The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRLA No.70 of 2020 An appeal from the judgment and order dated 20.10.2017 passed by the Sessions Judge, Deogarh in S.T. Case No.22 of 2012 for offence under Section 302 of the Indian Penal Code. --------------------- Lochan Udabar ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Rakesh Behera Advocate For Respondent: - Mr. Sarat Pradhan Addl. Standing Counsel --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH ------------------------------------------------------------------------ Date of Hearing and Judgment: 25.11.2024 ------------------------------------------------------------------------ By the Bench: Mr. Rakesh Behera, learned counsel files Consent Memo given by Mr. Partha Sarathi Nayak, to conduct the case on behalf of the appellant. The Consent Memo is taken on record. CRLA No.70 of 2020 Page 1 of 26 2. Appellant Lochan Udabar faced trial in the Court of the learned Sessions Judge, Deogarh in S.T. Case No.22 of 2012 for offence punishable under section 302 of the Indian Penal Code (in short ‘IPC’) on the accusation that on 27.04.2012 at about 5.00 p.m. at village Mahasindhu (Sunaposi) in the district of Deogarh, he committed murder of one Jogi Bagh (hereinafter ‘the deceased’). The learned trial Court, vide judgment and order dated 20.10.2017, found the appellant guilty of the offence charged and sentenced him to undergo life imprisonment and to pay a fine of Rs.500/- (rupees five hundred), in default of payment of fine, to undergo R.I. for one year more. Prosecution Case: 3. The prosecution case, as per the first information report (hereinafter ‘the F.I.R.’) (Ext.3) lodged by one Sambari Bagha (P.W.11), the widow of the deceased before the I.I.C., Kundhigola P.S., in short, is that on 27.04.2012 in the afternoon, her husband (the deceased) had been to the house of the appellant, who was the brother-in-law of the deceased. After about half an hour, the appellant, the deceased and one Inku Rajhans came back to the house of the informant and sat on the verandah of her house. Inku Rajhans was in love with Panchali, the daughter of Kolha Kishan @ Bagh (P.W.5), who was the elder CRLA No.70 of 2020 Page 2 of 26 brother of the deceased and eloped with her and married her, for which the family members of the deceased were not happy with Inku Rajhans. The appellant had assured Inku Rajhans to provide a piece of land for construction of his house. Coming to know about such promise being made, the deceased asked the appellant as to why he had given such assurance to Inku Rajhans and over this issue, there was hot exchange of words between the appellant and the deceased. The appellant and Inku Rajhans left the house of the informant and the deceased sat under a Mahula tree and was engaged in the work of making bundles of ‘kendu’ leaves. After sometime, the appellant came there with a tangia in his hand and threatened the deceased to kill him. The deceased was forbidding the appellant not to create disturbance in his work. At that point of time, the informant (P.W.11) was returning home after collecting water from the nearby tube-well and when she noticed the appellant was holding a tangia and threatening the deceased, she ran towards the appellant and snatched away the tangia from his hands. At that point of time, the appellant dealt blows on the head of the deceased by a stick (‘Panchana Badi’) provided by his wife. The deceased sustained bleeding injuries on his head and fell down on the ground. P.W.11 raised hullah, for which P.W.1, the CRLA No.70 of 2020 Page 3 of 26 younger brother of the deceased rushed to the spot and the informant handed over the tangia to him and then she took the deceased to her house and laid him down on a cot and guarded him. There was profuse bleeding from the wound of the deceased. However, the deceased could not be shifted to the hospital immediately as there was no facility of vehicle for carrying him to the hospital. At about 4.00 a.m. in the early morning, when there was no response from the deceased on call, the informant (P.W.11) called P.W.1, P.W.5 and others and all of them came to find that the deceased was dead. On the oral report of the informant (P.W.11), one Narottam Pradhan (P.W.6) scribed the written report and accordingly, the same was lodged at the police station. On receipt of the written report, the I.I.C., Kundheigola P.S. registered Kundheigola P.S. Case No.32 dated 28.04.2012 under section 302 of IPC and directed P.W.15 Sibanarayan Bhadra, S.I. of Police to take up investigation of the case. 