Back
2019 Supreme(Raj) 1622
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Kanwaljit Singh Ahluwalia and Mr. Banwari Lal Sharma, JJ.
Gujarmal - Appellant
Versus
State Of Rajasthan - Respondent
D.B. Criminal Appeal No. 2092 of 2017
Decided On : 22-04-2019
Mr. Pankaj Gupta and Ashish Sharma, Advocates, for the Appellant; Mr. Javed Choudhary, PP, for the Respondent
ORAL STATEMENTS TO POLICE OFFICIALS ARE NOT SUBSTANTIVE EVIDENCE AND CANNOT BE USED TO CONVICT AN ACCUSED.
Headnote:
CRIMINAL APPEAL - SECTION 302 IPC - FACT OF THE CASE - ACCUSED THREW HIS TWO-YEAR-OLD DAUGHTER FROM A MOVING TRAIN IN CHAMBAL RIVER - FINDING OF THE COURT - CONVICTION BASED ON ORAL STATEMENT TO POLICE OFFICIALS IS INADMISSIBLE - ISSUES - ADMISSIBILITY OF ORAL STATEMENTS TO POLICE OFFICIALS - RATIO DECIDENDI - ORAL STATEMENTS TO POLICE OFFICIALS ARE HEARSAY EVIDENCE AND CANNOT BE RELIED UPON FOR CONVICTION - FINAL DECISION - APPEAL ALLOWED, CONVICTION AND SENTENCE SET ASIDE, APPELLANT ACQUITTED - MAIN LEGAL POINT - ORAL STATEMENTS TO POLICE OFFICIALS ARE NOT SUBSTANTIVE EVIDENCE AND CANNOT BE USED TO CONVICT AN ACCUSED.
Fact of the Case:
ACCUSED ALLEGEDLY THREW HIS TWO-YEAR-OLD DAUGHTER FROM A MOVING TRAIN IN CHAMBAL RIVER - WIFE OF THE ACCUSED AND MOTHER OF THE DECEASED LODGED A COMPLAINT WITH THE POLICE - ACCUSED DENIED THE ALLEGATIONS DURING TRIAL.
Finding of the Court:
THE TRIAL COURT CONVICTED THE ACCUSED BASED ON THE ORAL STATEMENT MADE BY THE WIFE OF THE ACCUSED TO THE POLICE OFFICIALS - THE COURT HELD THAT THE ORAL STATEMENT WAS ADMISSIBLE AS RES GESTAE EVIDENCE.
Issues: WHETHER THE ORAL STATEMENT MADE BY THE WIFE OF THE ACCUSED TO THE POLICE OFFICIALS IS ADMISSIBLE IN EVIDENCE - WHETHER THE CONVICTION BASED ON THE ORAL STATEMENT IS VALID.
Ratio Decidendi: THE COURT HELD THAT THE ORAL STATEMENT MADE BY THE WIFE OF THE ACCUSED TO THE POLICE OFFICIALS IS NOT ADMISSIBLE IN EVIDENCE AS IT IS HEARSAY EVIDENCE - THE COURT FURTHER HELD THAT THE CONVICTION BASED ON THE ORAL STATEMENT IS NOT VALID.
Final Decision: THE APPEAL WAS ALLOWED, THE CONVICTION AND SENTENCE WERE SET ASIDE, AND THE APPELLANT WAS ACQUITTED.
JUDGMENT
Kanwaljit Singh Ahluwalia, J. - Initial version set out against the accused-appellant by the prosecution is that on 21.06.2014 in the evening at about 8.00 PM appellant threw his two years old daughter Nayushi from Ratlam-Agra Passenger Train in Chambal river in presence of his wife Sonu Kanwar (PW.2) i.e. mother of the deceased. Thus, the case of the prosecution is that the appellant committed offence punishable under Section 302 I.P.C.
2. Version to initiate criminal proceedings was unfolded by the complainant Sonu Kanwar (PW.2), mother of the deceased child and wife of the appellant and same is discernible from the written report (Ex.P.3) presented by her (PW.2) before Sanjay Sharma (PW.15). On the basis of written report (Ex.P.3) formal FIR (Ex.P.12) bearing No.170/2014 was registered at Government Railway Police Station, Kota for the offence under Section 302 I.P.C. Written report (Ex.P.3) when translated into English, reads as under:-
"To,
SHO Sahab,
G.R.P. Thana, Kota.
Sub.: For lodging of report regarding murder.
I, Sonu Kanwar w/o Gurjarmal, caste Gurjar, aged 20 years is resident of Village Khadraya, Tehsil Weir, District Bharatpur. I, alongwith my husband is doing labour wok in Village Murelia, District Chittorgarh. On 21.6.2014 we both husband and wife alongwith two daughters, eldest Nayusi aged two years and youngest Ayushi aged eight months, from Chittorgarh were going to Bayana where house of my in laws is situated by Ratlam-Agra Passenger Train. My husband is alcoholic. He often remain under the influence of liquor. On 21.6.2014 during the train journey my husband had taken the liquor. I was sitting on my railway berth. Youngest daughter was in my lap. Eldest daughter was sitting on railway berth. My husband was also sitting alongwith me. When Chambal river came, my husband threw my eldest daughter from the running train in Chambal river. I raised noise. Co-passengers had seen the occurrence. They pulled the chain, but train had not stopped as Kota Station was approaching. Upon pulling the chain, the train slowed down. My husband also jumped from the running train and ran away. I reached at Kota Railway Station and on reaching there, went to the police station to lodge the report. Upon my information, staff of the Police Station carried a search for my daughter in and around the Chambal river. My daughter Nayushi was found dead from Chambal river. My husband Shri Gurjarmal had thrown my daughter Nayushi in Chambal river from a running train and caused her murder. Legal action be taken. This occurrence had taken place on 21.6.2014 at about 8.00 PM.
Sd/-
Smt. Sonu Kanwar W/o. Gurjarmal, By caste Gurjar, R/o. Matrimonial Home Village: Khadraya, Tehsil Weir, P.S. Weir, District Bharatpur.
Date: 22.6.2014."
3. The present appeal has been filed through Jail.
4. Shri Pankaj Gupta, appearing as counsel on behalf of the appellant, and Shri Javed Choudhary, learned Public Prosecutor, have very fairly admitted that in the present case no co-passenger of the train in which the couple was traveling alongwith deceased daughter, has been examined by the prosecution.
5. In the present case, prosecution to secure conviction of the appellant, has examined fifteen witnesses, namely Vishnudhar Shringi (PW.1), Sonu Kanwar (PW.2), Ummed Singh (PW.3), Changej Khan (PW.4), Bhawani Shankar (PW.5), Kirti Bala (PW.6), Ishwar Singh (PW.7), Harinarayan (PW.8), Yogesh Kumar (PW.9), Dr. Surendra Meena (PW.10), Kamlesh Kumar Pankaj (PW.11), Dharmendra (PW.12), Pooran Chand (pw.13), Khushiram (PW.14) and Sanjay Sharma (PW.15). Thereafter statement of the accused-petitioner was recorded under Section 313 Cr.P.C., 1973 He denied all incriminating circumstances put to him.
6. Learned counsel for the parties are in agreement that the solitary eye-witness Sonu Kanwar (PW.2), mother of the deceased and wife of the accused, has turned hostile to the prosecution and has not supported the prosecution story. The learned counsels have also very fairly submitt
