apl63.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 63 OF 2011 WITH CRIMINAL APPLICATION NO. 4264 OF 2011 [ENTITY], Age 36 years, R/o. Korai, Tq. Akkalkuwa, District Nandurbar (At present is in jail) ig Appellant Versus The [ENTITY] Respondent (Copy to be served on Public Prosecutor, High Court of Judicature Bombay, Bench at Aurangabad) Mr. [ENTITY], advocate for the appellant (appointed) Mr. [ENTITY], APP for respondent CORAM : [ENTITY] AND [ENTITY], JJ. DATED : 12TH APRIL, 2012 JUDGMENT (PER [ENTITY], J.) :
1. The challenge in this appeal, by the appellant, to his conviction under [SECTION] of [ACT] for which he is sentenced to suffer R.I. for life and to pay a fine of ` 500/- with default stipulation to undergo further R.I. for six months, in [CASE NUMBER], by the judgment and order dated 6.10.2010, passed by the learned Additonal apl63.11 Sessions Judge, Shahada.
2. The prosecution case, unfolded before the trial court, can be summarized as follows:-
a) On the complaint (Exh.18) lodged by [ENTITY] (P.W.1), an offence was registered with Akkalkuwa police station vide [CASE NUMBER] by [ENTITY] (P.W.
7) on 18.11.2008 by Inspector of Police, who was then attached to Akkalkuwa police station. The said offence came to be registered against the present appellant for an offence punishable under [SECTION] of [ACT], as it is alleged that he had committed the murder of his wife-[ENTITY].
b) Upon registering the offence, P.W.7 himself took over the investigation in [CASE NUMBER]. He visited to the scene of offence i.e. residential premises of the appellant and deceased [ENTITY] and found that a dead body of the female person was lying at the scene of offence, which is identified by one [ENTITY], as the dead body of [ENTITY]. Then in presence of witnesses, inquest panchnama (Exh.30) was drawn on the dead body of [ENTITY]. Thereafter, dead body of [ENTITY] was referred to Rural Hospital, Akkalkuwa to conduct the post apl63.11 mortem on the said dead body.
c) Dr. [ENTITY] (P.W.5) who was then attached as a Medical Officer to Rural Hospital, Akkalkuwa had conducted the autopsy on the dead body of [ENTITY]. On 18.11.2008, in between 11.20 a.m. to 1.30 p.m. One Dr. M.C. Pawra assisted Dr. [ENTITY] while conducting autopsy on the dead body of [ENTITY].
ig While conducting autopsy, Dr. [ENTITY] noticed following external injuries on the person of [ENTITY] :-
i) Incised wound on forehead just below hairline, 15 c.m. X 205 C.M. X bone deep, radish marking sharp, transverse in direction, tappering at both ends blood stain, caused by sharp object.
ii) Incised wound on forehead above left eye 6.5 c.m. X 7.5 c.m. X bone deep.
iii) Incised wound on face below left eye 6.5 c.m. X 1.25 c.m.
X muscle deep, reddish, caused by sharp object.
iv) Depressed fracture of both maxilla, frontal bone, nasal bone, parietal bones, zygomatic bones, fracture of both mandible, caused by hard and blunt object.
v) Contused lacerated wound on face just above upper lip on left side involving left nostril I shaped 5 c.m. X 1.25 X 2.5 c.m.
apl63.11 [ENTITY].
vi) Lacerated wound on left parietal region of the head, 12 c.m. X 5 c.m. X brain deep, brain matter coming out through the wound, brain matter lacerated, mennings coming out through the wound, oblique in direction.
vii) Lacerated wound on right parietal region of the head 5 c.m. X 1 c.m. X bone deep oblique in direction, reddish might have been caused by hard and blunt object, grievous in nature.
viii) Lacerated wound on frontal region of the head, transverse in direction, 5 c.m. X 2 c.m. X bone deep, might have been cause hard and blunt object.
ix) Contused lacerated wound on lower lip 5 c.m. X 1.25 c.m. X 5 c.m. reddish, oblique in direction, might have been caused by hard and blunt object.