4. During the course of investigation, P.W.15 examined material witnesses, visited the spot and prepared spot map (Ext.12). He held inquest over the dead body of the deceased and prepared the inquest report vide Ext.1. He sent the dead body of the deceased through a constable for post-mortem CRLA No.70 of 2020 Page 4 of 26 examination. The I.O. seized one iron axe having wooden handle, on production by the informant, in presence of the witnesses, as per seizure list Ext. 4/1. He also seized blood- stained earth, sample earth from the spot in the presence of witnesses as per seizure list Ext.2. The appellant was apprehended by the I.O. on 28.04.2012 and on the basis of his statement recorded under section 27 of the Evidence Act, the weapon of offence, i.e. the stick (‘Panchana Badi’) was recovered from its concealed place under the dried fence of his house and it was seized as per the seizure list Ext.9 along with one pink- colour ‘Lungi’ with white print and one pink-black colour T-shirt on production by the appellant. The I.O. seized the wearing apparels of the deceased, which was produced before him after the post-mortem examination as per seizure list Ext.10. He also sent the appellant to the Medical Officer of Kundheigola PHC for medical examination and he also seized the nail clippings, blood sample, etc. of the appellant for medical examination under seizure list Ext.11. The I.O. sent the weapon of offence (stick) to the D.H.H., Deogarh for examination and opinion and also made a prayer before the learned S.D.J.M., Deogarh to send the seized exhibits to R.F.S.L., Sambalpur and accordingly, the exhibits were forwarded. On 29.05.2012, the I.O. sent requisition to the CRLA No.70 of 2020 Page 5 of 26 Tahsildar, Reamal to demarcate the land, where the dead body of the deceased was lying and thereafter, he handed over the charge of investigation to Ugresan Pradhan (P.W.16), I.I.C., Kundheigola P.S., who after taking over the charge of investigation, received the report from the Tahsildar, Reamal and on completion of the investigation, submitted charge sheet against the appellant under section 302 of the I.P.C. Framing of Charges: 5. On receipt of the charge-sheet, the case was committed to the Court of Session following due procedure, where the learned trial Court framed charge against the appellant as aforesaid. The appellant pleaded not guilty and claimed to be tried and accordingly, the sessions trial procedure was resorted to establish his guilt. Prosecution Witnesses, Exhibits & Material Objects: 6. In order to prove its case, the prosecution examined as many as sixteen numbers of witnesses. P.W.1 Dushia Bagh is the brother-in-law of the appellant and the younger brother of the deceased who stated that at about 4 to 4.30 p.m. on the date of occurrence, he heard some shout from outside and accordingly, came outside only to CRLA No.70 of 2020 Page 6 of 26 find that the deceased had fallen down on the ground sustaining bleeding injury on his head and saw the appellant standing near the deceased by holding a badi(stick). He further stated that due to want of conveyance, they could not take the deceased to the hospital and he breathed his last on that very night. He further stated that the deceased and the appellant were pulling on well before the occurrence, but he pleaded ignorance regarding the reason for which the appellant committed murder of the deceased. He was subsequently declared hostile by the prosecution. P.W.2 Linga @ Lingaraj Bagh stated that the occurrence took place during the day time on one Friday. He denied having any knowledge about the cause of the death of the deceased and stated that he was informed by the informant about the assault caused by the appellant on the deceased. He further stated to have seen the deceased with bleeding injury on his head. He is a witness to the preparation of inquest report vide Ext.1. P.W.3 Sushila Kisan is the sister-in-law of the informant who stated that at the time of dusk, she got information about the death of the deceased at the hands of the appellant after which she rushed to the house of the deceased CRLA No.70 of 2020 Page 7 of 26 and upon reaching there, she saw the dead body of the deceased with bleeding injury on his head and below his right arm. P.W.4 Pabitra Bagh is a co-villager of the deceased who stated that during the morning time, he along with others were called to see the dead body of the deceased and upon reaching there, he was informed that the deceased had quarrelled with the appellant in the previous night. He further stated that the