1 Cri.Appeal No. 616 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 616 OF 2009 Pandurang s/o Manikrao Birajdar, Age : 33 yrs, Occu. Driver R/o Dawatpur, Tq. Ausa, District Latur (presently in jail) ..APPELLANT (Original Accused) VERSUS The State of Maharashtra ..RESPONDENT Mr C.V. Dharurkar, Advocate (appointed) for the appellant; Mrs R.K. Ladda, Asst. Public Prosecutor for the respondent. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 3rd March, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and under section 498-A of the Indian Penal Code and is sentenced to imprisonment for life and to pay fine of Rs.500/-, in default to suffer further R.I. for one month and R.I. for one year and to pay fine of Rs.500/-, in default to undergo further R.I. for one month and with no separate sentence under section 323 of the Indian Penal Code, by the Additional Sessions Judge, Latur, by judgment 2 Cri.Appeal No. 616 of 2009 dated 8.10.2009, in Sessions Case No.10 of 2008, by this appeal questions the correctness of 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.10 Tushar Doshi, who was then working as the Sub Divisional Police Officer at Latur and having additional charge of Ausa Sub- Division, was informed by A.P.I. Bansode, in-charge of the Killari police station about the commission of murder of deceased Sangita. P.W.10 Additional Superintendent of Police Shri Doshi immediately proceeded to the scene of the offence. A report came to be lodged by P.W.2 Mallikarjun at Exh.27. On the basis of the said report an offence came to be registered and the dead body of deceased Sangita was referred for post mortem examination. Post mortem on the dead body of deceased Sangita came to be conducted by P.W.8 Dr. Bibishan Jadhav. He noticed multiple injuries on the whole body of the victim i.e. abrasion, contusions on thigh, chest, buttocks and three wounds on occipital bone. He also noticed fracture of hyoid bone. He opined that all the injuries were ante mortem and cause of death was throttling due to secondary to asphyxia with severe haemorrhage inside abdomen. The post mortem report is at Exh.48. From the scene of the offence the blood stains came to be collected and hair was seen adhering to the stick lying on the scene of the offence. Four buttons of the blouse were also lying on the scene. All 3 Cri.Appeal No. 616 of 2009 the articles including broken pieces of bangles came to be seized in the presence of panchas vide scene of the offence panchnama at Exh.54. Since the appellant was absconding, A.P.I. Bansode was directed to search and apprehend him. Statements of witnesses came to be recorded and thereafter a letter came to be addressed to the Circle Inspector for drawing the sketch of the scene of the offence. The clothes on the person of the deceased came to be seized vide seizure memo at Exh.23 in the presence of the panchas. The appellant came to be apprehended by A.P.I. Bansode and came to be arrested along with the other accused vide arrest panchnamas at Exhs.59 and 60. A mobile handset came to be seized from the accused vide seizure memo at Exh.24 in the presence of witnesses. During custodial interrogation original accused no.2 Sugalabai expressed her willingness to point out the place where the clothes worn by the deceased were kept. Accordingly, the clothes came to be seized vide seizure memo at Exh. 25. During custodial interrogation, the appellant/original accused no.1 expressed his willingness to point out the place where the screw driver was concealed. Accordingly, a memorandum at Exh.43 came to be drawn. The appellant led the police and the panch to the place and from the bushes produced screw driver, which came to be seized vide seizure memo at Exh.44. The seized articles were referred to the Chemical Analyser vide requisition at Exh.63. Statements of witnesses came to be recorded under section 164 of the Code of Criminal Procedure. The report of the Chemical Analyser indicates that the screw driver which was 4 Cri.Appeal No. 616 of 2009 produced by the appellant/accused was found stained with the blood group matching that of the deceased as well as the stick which was recovered from the scene of the offence. Further to the completion of investigation a charge-sheet against the appellant/accused came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed charge against the appellant and original accused no.2 for offence punishable under section 302 read with sec.34, 498-A read with sec.34 and 323 read with sec.34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined ten witnesses. The entire prosecution case revolves round the evidence of P.W.3 Parvati, a child witness. The Trial Court accepted the evidence of this witness coupled with the discovery of the screw driver and convicted and sentenced the appellant while acquitting original accused no.2. 4. In order to effectively deal with the submissions advanced before us by the learned Counsel appointed on behalf of the appellant and the learned Asstt. Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. P.W.2 Mallikarjun, uncle of deceased, states that deceased Sangita was married to the appellant/accused, who was working as a Jeep Driver. 