1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.411 OF 2007 Vasudeo Prabhu Padavi, Age 39 years, Occu.Cultivator, R/o Navapada, Taluka Akkalkuwa, District Nandurbar .. APPELLANT (Original Accused) Versus The State of Maharashtra, through Police Sub-Inspector, Police Station, Akkalkuwa .. RESPONDENT Shri R.C.Patil, Advocate for appellant Shri K.G.Patil, Asstt.Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. DATE : 12th November 2009 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.10,000/- with a default stipulation of undergoing further imprisonment for six months in the event of non-payment of fine, by the Ad-hoc District Judge-II and Additional Sessions Judge, Shahada, by judgment dated 31.8.2007, in Sessions 2 Case No.34 of 2006, by this appeal questions his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.11 P.S.I. Rayees Kazi was attached to Akkalkuwa police station and on 28.4.2006 scribed the report of P.W.2 Jemabai who was accompanied to the police station by the villagers and P.W.9 Bhamsing, a Police Patil, at Exh.38. On the basis of the said report offence vide Crime No.22 of 2006 was registered. As a part of the investigation, P.W.11 P.S.I. Kazi visited village Nawapada and went to the house of the appellant and noticed the dead body of deceased Manjulabai. He noticed that she had sustained injuries on her chest, ribs, neck and back. Accordingly, inquest panchnama at Exh.13 came to be drawn in the presence of P.W.10 Lalsingh and another panch witness. The dead body of deceased Manjulabai was referred to Rural hospital at Akkalkuwa for post mortem examination. Thereafter the scene of the offence panchnama at Exh.35 came to be drawn in the presence of P.W. 10 Lalsingh and a letter of request was issued to the Circle Officer for preparing the sketch of the scene of the offence. Blood stained mattress came to be seized under the seizure memo. Statements of witnesses came to be recorded and the wearing apparels of the accused came to be seized vide seizure memo at Exh.2 3. During custodial interrogation, the 3 accused disclosed his willingness to produce a spear which he had hidden and accordingly memorandum came to be recorded and the spear came to be seized vide seizure memo at Exh.26. The seized property was referred to the Chemical Analyzer. Further to the completion of investigation a charge-sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, charge vide Exh.5 came to be framed against the accused for offence punishable under Section 302 and 323 of the Indian Penal Code. The accused denied his guilt and claimed to be tried. Prosecution in support of its case examined 11 witnesses. The trial Court accepted the evidence of P.W.5 Anita and P.W.6 Chandrakiran, daughters of the accused who are said to be eye witnesses to the incident and accordingly convicted and sentenced the accused. The trial Court acquitted the accused of the offence punishable under Section 323 of the Indian Penal Code as P.W.2 Jemabai, mother of accused did not support the prosecution and was declared hostile. 4. Before we deal with the submissions advanced before us by Shri R.C.Patil, learned Counsel for the appellant, it would be useful to refer the evidence of the witnesses. P.W.2 Jemabai, mother of accused and the first informant did not support the prosecution and was declared hostile. Nothing of importance has been elicited in her cross-examination on behalf of the prosecution. The prosecution mainly relied upon the 4 testimony of P.W.5 Anita, an eye witness to the incident. P.W.5 Anita, daughter of the accused states that she had slept on the night of 27.4.2006 and was awakened in the morning at about 2.00 a.m. on hearing the cries of her grandmother. When she woke up she saw that her father was inflicting blows of spear on her mother. She also states that at that time the electric light in the house was burning. She states that the appellant had inflicted blows of spear on the chest, neck, right hand and back of her mother. She, therefore, opened the door and shouted for help. On hearing her cries, P.W.7 Kusha and other villagers came there. She states that her sister Chandrakiran was also awaken on account of the cries. She states that the persons who had assembled there took her father out of the house. In cross-examination she has denied the suggestion that the household articles were scattered. She has admitted that some blood stains were lying and the spear was also lying there. She states that her father is owning two acres of agricultural land. She has denied the suggestion that her father was not present in the house at the time of the incident. She has denied the suggestion that at the instance of her grandfather (mother’s father) she was deposing against the appellant. 