dead body of the deceased had bleeding injury on his head coupled with bleeding from his nostril. Subsequently, he was declared hostile by the prosecution. P.W.5 Kolha Kishan @ Bagh is the elder brother of the deceased and brother-in-law of the informant who stated that at the time of assault, he was bundling kendu leaves in his house and he had not seen the occurrence himself. He further stated that his brother Bhutia and the wife of the deceased went to the spot and separated the deceased from the appellant and brought him to the house and only after he was brought to the house, he could see bleeding injury on the head of the deceased and he came to learn from the informant that the injury was caused by the appellant to the deceased by means of a ‘badi’. He further stated that the deceased was able to talk when they were discussing about taking him to the hospital, however, he could CRLA No.70 of 2020 Page 8 of 26 not state any reason as to why the quarrel between the deceased and the appellant started. He was declared hostile by the prosecution. P.W.6 Narottam Pradhan stated that he was informed about the death of the deceased by the villagers after which he came to the house of the deceased and saw the dead body of the
Facts
deceased. He pleaded ignorance about the facts of the case. He is a witness to the seizure of sample earth and blood stained earth as per the seizure list Ext.2. He is also the scribe of the F.I.R. but later on he was declared hostile by the prosecution. P.W.7 Lakshmidhar Bagha stated that about 10.00 a.m., he saw a large gathering and upon reaching at the spot, he was shown an axe by the police and was asked to say about seeing the same and he was also requested to put a signature, which he did. He further stated that he had seen the dead body of the deceased but he does not know about the cause of his death. P.W.8 Bharata Balia @ Balna is a caste man of the deceased’s village who stated that he was informed about the death of the deceased by P.W.5. He pleaded ignorance about any further facts of the case for which he was declared hostile by the prosecution. CRLA No.70 of 2020 Page 9 of 26 P.W.9 Dr. Gangadhar Pradhan was working as the Medical Officer at the District Headquarters Hospital, Deogarh who, on police requisition, conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.5. P.W.10 Judhistir Sahu was working as the Medical Officer at the Kundheigola P.H.C. who, on police requisition, medically examined the appellant and proved his report vide Ext.7. P.W.11 Sambari Bagha is the wife of the deceased and also the informant of this case, who narrated the incident as it unfolded and supported the prosecution case. P.W.12 Bandhu Bagha stated that he put signature on a blank paper as per the direction of police but pleaded ignorance about the facts of this case for which he was declared hostile by the prosecution. P.W.13 Jogeswar Pradhan is a co-villager of the deceased who stated that upon hearing hullah raised by the villagers, he came to the spot where he was asked to put signatures on two papers by the police. He pleaded ignorance about the facts of this case for which he was declared hostile by the prosecution. CRLA No.70 of 2020 Page 10 of 26 P.W.14 Bipin Bihari Sahoo was working as a constable in Kundheigola police station who is a witness to the seizure of one lungi, one chadi and one vial containing sample blood as per seizure list Ext.10. He is also a witness to the seizure of one vial of nail clipping as per seizure list Ext.11. P.W.15 Sibanarayan Bhadra was working as the Sub- Inspector of Police at Kundheigola police station and he is the initial investigating officer of this case. P.W.16 Ugrasen Pradhan was working as the Inspector-in-Charge of Kundheigola police station who took over the charge of investigation from P.W.15 on 25.07.2012 and upon completion of investigation, submitted charge sheet against the appellant. The prosecution proved sixteen numbers of documents as exhibits. Ext.1 is the inquest report, Exts.2, 4/1, 9/2, 10 and 11 are the seizure lists, Ext.3 is the F.I.R., Ext.5 is the post mortem report, Ext.6 examination report of weapon of offence, Ext.7 is the nail clipping report, Ext.12 is the spot map, Ext.13 is the inquest report, Ext.14 is the prayer to despatch exhibits to S.F.S.L. for chemical examination, Ext.15 is the forwarding report of the accused and Ext.16 is the chemical examination report. CRLA No.70 of 2020 Page 11 of 26 The prosecution also produced four numbers of material objects. M.O.I is the Panchan Badi, M.O.II is the pink colour