1 Criminal Appeal No.594 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.594 OF 2009 Vitthal @ Vithoba S/o.Rachappa Pethkar, Age-36 years, Occu-Agriculturist, R/o.Mali Lane, Nilanga, Tq.Nilanga, Dist. Latur APPELLANT VERSUS The State of Maharashtra RESPONDENT Mr.Satej S.Jadhav h/f. Smt.S.S.Jadhav, learned counsel for the appellant. Mr.D.V.Tele, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 15/02/2011 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 302 of The IPC and sentenced to imprisonment for life and to pay of Rs.1,000/-, in default of which to undergo the further imprisonment for 3 months, by the Additional Sessions Judge, Nilanga, by judgment dated 17/08/2009, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this 2 Criminal Appeal No.594 of 2009 appeal, may briefly be stated thus : P.W.No.7 P.S.I.Dhondiram Shetiba Gaikwad, who was attached to the Nilanga Police Station, on 11/09/2007, registered an offence vide Crime No.109/2007 u/s. 302 of The IPC, on the basis of the complaint of P.W.No.1 Gopichand Ambadas Kshirsagar at Exh.11. After registration of the crime, the investigation of the said crime was handed over to P.W.No.13 A.P.I. Phulchand Chokhela Rathod. P.W.No.13 A.P.I. Rathod, who was attached to Nilanga Police Station, was entrusted with the investigation of Crime No.109/2007. He, accordingly, visited the scene of the offence, and drew the scene of the offence panchmama at Exh.14 in the presence of the panch witnesses. From the scene of the offence, samples of blood stained mud and ordinary mud came to be drawn. He also drew the inquest panchnama of the dead body of deceased Gayabai in the presence of the panch witnesses at Exh.12. He recorded the statements of the witnesses and referred the dead body for post mortem examination. Post mortem on the dead body of deceased Gayabai came to be performed by P.W.No.11 Dr. Shiriniwas Vinayakrao Kulkarni. Dr.Kulkarni noticed the following external injuries. 1. C.L.W. just below the left eye running horizontally, size 2 x ½ x ¼ cm. with oozed blood. There was blood oozing on right side, oozed blood on the bridge of nose and medial canthus of right eye. The oozed blood was thick, dark brown in colour. The blood oozed was hard to clean from the face. 3 Criminal Appeal No.594 of 2009 2. Contused abrasion on the left side of neck. 2 cm from midline in the middle part of the neck measuring 1 x ½ cm red in colour. 3. Contused abrasion just ¼ cm lateral to above injury, red in colour, measuring 1 x ½ cm. 4. Contused abrasion on right side of the neck. 1.5 cm from midline in middle part of neck, measuring 1 x ½ cm, red in colour. 5. Contused abrasion in middle 1/3rd of sternocleido mast void muscle size 1 x ½ cm. 6. Contusion on left chin, red in colour, 2 x 1 cm. 7. On back of neck; Contused abrasion on left side, obliquely directed, one below another, three in number, red in colour, 7 cm behind angle of mandible, just below hairline., above downward measuring, i) 3.5 cm x 0.5 cm, red in colour. ii) 3.5 cm x 0.5 cm, red in colour, iii) 2.5 cm x 0.5 cm, red in colour. 8. Contused abrasion on right side, obliquely directed one below other, two in number, red in colour, 6.5 cm behind angle of mandible, just below hair line, above downward admeasuring, i) 3.5 cm x 0.5 cm, red in colour, ii) 3.5 cm x 0.5 cm, red in colour. 9. Contusion on left side of abdomen in lumbar region, lateration 3 cm away from umbilicus 3.5 cm x 2.25 cm. red in colour. 4 Criminal Appeal No.594 of 2009 10.Contusion right hypochondriacal region 3.5 cm x 1 cm, red in colour, 5.5 cm below right nipple. 11.Contused Abrasion on left thigh, middle 1/3 medial side i) 3.5 cm x 2.75 cm, red. ii) 4 x 3 cm, red in colour, just below above. 12.Contused abrasion on right back in loin region, i) 2 x 1.5 cm, red coloured, 2cm. away from midline. ii) 2 x 1.5 cm, red coloured, just below above. 13.Contused abrasion on left side of back, loin region. i) 2.5 cm x 1.5 cm, red in colour, 2 cm away from midline. ii) 2.5 cm x 1.5 cm, red in colour, just below above. On internal examination, he noticed ecchymosis and scanty haemorrhage's below the external injuries on the neck. The stomach contained 300 ml of semi-digested liquid of yellow colour food particles. He has opined that the injury below the left eye can be caused by a sickle like object i.e. Article 6. He opined that cause of death was asphyxia due to throttling. The post mortem report is at Exh.36. The advanced cause of death certificate is at Exh.37. 