J U D G M E N T

(15/07/2021)

Per: Atul Sreedharan, J :

The Appellant is aggrieved by the judgment and sentence dated 1st September 2008 passed by the learned Additional Sessions Judge, Burhanpur, in Sessions Trial No.50/2008 whereby the appellant was convicted for an offence under Section 302 I.P.C. to undergo life imprisonment and a fine of Rs.5000/-, with default stipulation.

2. The facts leading to filing of the present appeal are as follows. The appellant herein is stated to have killed his wife on 15.1.2008. On that day, the appellant, his wife Sumitra and their child were going towards village Bheraghat when he is said to have thrown a stone on his wife on account of which she suffered head injuries and died. PW- 5 is the eyewitness of the incident. He states that on the date of incident, he was walking behind them and had moved away to answer the call of nature and when he returned, he saw the appellant telling his wife that she is having an extra-marital affair behind his back and thereafter he threw a stone at her. The stone struck her on the head and as she fell, he threw the stone again on account of which she died. PW-15 is Shiv Kumar, who is stated to have gone ahead and informed PW-3 Babulal, PW-13 Mithiya bai and PW-5 Dulichand. Undisputedly, all these witnesses received the information relating to the incident from PW-15, Shiv Kumar.

3. Learned counsels for the appellant submits that the statements of PW-3, PW-13 and PW-5 are hearsay and therefore, not admissible and ought not to have given any credence. Learned counsel for the appellant, referring to the statement of the appellant under Section 313 of Cr.P.C. where a specific question was asked to the appellant by the learned trial court whether he threw a stone at his wife on account which she suffered injuries, to which the appellant answered in affirmative and stated that he had only thrown the stone once.

4. The post-mortem report is Ex.P-9. The body of the deceased had received two injuries. One is the lacerated wound, 2”x1”x1” with irregular margins and torn reddish colour with a fracture of the temporal bone left side and with multiple fractures on left side of the skull. The second injury is a lacerated wound over the left ear 1”x1/4”x1/4”, margins are irregular and torn reddish in colour. Injury no.1 is stated to have been grievous and fatal caused by a hard and blunt object on account of which the deceased died due to coma as a result of head injuries. The death is said to have taken place within 24 hours of the incident.

5. Learned counsel for the appellant submits that the incident was on account of a sudden impulsive action on the part of the appellant upon which he picked up a stone lying at the scene of occurrence and threw it at the deceased due to which she died on account of the head injuries suffered by her. He further states that the so-called confession was given to the learned trial court by the appellant under Section 313 Cr.P.C cannot be used against the Appellant as no warning was held out by the learned court below that whatever he has stated under Section 313 Cr.P.C could be used as an evidence against him.

6. Per contra, learned counsel for the State submits that statements of PW-15 Shiv Kumar, PW-3 Babulal, PW-13 Mithiya Bai and PW-5 Dulichand, though hearsay, would be admissible under the rule of res gestae. It is further submitted that the admission of guilt before the trial court under Section 313 Cr.P.C clears that the cobwebs of doubt at corroborates cooked the substantive evidence against the appellant herein. It is further submitted that PW-15 Shiv Kumar, who is an eyewitness to the incident, in his cross examination has not been contradicted in any way. He stated that the post-mortem report, Ex.P- 9, reflects two fractures on account of which it can reasonably be inferred that the statement given by PW-15 Shiv Kumar stands corroborated by the post-mortem report Ex.P-9, which reflects that the appellant had actually struck the de