JUDGMENT
1. The Judgment in S.O. No. 285 of 1992 on the file of the learned Sessions Judge, Ranga Reddy District at Saroornagar, dated 26-11-1993 convicting the appellant under Sections 304 Part-1, 308 and 309 of the Indian Penal Code and sentencing her to simple imprisonment for a period of 5 years on the first charge, one year on the second charge and 3 months on the third charge is challenged in this appeal.
2. The facts leading to this appeal are that the appellant is the wife of PW1 R. Krishna Reddy. They were blessed with two sons viz., Veera Reddy, who met with an unfortunate death and Venkat Reddy, who survived. It is alleged that the appellant had thrown her six year old son Veera Reddy into the nearby public well
on 8-12-1991 at about 6 p.m. and then she herself jumped into thai well carrying second Venkat Reddy, aged 4 years with her. PW1 rushed to his neighbour PW2 A. Dasarath and informed him about the same and both of them rushed to the well and rescued the appellant and the second child while the first child drowned himself and he breathed his last after being brought out from the well. A case in Crime No. 13 of 1991 was registered under Sections 302, 307 and 309 IPC against the appellant by P.S. Nacharam on the report of PW5 B. Ashok Goud, Municipal Councillor of Kapra Municipality. PW6 P. Ram Reddy, Inspector of Police, conducted inquest over the dead body of the deceased-child in the presence of PW3 M. Ramulu, and another and PW4 Dr. K. Sudhakar Reddy, Civil Surgeon, Gandhi Medical College conducted autopsy and opined that the deceased died due to Asphyxia by drowning.
3. The learned Sessions Judge framed 3 charges against the appellant as already indicated above. She pleaded not guilty and claimed to be tried. The prosecution examined PWs.l to 6 and got Rxs. PI to P7 marked.
4. PW1 R. Krishna Reddy is the husband of the appellant and PW2 A. Dasarulh is the neighbour and both of them are said to have rescued the appellant from the well. Although they are cited as eye-witnesses, both of them did not support the prosecution version. They were accordingly declared hostile. PW3 M. Ramulu is the panch for the scene of offence and inquest. PW4 Dr. K. Sitdhakar Reddy is the Autopsy Surgeon. PW5 B. Ashok Goud reported the incident to the police and PW6 Inspector of Police is the first Investigating Officer. Another Inspector of Police who completed the investigation and filed the charge-sheet has not been examined.
5. The learned Sessions Judge sifted the evidence of PWs.l to 6 and looked into Ex.P.5, Post-Mortem Certificate on one hand and Ex.P3 inquest report and Ex.P4 Panchanama of scene of offence on the other and came to the conclusion on the basis of the contents of these documents that the height of the deceased was 105 cms. i.e., about 3-1/2′ and whereas the height of the parapet wall of the well is 3′. On that basis he disbelieved the version that the children had accidentally slipped into the well and the appellant had also fallen into the well with a view to rescue them. The learned Judge then adverted to the evidence of PW5, who is the author of Ex.P6 Report which reads that after picking up a quarrel with PW1 regarding children, the appellant threw the deceased into the well and later jumped into the well along with her second son. Thus, the appellant has been held guilty of all three charges. On the first charge the finding is that an offence under Section 304 Part-I IPC is made out and on the second charge an offence under Section 308 IPC is made out. The appellant has been convicted accordingly and sentenced to simple imprisonment as indicated above and the said sentences are directed to run concurrently. Hence this appeal.
6. Sri C. Praveen Kumar Reddy, learned Counsel for the appellant strenuously contended that there is no legal evidence to connect the appellant with the above crime inasmuch as the so-called eye-witnesses PWs.l and 2 did not support the prosecution version. He has taken me through the entire record and contended that the version of PW2 as well as PW5 cannot be relied upon as it is only hearsay. Turning to Exs.P3, P4 and P5 on the basis of which the learned Judge held that the deceased could not have jumped into the well, he argued that PW3 panch witness testified that he does not know the contents of Exs.P3 and P4
and in that view of the matter, there is no substantive evidence to prove the height of the parapet wall or that of the deceased-child. He also pointed out that the main Investigating Officer has not been examined in this case and thereby an opportunity to establish the omissions and contradictions in the prosecution evidence is not afforded to the appellant and thereby prejudice is caused to her. He, therefore, contended that the appellant may be acquitted of all the charges. On the other hand, Sri C.S. Venkatesh, learned Counsel representing the learned Public Prosecutor contended that though the material witnesses have turned hostile on account of close relationship with the appellant, there are circumstances which lend credence to the prosecution version. He further contended that the onus of establishing the circumstances in which the appellant and her sons landed themselves in the well is upon her, but there is no plausible explanation from her and hence, the learned Sessions Judge was justified in convicting the appellant.
7. It is well settled that the onus to establish the guilt of the accused in any criminal case beyond reasonable doubt is heavy upon the prosecution and it does not shift to the accused except in the case of plea of genera] exceptions or alibi and in no other circumstances. It is also a cardinal principle that a person can be deprived of his personal liberty on the basis of legal and admissible evidence, but not upon conjectures or surmises. Keeping these principles in view, one has to approach to the evidence on record.