lungi, M.O.III is the black colour T-shirt and M.O.IV is the black rose colour lungi. Defence Plea: 7. The defence plea is one of complete denial of the charge and it is stated that the deceased died on account of taking excess liquor. Findings of the Trial Court: 8. The learned trial Court, after assessing the oral as well as documentary evidence on record, came to hold that P.W.11 is the only eye-witness in the case who had the opportunity to see the second episode of the incident, because she had come to fetch water from the nearby tube well at the relevant time when she saw the occurrence. Learned trial Court accepted the evidence of P.W.1 and P.W.11 that the assault on the deceased was made by means of a stick (“Paanchana Badi”). The evidence of P.W.5 relating to the oral dying declaration has been disbelieved by the learned trial Court, however, the evidence of leading to discovery of the stick (Panchan Badi) at the instance of the appellant was accepted by the Court. The learned trial Court held P.W.11 to be a wholly reliable witness CRLA No.70 of 2020 Page 12 of 26 and considering the fact that her evidence is getting corroboration from the medical evidence, found the appellant guilty under section 302 of the I.P.C. Contentions of the Parties: 9.
Legal Reasoning
materials on record, we are of the view that the prosecution has successfully established that due to the assault of the appellant by a stick (Panchana Badi) (M.O.I), the deceased sustained injury on head, which ultimately resulted in his death. CRLA No.70 of 2020 Page 22 of 26 Whether the appellant is liable for commission of offence U/S 302 of I.P.C.?: 12. The evidence on record indicates that prior to the occurrence, there was good relationship between the appellant and the deceased and in fact, the appellant was the brother-in- law of the deceased. The appellant was trying to settle the dispute/dissension which arose on account of the elopement of the daughter of the elder brother of the deceased namely Panchali with one Inku Rajhans and getting married to Inku against the will and consent of the family members. The appellant was trying to provide a piece of land to Inku for construction of a house so that Inku and Panchali could settle down, which was not approved by the deceased, for which on the date of occurrence, there was hot exchange of words between the appellant and the deceased and tussle. It further appears that the appellant, even though was armed with a deadly weapon like axe and had sufficient time and opportunity to assault the deceased with that axe, but he did not use the same and rather he only used the stick (‘Panchana Badi’) which was handed over to him by his wife during tussle and dealt a blow by that stick on the head of the deceased. It further appears from the evidence on record that the deceased could not be shifted CRLA No.70 of 2020 Page 23 of 26 immediately to the hospital for treatment due to lack of conveyance facility and ultimately, he died in absence of medical treatment. In view of the background of the case and since prior to the occurrence, there was hot exchange of words between the appellant and the deceased and after P.W.1 snatched away the axe from the appellant, there was tussle between the appellant and the deceased and at that time, the wife of the appellant handed him a stick, in such a scenario, the appellant in all probability, whilst deprived of the power of self-control by grave and sudden provocation assaulted the deceased on his head with such stick. After the assault, the deceased was not taken to the hospital rather he was taken to the house where he was laid over a mat on the ground. P.W.1 has stated that as it was night time, she remained with her husband and could not take him to the hospital. The death took place almost in the early morning. P.W.1 has stated that had they taken the deceased immediately to the hospital on that day, he could have chance of survival. Therefore, it appears to be a case where no treatment could be provided to the deceased for about twelve hours after the occurrence and ultimately, the deceased died. It is of course true that under the Explanation 2 to section 299 of the I.P.C., it is CRLA No.70 of 2020 Page 24 of 26 stated that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment, the death might have been prevented. Thus, on the evidence of P.W.1 that the deceased could have been saved with better treatment, the charge of murder does not get diluted. However, taking into account the overt act committed by the appellant in the surrounding circumstances, we