5 Cri.Appeal No. 616 of 2009 Sangita had given birth to a son and a daughter named Babarao and Parvati. According to P.W.2 Mallikarjun, the appellant, under the influence of liquor, used to assault Sangita alleging that he disliked her appearance and, therefore, wanted to perform a second marriage. The relatives of Sangita had tried to placate the appellant/accused but the appellant/accused did not relent. One Umakant Biradar informed P.W.2 Mallikarjun that the appellant had committed murder of Sangita. P.W.2 Mallikarjun accordingly rushed to the house of Sangita and noticed the dead body of Sangita. He then inquired with P.W.3 Parvati and Babarao and both of them disclosed to him that on the day of the incident the appellant/accused had returned home at about 4.00 p.m. and under the influence of liquor had hurled a chappal at Sangita. Appellant thereafter dragged Sangita inside the house and assaulted her. Thereafter the appellant made Sangita to stand on a stool and and then hanged her with a sari. Thereafter the appellant lowered the dead body of Sangita on the ground and fled from the scene of the offence. P.W.3 Parvati further disclosed to him that the appellant had hurled the mobile handset at Babarao and had also brought a stick of Neem tree and had assaulted deceased Sangita. She further states that original accused no.2, grandmother of Parvati, had applied turmeric powder to the injuries sustained by deceased Sangita. On hearing this from P.W.3 Parvati, P.W. 2 Mallikarjun telephoned the police and after arrival of the police at the scene of the offence lodged his report at Exh.27. P.W.2 Mallikarjun has been cross-examined on behalf of the appellant. He has denied the 6 Cri.Appeal No. 616 of 2009 suggestion that Sangita was not a good looking person and had pox marks on her face. He has also denied the suggestion that Sangita was bed-ridden for the last four months and was suffering from Tuberculosis. He has also denied that the appellant/accused used to take Sangita to Ausa for medical treatment. P.W.2 Mallikarjun has admitted that he had not filed any complaint prior to the incident against the appellant. Though P.W.2 Mallikarjun has been cross-examined at length, nothing of importance has been elicited in his cross-examination to doubt, firstly about receiving the telephone call and secondly about going to the scene of the offence and P.W.3 Parvati and Babarao narrating the entire incident to him. In fact, what was narrated to him by P.W.3 Parvati stands reflected in the first information report at Exh.27. 5. Prosecution has also examined P.W.3 Parvati, who was then aged 9 years and who was the daughter of the appellant and deceased Sangita. She states that her father used to assault deceased Sangita after consuming liquor. She has also stated that the appellant used to assault her as well as her brother Babarao. She states that on the day of the incident her father had returned home at about 4.00 p.m. The appellant had consumed liquor and on coming home hurled a chappal at deceased which hit her on her face. Thereafter he brought a stick of Neem tree and assaulted deceased Sangita. The appellant also hurled a mobile handset at her brother. Parvati further states that the appellant 7 Cri.Appeal No. 616 of 2009 made Sangita stand on a stool and then hanged her with a sari to a hook attached to the ceiling. Thereafter the appellant lowered the dead body of Sangita and then her grand-mother applied turmeric powder to the injuries. She further states that her grand-mother told her not to disclose the name of the appellant. She states that she had actually witnessed the incident. In cross-examination nothing of substance is elicited. She has denied the suggestion that Sangita was bed-ridden for about four months prior to the incident. She has also denied the suggestion that the appellant had taken Sangita for treatment to a hospital. She then admits that her mother used to beat the appellant sometimes. She has also admitted that the appellant used to consume liquor daily. She then states that the appellant had shut the door after he had dragged her mother inside while she and her brother were weeping outside. 6. On the basis of the evidence of P.W.3 Parvati, Shri Dharurkar, learned Counsel appointed on behalf of the appellant has urged before us that no reliance ought to have been placed by the Trial Court on the testimony of P.W.3 Parvati as she is a child witness. It is urged by Shri Dharurkar, learned Counsel for the appellant that children are notoriously susceptible to being tutored and, therefore, no reliance ought to have been placed. Mr Dharurkar has further urged before us that since P.W.3 Parvati has admitted that the appellant had shut the door, it was virtually impossible for Parvati to have witnessed the incident. The learned 8 Cri.Appeal No. 616 of 2009 Asstt. Public Prosecutor has supported the findings recorded by the Trial Court and has urged for dismissal of the appeal. 