{1} Cri. Appeal No.24/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.24 OF 2009 Ashok s/o Ganpatrao Pandit APPELLANT Age-30 years, Occ-Agril R/o Hivra, Tq-Kalamnuri Dist-Hingoli VERSUS The State of Maharashtra RESPONDENT Through Police Station Officer, Police Station, Akhada Balapur Tq-Kalamnuri, Dist-Hingoli ....... Mr.S.S.Rathi, Advocate for the appellant Mr.D.R.Kale, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 2nd December 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.5000/- with a default condition of undergoing further RI for 6 months in the event of non payment of fine, by the Adhoc Additional Sessions Judge Hingoli, {2} Cri. Appeal No.24/2009 by judgment dated 24.12.2008, in Sessions Trial No.41/2003, by this appeal challenges the conviction and sentence. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - PW-6 Anita lodged a complaint at Exhibit-62, which was reduced in writing by PW-11 Waman Hiwale, who was attached to Balapur police station. On the basis of the complaint of PW-6 Anita, an offence punishable u/s 302 of the Indian Penal Code was registered. Thereafter the inquest Panchanama (Exhibit-52) was drawn in the presence of PW-1 Bhimrao. The scene of offence Panchanama (Exhibit-55) was drawn in the presence of PW-2 Kantrao. The appellant / accused came to be arrested under arrest Panchanama (Exhibit-95). The dead body of deceased Chakuli, who was aged 4 years, was referred for Postmortem examination and the Postmortem on the dead body of deceased Chakuli was performed by PW-12 Dr.Amitkumar Degloorkar. PW-12 Dr.Degloorkar noticed the following external injuries on Chakuli- i) Incised wound on the left side of neck from just back to left ear just above ear about the sternal upper end 5 x 2 cms by 3 cms exposing internal structures with cutting of related vessels. ii) Incised wound on the back of the body just 2 cms poster prior to left shoulder joint 3 X 2 cms iii) incised would on the back of body medial to {3} Cri. Appeal No.24/2009 right scapular 5 x 2 x 2 cms iv) Incised would on right side of abdomen from 8 cms below the right nipple to back side of body 8 x 3 cms deep along with expelled out the intestine. Dr.Degloorkar had preserved the viscera and opined that the injuries would be caused by sickle and further opined that the cause of death was hemorrhagic shock due to incised wound on left side neck leading to cutting of large blood vessels and incised wound on the right side abdomen leading to cardio respiratory arrest and death. The Postmortem report is at Exhibit-102. 3. During the custodial interrogation, the appellant / accused expressed his willingness to point out the place, where the sickle had been hidden and accordingly memorandum (Exhibit-57) was drawn in presence of PW-3 Sahebrao. The appellant took the police and Pancha to his house and from a water storage tank produced a sickle, which was seized vide Panchanama (Exhibit-58). Further to the completion of the investigation charge sheet was submitted against the appellant / accused. 4. On committal of the case to the Court of Sessions, the trial court vide Exhibit-14 framed charge against the appellant / accused for an offence punishable u/s 302 and 506 of the Indian Penal Code. The appellant / accused denied the guilt and claimed to be tried. The prosecution, in support of its case, examined 13 {4} Cri. Appeal No.24/2009 witnesses and principally relied upon the testimony of PW-6 Anita and PW-9 Prajkta as eye witnesses to the incident. The trial court accepted the evidence of the prosecution and accordingly convicted and sentenced the appellant / accused. 5. In order to appreciate the submissions advanced before us by Mr.Rathi, learned counsel for the appellant, it would be useful to refer to the evidence of PW-6 Anita. PW-6 Anita, aunt of deceased Chakuli, states that she runs a Kirana shop, which is a part of her residential house. She states that on the day of the incident i.e. on 06.05.2003, PW-10 Sunita, mother of deceased Chakuli, had left Chakuli at her house and had requested her to look after both Prajkta and Chakuli as she was going to the agricultural field. She further states that at about 4 p.m., while she was in her house and Prajkta and Chakuli were playing outside, she heard cries and therefore, came out of the shop and saw the accused inflicting injuries with sickle on the neck of Chakuli. She also witnessed the accused causing injuries with sickle on the right rib of Chakuli. She states that on account of infliction of injuries, intestine of Chakuli protruded out of her stomach. She further states that she picked up Chakuli and raised alarm and at that time the accused had also pointed the sickle at her, however she went near the house of Sulochanabai and PW-5 Sulochanabai came out of her house and questioned as to what had happened. PW-6 Anita narrated the incident to her and informed that the appellant had caused the injuries to Chakuli, by {5} Cri. Appeal No.24/2009 a sickle. Chakuli was, therefore, immediately taken to the medical officer and PW-6 Anita was accompanied by PW-4 Raosaheb and others. On the way, they met Malhari, father of deceased Chakuli and proceeded in his auto rickshaw. Further they also met PW-10 Sunita, who also accompanied them to the medical officer. The Medical Officer, on examination of Chakuli, pronounced her dead. Thereafter the First Information Report was lodged by PW-6 Anita at Exhibit-62. 6. PW-6 Anita has been cross examined at length. She has been cross-examined in respect of the location of her shop, the size of counter in the shop, the height of the counter and the houses of the adjoining neighbours. She has also been cross- examined in respect of the distance between her house and the statue of Dr.Babasaheb Ambedkar. There is no cross-examination in respect of the incident as such. With the assistance of learned counsel for the appellant we have perused the cross-examination minutely and we find that PW-6 Anita has denied the suggestion that Chakuli had fallen from the platform and had sustained the injuries. She has also denied the suggestion that Chakuli had climbed on the counter and fall and the injury was caused to her by the sharp edge of the glass on the counter. The aforesaid suggestions have been denied by PW-6 Anita. At the close of her cross-examination, therefore, we find that the appellant / accused has not made any dent to the statement of PW-6 Anita in her examination in chief. We, therefore, find no reason at all to doubt {6} Cri. Appeal No.24/2009 the evidence of PW-6 Anita, whose presence in her house is most natural and her coming out of the house on hearing the cries is also natural. 