5. P.W.6 Chandrakiran also states that on hearing the cries of her grandmother and of P.W.5 Anita, she was awaken. She had noticed her father inflicting blows by spear on her mother. She states that Anita opened the door and shouted for help and on hearing the cries of Anita, 5 P.W.7 Kusha and others had arrived at the scene and had apprehended her father. She too was cross-examined and in the cross-examination she has admitted that the house of the appellant is admeasuring 30’ x 40’ and has three doors. She has admitted that on the day of the incident, the household articles in the house were scattered and some blood stains were lying in the house. She has denied the suggestion that the spear was not seen in the house. She states that an axe was noticed in the house. She has denied the suggestion that at the behest of her grandfather she was deposing false. 6. It would thus be seen that the prosecution has examined the two daughters of the appellant as eye witnesses to the incident. Both these witnesses have been cross-examined at length and nothing of importance has been elicited in the cross-examination to disbelieve their version. Both these witnesses are natural witnesses and their presence in the house is also natural. At the close of the cross-examination, we find that both these witnesses are reliable and we have no hesitation in accepting their testimony though both these witnesses are child witnesses. The evidence of these witnesses stand corroborated by the evidence of P.W.7 Kusha who states that on hearing the cries of the daughter of the appellant he had rushed to the scene and had apprehended the accused. In the cross-examination he has admitted that his statement came to be recorded after one month of the incident by the Police at Akkalkuwa. He has admitted that his statement has been read 6 over to him. He has stated that he could not describe the clothes which were worn by the accused. 7. The prosecution has placed reliance upon the factum of the recovery of the spear at the behest of the accused. Shri R.C.Patil, learned Counsel for the appellant has urged before us that P.W.5 Anita has admitted that she had seen the spear lying in the house and as such the recovery at the behest of the accused becomes doubtful. According to us, even if the evidence of P.W.7 Kusha and the factum of recovery of the spear at the behest of the accused are ignored, the evidence of P.W.5 Anita and P.W.6 Chandrakiran which is found by us to be reliable, establishes the offence against the appellant beyond reasonable doubt. The appellant was apprehended from the room in which dead body of deceased Manjulabai was found at 2.00 a.m. The attention of the other witnesses was invited on account of the cries for help which were raised by P.W.2 Jemabai and P.W.5 Anita. The appellant has offered no explanation whatsoever for the injuries sustained by deceased Manjulabai. It also does not appear that anyone else except the accused had committed the offence. 8. Shri R.C.Patil, learned Counsel for the appellant has urged before us that no reliance ought to be placed on the testimony of P.W.5 Anita and P.W.6 Chandrakiran as these witnesses are child witnesses and are susceptible to be tutored. It is true that both these witnesses are 7 child witnesses but we have perused their evidence and nothing has been elicited in their cross-examination to even remotely indicate that these witnesses have been tutored. We have already observed that the presence of these witnesses in the house is natural. The house comprises of a big room admeasuring 30’ x 40’. Dead body of deceased Manjulabai was found in the room when the accused was present in the house and the accused was apprehended by the villagers from the room. In such circumstances, therefore, according to us merely because P.W.5 Anita and P.W.6 Chandrakiran are child witnesses, their testimony need not be rejected on that score. 9. It is urged by Shri R.C.Patil, learned Counsel for the appellant that the appellant was not present in the house at the time of incident and suggestions have been put to the witnesses in this behalf. Merely putting the suggestions is not enough and the aforesaid suggestions have been denied by the witnesses. The appellant has failed to establish his alibi and in such circumstances the presence of the accused at the scene of the offence at 2.00 a.m. in the morning is firmly established on the basis of the testimony of the child witnesses. The prosecution has been able to establish that it was the appellant and appellant alone who had committed murder of his wife Manjulabai. We, thus, see no merit in the appeal and, therefore, appeal deserves to be dismissed. 8 10. Accordingly, Criminal Appeal No.411 of 2007 is dismissed confirming the conviction and sentence. ( A.V. NIRGUDE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal411.07)