3. The appellant/accused came to be arrested on 01/10/2007 and cloths on his person came to be seized vide seizure memo. During custodial interrogation, the appellant/accused discloses on 03/10/2007 his willingness to point out the place where the weapon namely sickle was hidden by him. Accordingly, the memorandum of 5 Criminal Appeal No.594 of 2009 the appellant/accused came to be recorded at Exh.44 in the presence of the panch witnesses. The appellant then led the police and the panch to his field and produced one sickle, which had been concealed under the stone. The sickle came to be seized vide seizure memo at Exh.45. The said sickle is Article no.6. The seized property came to be referred to the Chemical Analyser through P.W.No.6 lady Police Head Constable Bhartibai Gholap. The Circle Officer was requested to draw the sketch of the scene of the offence and accordingly the sketch came to be drawn by P.W.No.9 Vitthal Gangaram Patil, a Revenew Inspector. Further to the completion of investigation, a charge sheet against the accused came to be filed. 4. On committal of the case to the Court of sessions, Trial Court, vide Exh.5 framed charge against the accused for offence punishable u/s. 302 of The IPC. The appellant/accused denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 13 witnesses. The defence of the appellant accused was of denial and he had pleaded alibi by stating that he had gone to Hydrabad and was not present in his village when the incident is alleged to have occurred. The Trial Court, relying upon the evidence of the solitary eye witness P.W.No.3 Krushna, convicted and sentenced the appellant as afore stated. 5. In order to effectively deal with the submissions advanced before us by Shri.S.S.Jadhav, learned counsel for the appellant, and 6 Criminal Appeal No.594 of 2009 the learned A.P.P. for State, it would be useful to refer to the evidence of the prosecution witnesses. 6. The pivot of the prosecution case revolves around the testimony of P.W.No.3 Krushna, son of deceased Gayabai and of the appellant. P.W.No.3 Krushna states that he alongwith his parents and his brother and sister, was residing at Nilanga in a small tin shed constructed in the agricultural field of the appellant. He states that at the time of the incident, he was studying in Maharashtra Vidyalaya at Nilanga in the 6th standard. He states that earlier the accused was illtreating his wife deceased Gayabai and on account of that Gayabai was residing at the house of her brother alongwith her children. Gayabai had filed an application for maintenance, which came to be granted to her. The arrears of the maintenance, amounting to Rs.94,000/-, were outstanding against the appellant. The appellant, however, promised that he would not illtreat Gayabai and would treat her and her children well and on that understanding, Gayabai and her children began to reside with the appellant at Nilanga in the tin shed, constructed in his agricultural field. Krushna also states that the appellant/accused was illtreating deceased Gayabai as he was suspecting her character. In respect of the incident, he states that his parents had gone to work in the agricultural field as agricultural labourers and after returning from the agricultural field, had gone to Nilanga for receiving the payment. Thereafter, both of them returned at about 8.00 p.m. and then the 7 Criminal Appeal No.594 of 2009 family took dinner and retired to bed. He states that during the night, he was awakened on hearing the cry of his mother Gayabai, and saw that the appellant was sitting on the person of his mother and was pressing her neck. Krushna further states that the appellant inflicted an injury below the left eye by sickle. Krushna states that thereafter, he went back to sleep. In the morning when he woke up, he tried to wake his mother, but his mother was not rising and therefore he informed this fact to his grand-father, uncle and one Agre Appa. They came and saw his mother and declared that Gayabai was no more. In cross examination, he has admitted as true that the appellant and his brothers were residing separately and that they were cultivating their lands individually. He has further agreed as true that after his mother had re-joined the company of his father, there were no quarrels between them. In further cross examination, he has admitted that the electric light connection is taken from the pole of Agre Appa, and electric bulb was burning in the shed during the night of the incident. The cry of his mother is described by him as, “my mother was making noise from her throat”. He has admitted that on seeing the incident, he did not raise any cries for help. He was unable to state the time when the police had arrived and the date when his statement came to be recorded. 