x) Fracture and dislocation of the upper and lower teeth involving incisors, canine, premollars, fracture dislocation of both upper and lower gums, might have been caused by hard and blunt object.
xi) Penetrating incised wound on left iliac fossa of the abdomen vertical in direction 2 c.m. X 1 c.m. X peritoneal deep. Margins sharp, might have been caused by hard and blunt object.
xii) Contusion on left side of the chest over upper and lateral quadrant of the left breast 6 c.m. X 6 c.m. [ENTITY] caused by apl63.11 hard and blunt object, might have been aged within 24 hours, grievous in nature, reddish;
xiii) Imprint contusion on left shoulder upper aspect 5 c.m. X 3 c.m. [ENTITY], might have been caused by hard and blunt object.
xiv) Incised would on terminal phalanx on the right ring finger 1 c.m. X 1 c.m. Bone deep, reddish, blood stained caused by sharp object.
xv) Stab wound on left thigh lateral aspect, on middle 1/3rd region, knife in situ, transverse in direction. On removal of knife, size, shape 7 c.m. X 3 c.m. X 2 c.m. reddish deep. Margins shape, caused by sharp object.
xvi) Swelling on left hand, dorsal aspect, on palpation fracture metacarpals of the left hand caused by hard and blunt object.
(P.W.5 opined that the above external injuries, noticed by him, on the dead body of [ENTITY], might have been occurred within 24 hours.
On internal examination, P.W.5 noticed following injuries:-
Hematoma under parietal region, both sides frontal region of the scalp.
i) Fracture of the left parietal bones 12 c.m. X 5 c.m.
apl63.11
ii) Brain- Brain matter lacerated and coming out through the vault of the skull. Left parietal region of the skull pale. Walls - Blood stained, haemotama around penetrating wound on left iliac fossa region of abdomen.
Accordingly, he prepared post mortem notes (Exh.26). In Exh.26, it is mentioned that the injuries mentioned against column Nos. 17 and 19 are ante mortem injuries. P.W.5 opined that the probable cause of death was due to acute Cardio respiratory arrest due to shock due to head injury.
While conducting autopsy on the dead body of [ENTITY], P.W.5 also collected samples of blood, hairs, scalp, nails of both hands which he forwarded to the Chemical Analyzer for analysis. P.W.5 opined that the injuries mentioned in column 17 are sufficient, in the ordinary course of nature, to cause death of the injured. He has also opined that injuries found on the person of deceased are possible due to assault with the help of sickle and stick.
d) After dead body of [ENTITY] was forwarded to perform post mortem, thereafter in presence of panch witnesses, ([ENTITY]-P.W.2 and [ENTITY]-P.W.3), panchnama of scene of offence (Exh.20) was prepared. While drawing panchnama of apl63.11 scene of offence, mattress stained with blood, wooden log/thick stick, broken handle of knife, broken pieces of bangles, clothes of small child stained with blood, sample of blood collected in cotton swab, were collected from scene of offence. On the same day, the appellant came to be arrested under arrest panchnama (Exh.31). At the time of arrest of the appellant, the clothes on his person were found stained with blood, which were also seized in presence of panch witnesses (Exh.32). On the same day, he recorded the statement of [ENTITY] (P.W.6) and 15 other persons. While in custody, on 19.11.2008, the appellant made disclosure statement (Exh.23) in presence of panch witnesses leading to recovery of sickle, stained with blood, concealed in the lavatory situated at the rare side of the house of the appellant. The said sickle was seized under panchnama (Exh.24/Exh.33). During investigation, the properties were forwarded to the Chemical Analyzer alongwith a forwarding letter of which office copy is at Exh.34. In due course, report was received from the Chemical Analyzer. On completion of investigation, charge sheet was filed against the appellant in the Court of learned [ENTITY].
