Point of Law : Conviction Confirmed - Murder - Relevancy off acts forming part of same transaction - As per testimony, complainant has made a statement that her husband has killed her mother, a statement which can be relied in terms of Section 6 of Evidence Act, since, statement being res-gestae which is exception to rule of heresay evidence.

JUDGMENT :

1. Heard learned counsel for the appellant and learned A.G.A.

2. This criminal appeal arises out of judgment and order dated 05.01.2016 passed by the Additional Session Judge/Special Judge (D.A.A. Act), Jhansi in S.T. No.84 of 2014 arising out of Case Crime No. 123 of 2013, Police Station-Sadar Bazar, District-Jhansi, convicting the appellant (accused) under Section 304 (1) IPC and sentencing him to undergo rigorous imprisonment for 10 years and a fine of Rs. 15,000/-and in default of payment of fine, six months rigorous imprisonment.

3. In brief the prosecution case is that complainant Smt. Deepika presented an application dated 13.12.2013 at Police Station-Sadar Bazar, Jhansi alleging therein that her husband is Sepoy in the Army and posted at Jhansi. In the evening of 7/8-12-2013 at 7 p.m. her husband in drunken condition came to the house. After taking dinner complainant with her three children, mother-in-law Narmada Bai and mother Lalita went to sleep at 10 p.m.. At about 3 a.m. she woke up on hearing some shrieks then she saw her husband standing beside the cot of her mother holding a Gaiti in his hand. Her mother was lying on the cot bleeding from her head. She came outside and told her neighbour Abhijeet Pal about the incident. Thereafter, other military personnel came there and took her mother to medical college, Jhansi where she died. Post-mortem was conducted on 08-12-2013. Her mother had come to Jhansi on 26-11-2013 on the occasion of birthday of her son Soham and after 4-5 days her husband in drunken condition quarreled with her mother. On 27th May 2013 her husband Kautik Mahaley has badly beaten her and she was admitted in military hospital for 8 days. On her complaint of this assault he was punished by the Army for one month of quarterguard. Due to above reasons her husband in a drunken condition assaulted her mother Smt. Lalita and injured her causing her death. On receiving information, her maternal uncle Rajesh Aabhad came to Jhansi in the night of 08-12-2013 and on 09-12-2013 she went to Nasik with the dead body of her mother for performing her last rites. On returning from Nasik, now she is giving information. On the aforesaid application Case Crime No.123 of 2013, under Section 304 I.P.C. was registered at Police Station-Sadar Bazar. Inspector Baljeet Singh started the investigation. He visited the place of occurrence and at the instance of complainant recovered blood stained Gaitithe weapon used in the offence from the inner courtyard of her house, sealed it and prepared the memo. He also took the blood stains “Nivad” of the cot and prepared a memo, prepared the site plan, recorded the statement of the complainant and other witnesses. Case was further investigated by Inspector Mahendra Pratap Singh who completed the investigation and submitted charge sheet against the accused Kautik Mahaley under Section 304 I.P.C.

4. The trial court framed charge against accused under Section 304 I.P.C. who denied it and claimed for trial. The prosecution examined nine witnesses. The statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied the prosecution case and said that he has been falsely implicated and he has not killed Smt. Lalita. No evidence in defence produced by the accused. The trial court after hearing the arguments of the parties by the impugned judgment has convicted the accused-appellant.

5. Learned counsel for the appellant submitted that the F.I.R. has been lodged after five days of the incident so there is much delay and prosecution has failed to give any explanation of the delay. Four witnesses of fact PW-1 Smt. Deepika, PW-2 Rajesh Aabhad, PW-3 Abhijeet Pal and PW-9 Preetam Singh have not supported the prosecution version and have become hostile. Learned trial court only on the basis of statement of PW-4 Major Abhay Juyal has held the appellant guilty. The aforesaid witness has only stated that when on the information he reached on the spot, the wife of the accuse