7. It is true that children are generally susceptible to being tutored. However, no foundation has been laid to presume that Parvati is a tutored witness. In fact, at the earliest opportunity P.W.3 Parvati had disclosed the incident to P.W.2 Mallikarjun, which stands reflected in the first information report at Exh.27. Thus, the evidence of P.W.2 Mallikarjun corroborates the version of P.W.3 Parvati. Further, no foundation has been laid in the cross-examination to even remotely infer that P.W.3 Parvati is a tutored witness. In such circumstances, therefore, we find that implicit reliance can be placed on the testimony of P.W.3 Parvati. It is, no doubt, true that she has admitted in her cross-examination that the appellant had shut the door. However, the cross-examiner has not elicited answers further to indicate that upon shutting the door what went inside the room was not visible to P.W.3 Parvati. The statement of Parvati that she had actually witnessed the incident about appellant strangulating deceased Sangita is not shaken in the cross-examination. Thus, we find that despite the admission given by P.W.3 Parvati in her cross-examination, implicit reliance can be placed on her testimony. 8. Evidence of P.W.5 Dattatraya, also to a large extent, corroborates the evidence of P.W.3 Parvati. P.W.5 Dattatraya, a neighbour of P.W.3 Parvati states about the appellant/accused frequently assaulting 9 Cri.Appeal No. 616 of 2009 deceased Sangita while the appellant/accused was under the influence of liquor. P.W.5 Dattatraya further states about the appellant/accused arriving at his house at about 4.00 p.m. under the influence of liquor and assaulting his wife. Though he has been cross-examined, nothing of importance has been elicited in the cross-examination except an admission that P.W.5 Dattatraya had intervened in the quarrel and thereafter the appellant/accused had gone to consume liquor. He has denied the suggestion that the appellant/accused came home on the next day. 9. Prosecution has also examined the panch witness to the discovery memorandum, namely P.W.7 Goroba. Though Goroba has been cross- examined, he has remained firm about the appellant/accused making the disclosure statement and the screw driver being recovered at the behest of the appellant/accused. P.W.7 Goroba, however, states that the screw driver came to be recovered from the bushes of "Toor". The Investigating Officer P.W.10 Tushar Doshi, however, states that the screw driver came to be recovered from the bushes of Kekati and Subabool plants. On the basis of the aforesaid statements, the learned Counsel for the appellant has urged before us that no reliance whatsoever can be placed on the evidence of the prosecution witnesses as there is discrepancy in respect of the place from where the screw driver came to be recovered. The description of the place is stated in the panchnama at Exh.44. Upon perusal, we find that there is no discrepancy worth the name, much less 10 Cri.Appeal No. 616 of 2009 entitling the Court to reject the reliable evidence of the panch witness and that of the Investigating Officer. Even otherwise, if the recovery of the screw driver is left out of consideration, there is overwhelming evidence of P.W.3 Parvati, which establishes that the appellant/accused had committed murder of deceased Sangita. The screw driver, it may incidentally be stated, was found stained with blood which matched the blood group of deceased. 10. The appellant/accused has been convicted for an offence punishable under section 498-A of the Indian Penal Code. We have carefully scrutinized the evidence of the prosecution witnesses and we find that there is no evidence for justifying the conviction of the appellant for offence punishable under section 498-A of the Indian Penal Code. The appeal, therefore, will have to be partly allowed and the conviction and sentence of the appellant for offence punishable under section 498-A of the Indian Penal Code will have to be quashed. Curiously, we find that the appellant has also been convicted for the offence punishable under section 323 of the Indian Penal Code on the ground that the appellant had assaulted deceased Sangita. Since the appellant has been convicted for offence punishable under section 302 of the Indian Penal Code, the charge itself ought not to have been framed against the appellant for offence punishable under section 323 of the Indian Penal Code. In any event, the appeal also will have to be partly allowed and the conviction of the appellant for offence punishable under section 323 of 11 Cri.Appeal No. 616 of 2009 the Indian Penal Code will have to be quashed and set aside. 11. We accordingly partly allow this appeal. The conviction and sentence of the appellant for offence punishable under section 498-A of the Indian Penal Code and conviction of the appellant for offence punishable under section 323 of the Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the aforesaid offences. Fine, if paid by the appellant, be refunded to him. Criminal Appeal is dismissed in respect of challenge to the conviction of the appellant for offence punishable under section 302 of the Indian Penal Code. His conviction and sentence, therefore, for offence punishable under section 302 of the Indian Penal Code is confirmed. Appeal is accordingly partly allowed. We quantify the fees payable to Shri C.V. Dharurkar, learned Counsel appointed on behalf of the appellant at Rs.5,000/-. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria616.09