e) On committal of trial to the Court of Sessions, charge was framed against the appellant-accused at Exh.10 for offence apl63.11 punishable under [SECTION] of [ACT] to which the appellant pleaded not guilty to the charge and claimed to be tried. During trial, to substantiate the charge levelled against the appellant-
accused, the prosecution has examined in all seven witnesses including the eye witness [ENTITY], the daughter of the appellant and deceased, Dr. [ENTITY], autopsy surgeon, three panch witnesses, complainant [ENTITY] and the Investigating Officer.
ig It appears that the defence of the appellant was of total denial. The learned trial court, on
appreciating the evidence of the prosecution, has convicted the appellant for the offence punishable under [SECTION] of [ACT]
and awarded the sentence, as stated in para 1 of this judgment.
The said judgment and order is under challenge in this appeal.
3. According to us, for better appreciation of rival submissions, advanced by learned counsel Shri [ENTITY], followed by submissions of learned A.P.P. appearing for the respondent-State, it is necessary to advert to the evidence of material witnesses examined during trial, before the Court below.
4. On appreciation of evidence of P.W.5 Dr. [ENTITY] and post mortem notes prepared by him at Exh 26 and in the light of cross examination of P.W.5 wherein the only suggestion that these apl63.11 post mortem notes do not indicate that the autopsy notes were not seen and verified by Civil Surgeon. Nothing was elicited from the cross examination of Autopsy Surgeon. Perusal of this medical evidence, there is no hesitation, in our mind, to hold that the death of deceased [ENTITY] is homicidal death.
5. To prove the charge for an offence under [SECTION] of [ACT] it is not sufficient to establish that the death of victim is homicidal death unless it is proved beyond reasonable doubt that the appellant-
accused is an author of the injuries sustained by the victim resulted into the death of the victim.
6. Perusal of the record and proceedings received from the court below and after going through the impugned judgment and order, on the face of record, it is clear that the case of the prosecution rests on sole testimony of eye witness [ENTITY] (P.W.6), who is daughter of the appellant and deceased [ENTITY]. This [ENTITY] had stated in her evidence that during life time of her deceased mother, she was residing in the house at Korai, Tq. Akkalkuwa alongwith her father-appellant, mother-deceased victim, her sister and brother. Her father was doing the business of selling bread amlet on handcart. While giving evidence about the day and the date of incident, she had stated that incident took place on 17.11.2008. In the apl63.11 afternoon on that day, at about 3.00 p.m. or so, the appellant-her father, informed her mother deceased [ENTITY] that they have to go to Khetia, as they will do some business there for their livelihood to which her mother had refused. The appellant-her father got annoyed and he slapped on the face of her mother. She had further stated that thereafter the appellant-her father went outside the residence and returned after one to two hours. She had further stated that in the night, they took their dinner and went to sleep. She had further stated that around 11.00 p.m. or so, she woke up from the sleep on hearing the cries of her younger brother. At that time, she noticed that the appellant was assaulting her mother with Bamboo stick. At this juncture, she pointed out that Bamboo stick kept in the courtyard. She had further stated that she stood at one corner alongwith her younger brother and sister. She had further stated that when they started hue and cry, the appellant threatened them to keep quiet otherwise they will also be assaulted. She has further stated that all of them got frightened. She had further stated that the appellant was assaulting with sickle, stick and Bamboo in his hand over all body of her mother.
She had further specifically stated that the appellant assaulted with sickle on the face of her mother. The appellant further threatened them not to disclose about the incident to their grand-parents. Then he went outside the house by saying that he will return after 15 days. She had further stated that after her father-appellant left the residence they apl63.11 came outside the residence from the door of rare side, went to the residence of her grand-parents and disclosed about the incident to her grand-father (P.W.1). Thereafter, her grand-father came with them to their residence. She identified the sickle in the courtyard.