are of the view that the case squarely comes under the Exception 1 to section 300 of the I.P.C. and within the purview of culpable homicide not amounting to murder, however considering the fact that the appellant assaulted the deceased on the vital part of his body and there was fracture of the skull bone and according to the doctor, the injury caused was sufficient in ordinary course of nature to cause death, it amounts to culpable homicide not amounting to murder and the act by which the death was caused was done with the intention of causing death. Thus, conviction of the appellant under section 302 of the I.P.C. cannot be sustained in the eye of law and accordingly, the same is altered to one under section 304 Part-I of the I.P.C. CRLA No.70 of 2020 Page 25 of 26 Conclusion: 13. In the result, the Criminal Appeal is allowed in part. The impugned judgment and order of conviction of the appellant under section 302 of the I.P.C. is hereby altered to one under section 304 of Part-I of the I.P.C. and the appellant is sentenced to undergo R.I. for 10 (ten) years. Since the appellant is stated to be in judicial custody in connection with this case for more than 12 (twelve) years, he shall be released from jail custody forthwith, if his detention is otherwise not required in connection with any other case. 14. Before parting with the case, we would like to put on record our appreciation to Mr. Rakesh Behera, learned counsel for his preparation and presentation of the case before the Court and rendering valuable help in arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance rendered by Mr. Sarat Pradhan, learned Additional Standing Counsel for the State. ................................. S.K. Sahoo, J. .................................. Chittaranjan Dash, J. Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 03-Dec-2024 12:13:49 Orissa High Court, Cuttack The 25th November 2024 S.K. Parida, ADR-cum-APS CRLA No.70 of 2020 Page 26 of 26
Arguments
Mr. Rakesh Behera, learned counsel appearing on behalf of the appellant submitted that the evidence of the sole eye witness (P.W.11) would indicate that there was a hot exchange of words between the deceased and the appellant prior to the assault and even though the appellant was earlier armed with a sharp cutting weapon like axe, he did not give any blow to the deceased by that axe and after the said axe was taken away from him by the informant (P.W.11), one fatal blow has been given on the head of the deceased by means of a stick (‘Panchana Badi’). Learned counsel further submitted that the deceased was not taken to the hospital after the occurrence due to want of conveyance facility and he was found dead at 4 O’ clock in the morning of 28.04.2012 and therefore, taking into account the background of the case and the fact that there was good relationship between the appellant and the deceased prior to the occurrence and the quarrel took place all on a sudden when the deceased came to know that the appellant assured one Inku Rajhans to give a piece of land who had eloped with his CRLA No.70 of 2020 Page 13 of 26 elder brother’s daughter and married her without the consent of the family members and on protest being made by the deceased to give Inku a piece of land for construction of his house, on grave and sudden provocation, a single blow was given by the appellant to the deceased, the case would come within the Exception 1 to section 300, I.P.C. and as such, the conviction of the appellant should be altered from section 302 of I.P.C. to one under section 304 Part-I of the I.P.C. Learned counsel further submitted that the appellant is in custody for more than 12 years and therefore, the sentence may be reduced to the period of imprisonment already undergone. Mr. Sarat Pradhan, learned counsel appearing for the State, on the other hand, supported the impugned judgment and submitted that the learned trial Court has rightly placed reliance on the evidence of P.W.11, the widow of the deceased as she has specifically stated as to how the appellant dealt blow by means of a stick on the head of her husband (deceased). He further submitted that the evidence of P.W.1 also corroborates the evidence of P.W.11 so also the medical evidence. Learned counsel argued that the lacerated wound, which was found on the left parietal region of the deceased, was sufficient in ordinary course of nature to cause death of the deceased according to the CRLA No.70 of 2020 Page 14 of 26 doctor (P.W.9) and therefore, the learned trial Court is quite justified in convicting the appellant under