7. The prosecution has also examined PW-9 Prajkta, elder sister of deceased Chakuli. The trial court questioned her and found that since she understood the sanctity of oath, administered oath to her. She has described the incident by stating that she, along with Chakuli was playing on the platform of the house of her aunt PW-6 Anita. The appellant / accused came to the shop, which is in front of the house of Anita and was armed with sickle. Thereafter he started inflicting injuries on the neck and rib of Chakuli, by sickle. She states that on seeing the incident, she started weeping and was apprehending danger to herself and, therefore, ran towards the house of PW-5 Sulochanabai. She has then described the clothes on the person of Chakuli, which she identified and has also identified the clothes, which were worn by appellant. 8. In cross-examination PW-9 Prajkta has admitted that at the time of the incident she was studying in Montessori school and timing of the Montessori School were from 9 a.m. to 12 noon. She has denied the suggestion that she had accompanied her mother to the agricultural field. She has further admitted that there was heavy traffic on the road in front of the house of PW-6 Anita. She has admitted that her house is adjoining to the shop of {7} Cri. Appeal No.24/2009 her aunt PW-6 Anita. She has further denied the suggestion that her statement recorded during the investigation was read over to her before she stepped into the witness box. Omission has been duly pointed out that she had not stated in her previous statement that the appellant had inflicted injuries on the neck and ribs of Chakuli. Omission has been duly pointed out that she had not stated in her previous statement about the description of the clothes worn by Chakuli. Omission has been duly pointed out that she had not stated in the previous statement that on account of the injuries sustained by Chakuli, her intestine had protruded out. According to us, the aforesaid omissions are of extremely minor aspect of the prosecution case. It has to be understood that PW-9 Prajkta was aged about 7 to 8 years at the time of the incident. The omissions are in respect of situs of the injuries and there is no omission in respect of the accused inflicting injuries by a sickle. Therefore, according to us, it is inconceivable that a child of 7 to 8 years would give a graphic description of the place where the injuries had been inflicted. The omissions, according to us, do not, in any manner, affect the credibility of this witness. 9. The prosecution has also examined PW-5 Sulochanabai, who was residing near the house of PW-6 Anita. Sulochanabai, in her evidence, states that she had heard the cries of PW-6 Anita and accordingly had come out of her house. She had administered water to Chakuli, who was injured and thereafter had questioned PW-6 Anita as to what had happened and Anita had {8} Cri. Appeal No.24/2009 disclosed that the appellant / accused had caused injuries to Chakuli by sickle. She has been cross-examined and according to us nothing worthwhile has been elicited in the cross-examination which would, in any manner, caste a doubt on the credibility of this witness. 10. Mr.Rathi, learned counsel for the appellant / accused, has urged before us that there is a major variance in the testimony of PW-6 Anita and PW-9 Prajkta. According to learned counsel for the appellant, PW-6 Anita states that on hearing the cries she had come out of the house and yet claims to have witnessed the appellant inflicting injuries to Chakuli. Evidence of PW-9 Prajkta is to the effect that after the injuries had been inflected, she was terrified and apprehended danger to herself and, therefore, ran towards the house of PW-5 Sulochana. It it, therefore, urged before us that Anita does not refer to the presence of Prajkta at the scene of the incident when the accused was inflicting the injuries. It is also faintly urged before us that Anita could not have witnessed infliction of the injuries by the appellant, as Anita was inside the house. 11. According to us, Anita was inside the house and the incident had occurred on the platform of the house. On hearing the cries Anita had immediately came outside the house. The appellant / accused had come to the scene of the incident armed with a sickle. In such state of affairs when Anita had witnessed the {9} Cri. Appeal No.24/2009 appellant causing injuries to Chakuli, it is quite possible that she may not have noticed Prajkta who was present at the scene of the offence. Apart from that presence of Prajkta is deposed by Anita when she states that Prajkta and Chakuli were playing on the platform of her house. Similarly, Soluchana also does not refer to the presence of Prajkta as Prajkta has claimed to have gone towards the house of Sulochana. As pointed out by us above, Prajkta was aged 7 / 8 years at the time of the incident. Failure to notice Prajkta near them when Anita was narrating the incident to Sulochana, according to us, would not in any manner affect the credibility of either PW-6 Anita or PW-9 Prajkta. Anita’s evidence has been fully corroborated by the evidence of PW-5 Sulochana and PW-11 Sunita, mother of deceased Chakuli. Even Sunita states that Anita had informed that the appellant had caused injuries to Chakuli. 12. After scanning the evidence of the prosecution witnesses very carefully, according to us, despite searching cross- examination, the appellant has not been able to make any dent in the evidence of the prosecution witnesses. The prosecution has very carefully woven the fabric of the circumstances and the appellant has not been able to punch any hole in the fabric, which has been woven by the prosecution. We find that the evidence of PW-6 Anita and the evidence of PW-9 Prajkta to be confidence inspiring pieces of evidence. Evidence of Prajkta, as she is a child witness, stands fully corroborated by the evidence of PW-6 Anita. {10} Cri. Appeal No.24/2009 In the light of such overwhelming evidence, therefore, according to us, the prosecution has proved the offence against the appellant beyond reasonable doubt. The present appeal, which is sans merits is, therefore, liable to be dismissed. 13. Accordingly, Criminal Appeal No.24/2009 is dismissed, confirming the conviction and sentence of the appellant. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel24-09