This child witness was cross examined at length. She had admitted in her cross examination that at the material time she was studying in 6th standard. Her grand-parents were bearing the educational and other expenses. She had further admitted that financial condition of her parents was weak and due to that siblings were maintained by their grand-parents. She had further stated that on the day of incident, after taking meals, they had visited the residence of their grand-father and returned back around 9.00 p.m. or so. She had further admitted that relationship of her parents i.e. the appellant and her deceased mother with her grand-parents were cordial. She had denied the suggestion that some unknown persons assaulted her mother. The only omission brought on record, in her cross examination, that she had not stated in her statement before police that the appellant threatened them not to disclose the incident to her grand-parents and the appellant told them that he will return after 15 days. According to us, there is no significance of this omission stands proved in the cross examination of this witness.
apl63.11 On re-appreciation of the evidence of P.W.6 [ENTITY], we are of the firm view that the child witness has shown courage to face ordeal of the cross examination at great length. We have to further appreciate the courage shown by this child witness that inspite of thorough cross examination, her evidence was not shaken anywhere about the role played by the appellant while assaulting her helpless mother i.e. brutal assault. In the premises, there is no hesitation, in our mind, to accept the evidence of this child witness.
7. The evidence given by this child witness is supported by the evidence of her grand-father (P.W.1) [ENTITY], who has stated in his evidence that in the night of 17.11.2008, when he was slept at his residence, around 11.15 p.m. or so, his grand-daughter [ENTITY] came to his house, knocked the door and informed that her mother was killed by her father. On asking, she had stated that her father has assaulted her mother with sickle and stick. Immediately, this witness alongwith neighbours [ENTITY] (P.W.3) and others went to the residence of his daughter, where he saw the appellant was found running from the spot. He noticed that his daughter [ENTITY] was found lying in a pool of blood on the cot inside the house.
Accordingly, he lodged the complaint in Akkalkuwa police station and prior to that he had gone to Khapar outpost from where he went to Akkalkuwa police station. According to us, nothing was shaken in his apl63.11 cross examination. From the evidence of [ENTITY] (P.W.3) who corroborated the evidence given by P.W.1 that he alongwith P.W.1 had been to the residence of the appellant and deceased [ENTITY], as during night of 17.11.2008, grand daughter of P.W.1 had been to the house of P.W.1 and informed that the appellant had killed deceased [ENTITY]. He is also panch witness to the panchnama of scene of offence (Exh.20).
8. From the evidence of P.W.4-[ENTITY], the prosecution has proved the discloser statement made by the appellant in view of [SECTION] of the [ACT] leading to the recovery of sickle ([SECTION] under recovery panchnama (Exh.24). From perusal of the cross examination of P.W.4, we find that the evidence given by P.W.4 was not shaken in his cross examination.
9. During the course of arguments, across the bar, learned counsel for the appellant would urge that on perusal of evidence given by P.W.1-the complainant, it suffers from contradictory statement. As according to him, initially he went to Khapar police outpost, where his F.I.R. was recorded. Then the police visited the spot and prepared a spot panchnama and thereafter he went to Akkalkuwa police station when he lodged the complaint and on the basis of that complaint, an offence was registered and investigated into. He would further urge apl63.11 that entire prosecution case rests on the testimony of child witness P.W.6 [ENTITY]. According to him, evidence given by P.W.6 is not free from doubt and she is tutored witness. For this purpose, he drew our attention to the cross examination of P.W.1 and P.W.6. He would urge that P.W.1 and P.W.6 have admitted in their cross examinations that the financial condition of the appellant and deceased [ENTITY] was weak. Grand parents of P.W.6 are bearing the educational and other expenses of P.W.6 and her brother and sister. Even on the day of incident, even though the house of the appellant and deceased is surrounded by the residential premises, however, none of the neighbour neither during investigation nor during trial was examined, when it is but natural that considering the nature of injuries sustained by the deceased, the possibility cannot be ruled out that on hearing hue and cry of the deceased, neighbours might have gathered at the spot and they have witnessed the incident. According to him, no attempts were made by the prosecution to record the evidence of independent witness i.e. neighbours residing near residential premises of the appellant and deceased. Under the circumstances, he would urge that the evidence of P.W.6 ought to be discarded. He would further urge that once the evidence of P.W.6 is discarded, then there is no evidence against the appellant. He would further urge by pointing out the evidence of P.W.2 and P.W.3, as P.W.2 has stated in his evidence that during his visit to scene of offence, he noticed that sickle apl63.11 and Bamboo stick were lying on the spot. As against this, it transpired from the evidence of P.W.3, who is panch to the panchnama of scene of offence, only stick was found lying at the scene of offence. He would further urge that considering the evidence of P.W.2, the evidence of recovery of sickle ([SECTION] cannot be said to have been proved from P.W.4. In substance, according to him, evidence of prosecution is not free from doubt. Hence, it is to be held that the evidence led by the prosecution is not reliable, the benefit of doubt be given to the appellant-accused and he be acquitted from the charge of offence punishable under [SECTION] of [ACT] by allowing the instant appeal. In support of his contention, he placed reliance on the observations of the Apex Court in the case of [PRECEDENT].