section 302 of the I.P.C. Whether the deceased died of a homicidal death?: 10. Before adverting to the contentions raised by the learned counsel for the respective parties, let us first examine whether the prosecution has successfully established that the deceased met with a homicidal death or not. Apart from the inquest report (Ext.1), it appears that the Medical Officer (P.W.9) attached to the District Headquarters Hospital, Deogarh,who conducted the post-mortem examination over the dead body of the deceased on 28.04.2012, found the following injuries – “1. Abrasion of size ½” x ½” upper of right elbow joint; 2. Abrasion 1/3” x ½” over the right elbow joint …th apart to injury No.1 downward position; 3. Abrasion 1/3” x 1/3” over the right elbow joint ¼” apart injury no.1 upwards direction; 4. Lacerated injury 1” x ½” up to bone depth on the left parietal region / to the midline. He further stated that on dissection he found external downward haematoma of size 5” x 4” x 1” over the left parietal CRLA No.70 of 2020 Page 15 of 26 temporal region and linear fracture of left parietal bone. He opined that the injuries noted above were ante mortem in nature and the cause of death was due to head injury and haemorrhage which were possible by hard and blunt object and the time of death was within 24 hours of the post mortem examination. The doctor proved the post-mortem report marked Ext.5. He also examined the weapon of offence which was sent to him by the I.O. for a query regarding possibility of the injuries sustained by the deceased with such weapon and he answered such query in affirmative. He further stated that the injuries were sufficient in ordinary course of nature to cause death. In view of the inquest report (Ext.1) and findings in the post-mortem report (Ext.5) coupled with the evidence of the doctor (P.W.9), which has remained unchallenged in the cross- examination, we are of the humble view that the learned trial Court is quite justified in holding that the prosecution has successfully proved that the deceased met with homicidal death. Whether the eye witness account of P.W.11 is corroborated by other evidence and reliable?: 11. So far as the evidence of P.W.11 is concerned, she is the eye witness to the occurrence. She is also the widow of the CRLA No.70 of 2020 Page 16 of 26 deceased. Reliance can be placed on the solitary statement of a witness if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. She stated that on the date of occurrence, the appellant promised to give a piece of homestead land to Inku Rajhans who had kidnapped the daughter of the elder brother of the deceased. She has further stated that after the appellant left the house, the deceased was engaged in making bundles of ‘Kendu’ leaves and she had been to fetch water from the nearby tube well. At that point of time, the appellant came from his house carrying an axe in his hand and he was saying “maari debi” (I will kill). She ran towards the appellant and when the appellant was about to give a blow, she snatched away the axe from the hands of the appellant. She further stated that both the appellant and her husband (the deceased) tussled with each other and at that time the wife of the appellant was standing near the spot with one stick in her hand and she handed over the stick to the appellant and upon getting the stick, the appellant dealt a blow on the head of the deceased by means of that stick for which there was profuse bleeding. She called the younger brother of the deceased namely Dushia Bagh (P.W.1), who came CRLA No.70 of 2020 Page 17 of 26 to the spot and took away the axe from her hands. The deceased fell down at the spot, after which the appellant left the spot with the stick. She further stated that they took the deceased to the house and laid him on a mat on the ground and as it was night time, the deceased could not be shifted to the hospital immediately. She further stated that at about dawn time, she found profuse bleeding from the nostrils of the deceased and called P.W.1 so also the elder brother of the deceased and they all suspected the deceased to be dead. The doctor was called for and on checking up, the doctor declared the deceased to be dead. In the cross-examination, P.W.11 has stated that the appellant promised to give a homestead land to Inku, the husband of Panchali, who was the daughter of the elder brother of the deceased, to help them to settle down and the appellant tried to persuade the deceased and the elder brother of the deceased so also the younger brother of the deceased to cooperate with