two wheeler to village

Murpar on 28-2-2008 at about 11.00 a.m., and on the way she was dashed by one Black Bolero vehicle. Initially she was admitted to District Hospital,

Janjgir and thereafter she was referred to District Hospital, Bilaspur, but on the way to Bilaspur she succumbed to the injuries. It is alleged that the

driver of the said Bolero vehicle first dashed the deceased intentionally, then again reversed the vehicle and ran over the deceased. It is alleged that

the respondent was sitting in the said vehicle. A report was lodged as per Ex.P/5 by Ramadhar Sharma (PW/3) who is father of the deceased.

The matter was investigated and after completion of the investigation, charge-sheet against the respondent was filed and after completion of trial, the

trial Court acquitted the respondent as mentioned above.

Learned counsel for the State submits as under:

I) The trial Court failed to appreciate the evidence of witness Rathram (PW/14) who deposed that the deceased was intentionally dashed twice by the

driver of the said Bolero vehicle and again failed to appreciate the version of PW/3 Ramadhar Sharma that the respondent had intention to eliminate

his wife.

ii) The trial Court after evaluating the evidence failed to appreciate the evidence of witness PW/16 Sanjay Sharma and document Ex.P/25 to the

effect that the relation between the deceased and the respondent was strained and he was harassing the deceased on account of non-fulfillment of

illegal demand of money.

Per contra, learned counsel appearing for the respondent/defence submits that the finding is based on proper marshaling of the evidence and the

same is not liable to be disturbed while invoking jurisdiction of the appeal.

We have heard learned counsel for the parties at length and perused material available on record.

To substantiate the charge, prosecution has examined as many as 21 witnesses.

Dr. K.B. Singh (PW/13) conducted autopsy of the deceased on 29-2-2008 at District Hospital, Janjgir and after autopsy he opined that the injuries

were caused by heavy moving vehicle and it appears that the death was caused by accident. He further opined that death is caused since 24 hours of

the examination.

Now the point for consideration is whether death of the deceased is done by conspiracy and the respondent is one of the culprit. As per definition of

criminal conspiracy, when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by legal means, such an

agreement is designated a criminal conspiracy:

PWS/14 Rathram deposed that one lady was driving Luna two wheeler vehicle and at the same time one Bolero vehicle dashed Luna vehicle and

again while reversing, the Bolero vehicle dashed the deceased but reversing of the vehicle is not mentioned in his earlier statement recorded under

Section 161 of the Cr.P.C by the Investigating Officer. Exaggerated version of this witness may be accepted after plausible explanation for not stating

the same in his earlier statement which is made at the first instance. No explanation has been offered by this witness, therefore, his exaggerated

version is not working or to say that no finding can be arrived at through his version.

PW/3 Ramadhar Sharma is father of the deceased who lodged first information report as per Ex.P/5 in which it is mentioned that the driver of the

Black Bolero vehicle dashed the vehicle of the deceased. As per version of this witness some villagers informed him that 2 â€" 3 persons were sitting

in the said Bolero vehicle and one Parmanand Yadav who is resident of village Murpar was claiming to identify them but the investigating agency has

not been able to produce any of them before the trial Court.

PW/5 Sanat Kurre deposed that after the incident the deceased informed him that one marshal vehicle dashed her. PW/8 Umesh Sharma deposed

that some women informed him that deceased was telling that she was dashed by Bolero vehicle by her husband. Version of this witness is hearsay

and that too of some unknown women. PW/11 Kamaldas deposed that some black Magic vehicle was driven by a person whose surname was

Mishra. Version of this witness is inconclusive looking to the facts and circumstances of the case. PW/12 Yogendra Singh is a person who deposed

that deceased sometimes stated to him that she has been subjected to harassment by her husband. Version of this witness also falls under the

category of hearsay evidence.

Arun Sharma (PW/18) is the brother of the deceased. He deposed that Rathram (PW/14) told him that driver of one Bolero vehicle dashed the

deceased twice. He further deposed that one Umesh Sharma has stated that in the said Bolero respondent was sitting. Version of this witness also

falls under the category of hearsay evidence. PW/19 Bhishma Prakash Sharma also deposed that on the basis of information received by him through

one Umesh Sharma he is saying that respondent was sitting in the said Bolero. Version of all the witnesses adduced by the prosecution is based on

hearsay evidence and version of Umesh Sharma (PW/8) is based on the version of some unidentified women and other witnesses have also deposed

on the basis of what is told to them by Umesh Sharma (PW/8).

Now, the point for consideration is whether hearsay evidence is admissible evidence and whether the finding can be recorded on the basis of

hearsay evidence.

In the matter of Kalyan Kumar Gogoi vs. Ashutosh Agnihotri reported in (2011) 2 SCC 532, Hon'ble the Supreme Court has held as under:

“(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e.,

every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence

is cornered, he has a line of escape by saying ""I do not know, but so and so told me"",

(b) truth is diluted and diminished with each repetition and

(c) if permitted, gives ample scope for playing fraud by saying ""someone told me that..........."". It would be attaching importance to false rumour flying

from one foul lip to another. Thus statement of witnesses based on information received from others is inadmissible.†As hearsay evidence of all

these witnesses is inadmissible, the same is not to be used against the respondent.

Registration number of the said Bolero vehicle is not mentioned in the first information report and the said vehicle is not seized. Neither driver of

the vehicle is brought before the trial Court nor owner of the said vehicle is identified. When name of the driver and owner of the vehicle is not

established, agreement between two persons or more persons of criminal conspiracy is not established in absence of agreement between two or more

persons. Driver and owner of the said vehicle were connecting link, but the same is totally missing. In absence of connecting evidence, respondent

cannot be charged for conspiracy.

True it is that direct evidence of conspiracy is rarely available, but a person can be connected through his guilty mind with others but there is no

iota of evidence to say that there was ever any meeting of mind of respondent with others for commission of offence. His presence in the said

offending vehicle is also not proved in absence of evidence. There is no evidence to the fact that one insurance policy was operated in the name of the

deceased in which the respondent was nominee and that is not any incriminating circumstance against the respondent because he is the husband of the

deceased and his nomination is otherwise, but natural.

Considering all the facts and circumstances of the case and in view of the law laid by the Hon'ble Supreme Court of India in Kalyan Kumar Gagoi

(supra), we are of the view that the finding arrived at by the trial Court is based on legally admissible evidence which is not liable to be interfered

while invoking jurisdiction of the appeal.

Accordingly, both the appeals are liable to be and are hereby dismissed.