10. Per contra, the learned A.P.P. appearing for the respondent-
State supports the judgment and order of conviction recorded by the court below and prays for dismissal of appeal.
11. We have given our anxious consideration to the rival submissions of learned counsel for the appellant and the learned A.P.P. for the respondent-State. At the outset, as we have expressed earlier that the evidence, given by P.W.6 a child witness, is not shaken anywhere in her cross examination, we are not in agreement with the apl63.11 submissions of learned counsel appearing for the appellant that the case of the prosecution suffers, as no independent witness like the neighbours were examined during investigation or during trial, as it is not brought on record that at the time of incident, neighbours have gathered at the spot and witnessed the incident. As we have stated earlier, that cross examination of child witness (P.W.6) is silent on this aspect. So also cross examination of the Investigating Officer is also silent on this aspect. If nothing is on record to show that the incident of assault on deceased was witnessed by neighbours, then according to us, it is not necessary to record their statement during investigation nor it is necessary to examine them during the trial, as the neighbours are not the witnesses to the incident of assault. Further, we are of the view that presence of P.W.6 daughter of the appellant and deceased is natural at the time of occurrence of the incident. Evidence given by child witness P.W.6 that on hearing the cries of her own brother, she woke up from the sleep is supported by the circumstance, as near the dead body of her helpless mother [ENTITY], clothes of small child were found stained with blood. There is no cross examination about finding of those clothes. There is no challenge to the cross examination of P.W.6 so also in the cross examination of the Investigating Officer. We have also taken a note of the fact that the statement of P.W.6 child witness was immediately recorded by the police on the same day and no contradictions and omissions are apl63.11 brought on record in the evidence of P.W.6 from her statement immediately recorded by police in the investigation. Apart from it, P.W. 6 immediately disclosed the incident witnessed by her to her grand-
father (P.W.1) and on receipt of this information given by P.W.6, P.W.1 alongwith P.W.2 and PW.3 rushed to the spot. This immediate disclosure by P.W.6 about the incident witnessed by her to P.W.1 clearly ruled out that she is tutored witness. Further more, the fact witnessed by her was disclosed to the police in her police statement recorded on the very same day without any exaggeration or subtraction ruled out the possibility that P.W.6 is tutored witness. On the contrary, according to us, the testimony of P.W.6 to be termed as starling testimony.
12. At this juncture, we would like to make a reference to the observations of the Supreme Court in the matter of Shivaji Sahabrao Bobade and Anr. vs. [ENTITY] [(1973) 2 SCC 793], wherein it is held that :-
"Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. Witnesses have to be weighed and not counted since quality matters more than quantity in human affairs."
apl63.11 In the case in hand, considering the nature of evidence, given by [ENTITY], according to us, her testimony can be termed as 'sterling testimony of a competent and honest witness' which can be safely relied upon.
13. Further, we may advert to the observations of the Supreme Court in the matter of [PRECEDENT], wherein it is held by the Apex Court in para 11, that ;-
"Prosecution case based solely on the basic evidence of the deceased's surviving son of five years who was present at the time of place of occurrence and was injured by the accused. Statement of such witness recorded twenty days after the incident owning to his state of mind and injuries sustained by him. On fact, held that testimony of such witness reliable and can be acted upon as regards conviction but not as regards imposition of death sentence."
