M. Fathima Beevi, J.
1. The appeal is directed against the conviction of the appellant Under Section 302 I.P.C. and sentence to undergo imprisonment for life. The appellant was tried on the charge that he committed murder by causing the death of his younger sister Santhamma by stabbing her with a knife. The occurrence happened inside their dwelling house on the night of 22/23-10-1981. The prosecution has alleged that the appellant did the act out of frustration on account of the resistance of the deceased in his attempt to satisfy his lust. The learned Sessions Judge has based the conviction on few circumstances which according to him are strong enough to form a complete chain and point to the guilt of the appellant
2. The main contention advanced on behalf of the appellant is that there is no evidence to warrant the conviction. Having heard the learned Counsel for the appellant and the learned Public Prosecutor, we are of the view that the circumstances relied on by the learned trial judge are neither incriminating nor complete and conclusive or unerringly pointing to the guilt of the appellant, and the conviction based on the circumstances is not justifiable.
3. The deceased Santhamma aged about 20 was an invalid with both legs congenitally wasted and paralysed. The appellant her elder brother is also a disabled person, walking with the aid of stretches. They lived along with their mother P.W. 1, the younger brother P.W. 6 hi a hut which consisted of a single room. The prosecution case is : The deceased along with the mother had been sleeping inside, while the appellant was sleeping in the cattle-shed close by and P.W. 6 in the neighbouring house of P.W. 2 on the fateful night. P.W. 1 was awakened at midnight on hearing the outcry of Santamma that she was stabbed by the appellant, P.W. 1 saw the appellant running out of the room dropping the knife. The alarming cry of P.W. 1 attracted P.Ws. 2 and 6 who rushed to the spot to see Santhamraa lying in a pool of blood P.W. 2 noticed the appellant moving away along the paddy field. P.W. 1 lodged the first information at the police station, 22 kilometers away, the next morning at about 10 a.m. The crime was registered against the appellant on the basis of Ext. P7 statement The post-mortem examination after the inquest revealed that Santhamma has sustained a fatal injury on her neck described thus : “A penetrating incised wound 2 cms X 54 cm on the left side of neck just above and 3.5 cms lateral to the medial end of the left clavicle. The wound is oblique and the upper lateral end pointed and lower medial end shows contused margins. On deeper dissection, the wound is directed medially and forwards cutting the common carotid artery and adjacent structures.” The appellant was arrested on 28-10-1981.
4 At the trial, the appellant denied his involvement in the crime. It had been suggested that he was falsely implicated at the instance of his rivals. P.Ws. 1 and 6 turned hostile to the prosecution and failed to support the prosecution case that P.W 1 heard the outcry of the deceased or saw him escaping from the room leaving the knife there. She also denied having given Ext. P7 statement implicating the appellant. P.W. 2 is the only witness who supports the prosecution in that she saw a person going away from the house of the deceased while she was proceeding to that place attracted by the outcries made by the inmates. She had also deposed that the appellant was not seen in the house at that time or thereafter. The learned Sessions Judge accepted the testimony of P.W. 2 as proof of incriminating circumstances. The circumstances according to the learned Judge are the conduct of the appellant keeping away from the house immediately after the occurrence, the evidence of P.W. 2 that she was told by P.W. 1 that the appellant stabbed the deceased. The further circumstance is that the appellant was absconding until arrest on 28-10-1981. The statement said to have been made by P.W. 1 in the presence of P.W. 2 to the effect that the appellant stabbed the deceased has been admitted and acted upon as res gestae. The learned Judge had for the purpose of accepting that part of the evidence of P.W. 2 that she heard the utterances of P.W. 1 made use of Ext. P7 the first information statement denied by P.W. 1. It has to be noted that P.W. 1 has denied having made any such statement when examined. She has no case that she heard the deceased make any declaration or that she made any such statement to the hearing of P.W. 2. Ext. P7 a prior statement which could have been used for the purpose of contradicting or corroborating P.W. 1 and not as substantive evidence has lost importance when P.W. I has denied having made that statement. It is difficult to accept the testimony of P.W. 2 on this point, when P.W. 1 contradicts her. The so-called statement of P.W. 1 would not form res gestae and would only be hearsay.