8. I carefully considered the contentions of both sides and perused the evidence on record. PWl father of the victim deposed that the deceased fell into the well while playing nearby. PW2 neighbour deposed that he learnt from PWl that the appellant threw her eldest son in the well and jumped into the well along with her second son. Thereafter both of them went into the well and rescued the appellant and the second son, but they could not save the first child. It is also in his evidence that the went to PW5 Municipal Councillor and informed him about the incident. P\V5 in turn appears to have sent a report to the police alleging that there was a quarrel between the appellant and her husband and thereupon she had thrown the first child into the well and then she also jumped into the well along with the second child.
9. The question is whether the testimony of PW2 which is based on the hearsay information and also the contents of Ex.P6 earliest report which is again based on the hearsay information of PW2 are admissible in evidence. Though at the cost of repetition it may be stated that PWl did not support the prosecution version for obvious reasons. He merely deposed that the deceased fell into the well while playing near the well. He has been cross-examined by the learned Public Prosecutor with the permission of the Court. If the prosecution wanted to rely upon the version of PW2 that the source of his information was PW1 there should have been cross-examination of PW1 on this aspect. The learned Public Prosecutor should have suggested to PWl that he not only saw the incident, but he also informed PW2 that the incident had occurred in such and such manner. I am astonished to find that such a suggestion is not put to him and there is no cross-examination on this aspect. Even otherwise the information which is attributed to PWl may become relevant evidence only when PWl sticks to that version. It is not enough if one party to the conversation swears to the fact that so and so has informed him in such and such terms; it is necessary that the other party to the conversation also should concur. Otherwise it is open to the Public Prosecutor alleast to suggest to him, but in
the absence of such cross-examination, it cannot be said that a one sided version of the other party to the conversation can be accepted as legal evidence. Even otherwise hearsay evidence is inadmissible unless it can be held to be res gastae within the meaning of Section 6, Evidence Act. It is well known that any statement of the victim or an onlooker immediately after the incident if it can be treated as part of the same transaction is admissible as res gastae,
10. Adverting to the evidence of PW5 Municipal Councillor who lodged the report Ex.Pfi, it is noteworthy that he based the report upon information furnished by PW2. As already stated above, PW2 is not a direct witness to the incident, but he was allegedly informed about it by PW1. When that information passes to another person, the situation becomes worse, viz., hearsay information being passed on to a third person becomes much weaker in character. For these reasons, I am of the view that the evidence of PWs.2 and 5 and the contents of Ex.P6 which are all based on hearsay information do not partake the character of legal evidence.
11. Thus, I have no doubt in my mind that the learned trial Judge has erred in taking into consideration the testimony ofPWs.2 and 5 on one hand and the contents of Ex.P6 on the other in holding that the appellant had thrown the deceased-child into the well and thereafter jumped herself into the well along with her second son.
12. As regards the other material which has taken into consideration by the learned trial Judge, it may be seen that the height of the deceased is said to have been mentioned in the Post-Mortem Report Ex.PS. When the Autopsy Surgeon was examined as PW5, any such information should have been elicited from him and such evidence alone will have to be considered as substantive evidence. It is a well known fact that Post-Mortem Report which is prepared by the Autopsy Surgeon on the basis of his observations while conducting Post-Mortem examination cannot be called substantive evidence. The contents of the report are only meant to refresh the memory of the Autopsy Surgeon. This principle also is very well established. Otherwise, there would not have been any necessity to examine the concerned Autopsy Surgeon and probably the trial Court could have merely marked the Post Mortem Report and be done with it if it can be treated as substantive evidence. From the view point it was not correct on the part of the learned trial Judge to look into the contents of Ex.PS to arrive at a finding as to the height of the deceased. Likewise, Ex.P3 Inquest Report and Ex.P4 Panchanama of scene of occurrence are also not substantive pieces of evidence. The testimony of PW3 panch witness shows that he does not know the contents of these documents. The other witness who could have proved the contents of these documents is the concerned Investigating Officer, but the prosecution did not elicit the height of the parapet wall through other Investigating Officer also. In these circumstances, I fail to understand as to how Exs.PW3 and P4 can be treated as substantive evidence and the contents thereof be looked into for the purpose of recording a finding that there was no possibility for the deceased to fall into the well. It is noteworthy that none of the witnesses have deposed to the fact that there is a parapet wall around the well leaving apart the height thereof.
13. A careful reading of the Judgment under appeal shows that there is no other incriminating material against the appellant. I looked into 313 Cr.P.C. Examination which consists of 23 questions. I am unable to find any question relating to the height
of the so-called parapet wall or the height of the boy on the basis of which the learned Judge ruled out the possibility of the deceased-child slipping into the well accidentally. It is an elementary principle that any incriminating circumstances if not put to the accused should be eschewed from consideration. 1 am fortified in my view by the ratio in Sharada v. State of Maharashtra, .
14. On an earnest consideration of the legal and admissible evidence on record, 1 am satisfied that the prosecution is unable to establish all three charges framed against the appellant. If parapet wall theory is eschewed from consideration, there is every possibility of the children slipping into the well while playing around that place and the appellant might have jumped into the well with a view to save her children. That is her explanation in her 313 Cr.P.C. examination and in my view, such a possibility cannot be ruled out. It is noteworthy that whenever two versions are possible, one which is favourable to the accused should be adopted. I am of the view lhat ihe above view which is favourable to the appellant is fit to be accepted for all the reasons given above.
15. I therefore, fine merit in this appeal and it is accordingly allowed and the conviction of the appellant under Sections 304 Part-1, 308 and 309 of the Indian Penal Code are set aside and the sentences thereon are also set aside.
16. The appellant is thus acquitted of all the charges. Her bail bonds are directed to be cancelled.