14. Further, we may like to advert to the observations of the Apex Court in the matter of [PRECEDENT], wherein it is observed in paragraph 11 that as a child witness aged 14 years gave proper account of the apl63.11 incident, his testimony should not be rejected simply on the ground that because of his tender age, he was likely to be tutored. Further, we may like to advert to the observations of the Apex Court in the matter of [PRECEDENT], wherein it is observed by the Apex Court, as under :-
"Testimony of child witness should not be rejected only on the ground that the witness being of a tender age and the Court may seek corroboration of such testimony not as a rule but only by way of caution. Discrepancies in the testimony, if not in material particulars, would lend credence to it. If the child withstands the cross-examination and if the testimony inspired confidence so as to rule out possibility of tutoring, it can be relied upon as the sole basis for convicting the accused. Testimony of sole eye witness, a girl aged 4 years at the time of incident and 6 years of the time of her deposition before the trial court, that appellant inflicted fatal knife blows on the deceased, held on facts, truthful, was corroborated in material particulars and has no inherent defect in it."
15. As we have observed earlier, that from the facts before us, the presence of P.W.6 [ENTITY] is but natural at the place of occurrence because of her immediate discloser of the occurrence, witnessed by her, to her grant-father and because of that her grand-father rushed to apl63.11 residence of the appellant, police statement of P.W.6 was immediately recorded on the date of incident itself ruled out the possibility of tutoring of P.W.6. Further, we have also observed that, the testimony given by P.W.6 was not shaken inspite the child witness has faced ordeal of the cross examination at length. We are of the view that the conviction can be based on the testimony of sole eye witness P.W.6 [ENTITY], the daughter of the appellant.
16. On perusal of the observations of the Supreme court in the matter of [PRECEDENT] (supra) and relied upon by the learned counsel for the appellant, on facts of the case in appeal before the Apex Court that the child had seen the incident in the lantern light and gave their names and on the fact of lantern was burning was not stated in the statement of child witness before the police, the Apex court was of the view that names of the culprit mentioned by the child witness ought to be discarded from material contradictions proved in the evidence of other witnesses. In the case in hand, no material omissions and contradictions are found in the evidence of child witness. In the circumstances, the observations of the Apex Court in the matter of [PRECEDENT] (supra) will not be applicable to the present case. In substance, the evidence of P.W.6 [ENTITY] can be safely relied upon to convict the appellant for the charge of offence of murder of his wife [ENTITY]. It is further corroborated from the apl63.11 weapon found at the spot and recovered at the instance of appellant, which recovery also stands proved and further corroborated with material medical evidence as well as the evidence of finding of blood stains on the articles recovered at the instance of the accused for which no explanation is offered by the appellant at all.
17. Apart from all these facts, one fact is clear that the incident occurred during night hours. It is expected that during night hours, male member of the family must be at the residence, unless otherwise proved that he was not present at his residence. Explanation of the appellant that except bare denial of the case of the prosecution, nowhere explained where he was during the night amount to be a false lame excuse of his absence by taking the defence of total denial of the case of the prosecution.
18. In the substance, for the facts discussed in all foregoing paragraphs, we are of the view that the prosecution has proved the case against the appellant beyond all reasonable doubts.
19. In the premises, the appeal sans any merit and no interference at the hands of this court, in its appellate jurisdiction, is warranted.
The appeal thus fails and the same stands dismissed. We confirm the conviction and sentence recorded by the learned Additonal Sessions apl63.11 Judge, Shahada on 6.10.2010, in [CASE NUMBER].
20. Before parting with the judgment, we appreciate the able assistance rendered by Shri [ENTITY], counsel appointed to represent the cause of the appellant and we quantify the fees payable to him at ` 5000/-.
21. Since the main appeal itself is dismissed, the [CASE NUMBER], filed by the appellant for bail, does not survive and the same is also disposed of accordingly.