5. Section 6 of the Evidence Act read with illustration (a) thereto shows that spontaneous statements in the course of the transaction are admissible as being res gestae. in Hadu v. State , the Court explained Section 6 of the Evidence Act as under:
According to Section 6 what is admissible is a fact which is connected with the fact in issue as ‘part of the transaction’.
A transaction may consist of a single incident occupying a few minutes or it may be spread over a variety of facts etc. Occupying a much longer time and occurring on different occasions or at different places.
The Madhya Pradesh High Court in Mahendra v. State of M.P. 1975 Cri LJ 110 (at p. 112) said:
Where the transaction consists of different acts, in order that the chain of such acts may constitute the same transaction, they must be connected together by proximity of time, proximity or unity of place, continuity of action and community of purpose or design. (See Amrita Lal v. Emperor AIR 1916 Cal 188 at p. 196 : (1915) 16 Cri LJ 497. Hearsay statements to be admissible as substantive evidence of the truth of the facts stated therein must themselves be ‘part of the transaction’ and not merely uttered in the course of the transaction. Where the transaction is a single incident, a statement by a person who was perceiving the incident made simultaneously with the occurrence of the incident, may, with justification, be said to be part of the transaction inasmuch as it is the result of a spontaneous psychological reaction through perception….
While no doubt the spontaneity of the statement is the guarantee of the truth, the reasons for its admissibility under Section 6 is that it is a part of the transaction and not merely because it is spontaneous.
The statement is relevant only if it is that of a person who has seen the actual occurrence and who uttered it simultaneously with the incident or so soon thereafter as to make it reasonably certain that the speaker is still under the stress of the excitement caused by his having seen the incident.
6. The statement uttered or the act done must be a spontaneous reaction of the person witnessing the crime and forming part of the transaction. The bystanders’ declaration must relate only to that which came under their observation. The declaration must be substantially contemporaneous with the fact and not merely the narration of a prior event. A bystander is a person present at the time of the incident. Remarks made by persons other than the eye witnesses are only hearsay.
7. In order to make the statement of a bystander admissible, it must have been made, as contemplated by Section 6 of the Evidence Act and illustration (a) to it, at the time the transaction was taking place, or so shortly before or after it as to form part of the transaction. If the transaction has terminated and then the statement is made, the statement is irrelevant. The admissibility is dependent on continuity, (see Jowala Sahai v. Emperor (1915) 27 Ind Cas 664 : (1915) 16 Cri LJ 184. Tested in the light of these principles, we find that the statement purported to have been made by P.W. 1 to P.W. 2, on her arrival after the assailant had left the place is only hearsay and cannot form part of res gestae.
8. The other two circumstances stated to have been disclosed in the evidence of P.W. 2 are that she had seen one person coming out of the house and walking towards the nearby paddy field and that man was an infirm or walking in limsing gait. This evidence even if accepted, cannot connect the appellant, in the absence of proof that P.W. 2 could identify that person as the appellant. If she has noticed the person and also his disability, it could have been possible for P.W. 2 to identify the appellant. The credibility of the statement is thus open to doubt. From the testimony of P.W. 2, the court below has inferred that the appellant was absent in the house and this is considered as an incriminating circumstance. The evidence of P.W. 2 does not justify such an inference. The fact that she”‘ .’could not notice the appellant in the house when she visited the place does not necessarily lead to the conclusion that the appellant was keeping away deliberately. The arrest of the appellant on 26-10-1981 also would not constitute an adverse circumstance that he was absconding. The investigating officer does not state that the appellant was sent for or any search was made to trace him. Since the appellant has been implicated the very next day, it is only natural that he was absent at the time of the inquest. That does not mean that he had been absconding with a guilty conscience. Thus there is no circumstance inconsistent with the innocence of the appellant and the circumstances relied on are so inconclusive, that it would be unsafe to accept the same as the basis for a conviction on a grave crime. The conviction against the appellant has therefore to be set aside.
In the result the appeal is allowed. The conviction and sentence are set aside and the appellant is acquitted of the charges. He shall be set at liberty forthwith.