him to help Inku Rajhans to settle down as per his assistance. She further stated that due to such assurance, there was a hot exchange of words between her husband (the deceased) and appellant. CRLA No.70 of 2020 Page 18 of 26 In view of the evidence on record, it appears that prior to the occurrence, on account of the assurance given by the appellant to provide a piece of land to Inku Rajhans who married to Panchali (the elder brother’s daughter of the deceased), there was hot exchange of words between the appellant and the deceased and there was also tussle between them. It further appears that even though the appellant was armed with an axe, he did not assault the deceased with that axe. The assault on the deceased took place by means of a stick (Panchana Badi) which was handed over to him by his wife. Nothing further has been brought out in the cross-examination to disbelieve the evidence of P.W.11 and her evidence appears to be cogent, consistent, reliable and trustworthy and her evidence is getting corroboration from the evidence of P.W.1, who is none else than the younger brother of the deceased. P.W.1 has stated that while he was bundling the ‘Kendu’ leaves in his house, at about 4.00 to 4.30 p.m. in the afternoon, he heard some noise and when came out of the house, he saw the deceased had fallen down on the ground with bleeding injury and the appellant was standing near the deceased with a stick in his hand. Thereafter the informant (P.W.11) lifted the deceased to the house and due to want of CRLA No.70 of 2020 Page 19 of 26 conveyance facility, the deceased could not be taken to any hospital immediately and the deceased breathed his last in that very night. He further stated that the deceased and the appellant were pulling on well with each other prior to the commission of the occurrence. However, he expressed his ignorance as to the real reason for which the appellant assaulted the deceased on that day. He further stated in the cross-examination that had they taken the deceased immediately to the hospital, he probably would have survived. The evidence of the doctor also corroborates the evidence of P.W.1. The evidence of P.W.1 holds more relevance as it not only corroborates the evidence of P.W.11 but also indicates about the presence of the appellant at the scene of occurrence with a lathi while the deceased was lying injured on the ground. This can be taken as res gestae under Section 6 of the Evidence Act. While explaining the principles governing the applicability of the doctrine of ‘res gestae’, the Hon’ble Supreme Court in the case of Gentela Vijayavardhan Rao -Vrs.- State of A.P. reported in (1996) 6 Supreme Court Cases 241 has held as follows: “The principle or law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English Law. The essence of the doctrine is that fact which, CRLA No.70 of 2020 Page 20 of 26 though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter.” [Emphasis supplied] In the present case, the testimony of P.W.1 that he saw the appellant standing near the injured deceased holding a stick (Panchana Badi) immediately after the occurrence, holds a significant importance as though the witness has not directly seen the appellant assaulting the deceased, but has seen him holding a weapon, which was opined to have the capacity to cause the fatal injuries found on the body of the deceased. This fact is so connected with the factum of assault on the deceased that it seems to be in the same transaction and hence, relevant under section 6 of the Evidence Act. CRLA No.70 of 2020 Page 21 of 26 The evidence of the doctor (P.W.9) also corroborates the evidence of P.W.11. The doctor has found lacerated wound on the left parietal region of the deceased and further stated that the said injury was possible by the weapon which was produced before him by the police. The Investigating Officer (P.W.15) has stated that while the appellant was in custody, he gave his statement which was recorded under Section 27 of the Evidence Act and he led the police and other witnesses near to the dried fence around his house and brought out the stick (Panchana Badi) from the said fence and produced before him (I.O.) which was seized as per seizure list Ext.9/2. The recovery of the weapon of offence at the instance of the appellant and the affirmative opinion given by the doctor (P.W.9), thus, corroborates the evidence of P.W.11. Furthermore, the said stick (M.O.I) was sent for chemical examination and human blood was noticed on it as per the C.E. Report vide Ext.16/1. Therefore, in view of the available