7. P.W.No.4 Shivraj Basappa Agre, an agriculturist, who has his 8 Criminal Appeal No.594 of 2009 agricultural land adjacent to the field of the accused, states about the earlier instances of mis-behaviour of the appellant with his wife Gayabai and then states that on the day of the incident, he has left for his field in the morning and was about to return home, when the son of accused namely Krushna came and informed him that his mother did not wake up and that his father had killed her and had gone away. He states that Krushna was weeping. He further states that grand-father of Krushna was drawing water from the well. He states that he informed the grand-father of Krushna and grand father of Krushna had gone in the shed. Grand-father of Krushna came out and informed him that Gayabai had expired. He then states that Balaji, brother of the appellant/accused had arrived there and Balaji was also informed that Gayabai had died. Though he has been cross examined, nothing of importance has been elicited in his cross examination. 8. P.W.No.1 Gopichand Ambadas Kshirsagar, the brother of deceased Gayabai and the first informant states about the illtreatment given by the appellant to his wife Gayabai and about Gayabai residing at village Kharosa alongwith her children. He then states that the arrears of maintenance had amounted to Rs.94,000/- and the accused had thereafter come to village Kharosa and had requested Gayabai to reside with him, promising her that he would not assault her in future. Accordingly, the appellant took Gayabai and her children and began to reside in the shed constructed in his 9 Criminal Appeal No.594 of 2009 agricultural field. He states that brother in law of Gayabai informed him that Gayabai had died. He states that he alongwith other villagers had gone to the house of the accused and had seen the dead body of Gayabai. He had noted the injuries sustained by Gayabai and thereafter had lodged complaint at Exh.11. In cross examination, he has admitted as true that the accused was not assaulting Gayabai after the birth of the 3 children. He has admitted that he had taken Gayabai and her children alongwith him to village Kharosa. He was unable to state the exact year when Gayabai had filed a case for maintenance. He was also unable to state the exact amount of maintenance granted by the Court to Gayabai and her children. Again nothing of importance has been elicited in his further cross-examination. Though this witness has not stated in his examination in chief that he had asked Krushna and that Krushna had disclosed the incident to him, yet in the first information report, there is recital about Krushna disclosing incident to him on Gopichand questioning Krushna. Since there is no evidence to that effect, the aforesaid recital will have to be left out of consideration. 9. Prosecution has also examined P.W.No.5 Anjana, sister in law of deceased Gayabai. Anjana also states about the instances of cruelty and about Gayabai filing application for maintenance. She also states that she was informed by Balaji Pethkar about the death of Gayabai. She states that on reaching the house of the accused, 10 Criminal Appeal No.594 of 2009 she had inquired from Krushna and Krushna had told her about the incident. Though she has been cross-examined, there is virtually no cross examination respect of the fact that the incident was narrated to her by P.W.No.3 Krushna. 10. P.W.No.8 Jalindar Tukaram Kshirsagar, cousin of deceased Gayabai also states about the illtreatment which was given by the appellant to Gayabai. In respect of the incident, he states that he had learnt about the death of Gayabai and had come to Nilanga in tempo. He states that he had seen the dead body of Gayabai and had noticed the injuries sustained by Gayabai. He also states that he had questioned Krushna and Krushna had told him that accused had killed Gayabai. There is virtually no cross examination in respect of the fact that Krushna had narrated the incident to this witness. 11. Prosecution had relied upon the discovery memorandum at Exh.44 and the consequential recovery of the sickle vide seizure memo at Exh.45. However, the report of the Chemical Analyser discloses that no blood was found either on the sickle or on the clothes of the appellant. Moreover, the discovery of the weapon is after more than a month of the incident and therefore the aforesaid discovery will have to be left out of consideration. 12. Shri.Jadhav, learned counsel for the appellant has urged before 11 Criminal Appeal No.594 of 2009 us that no reliance can be placed on the evidence of P.W.No.3 Krushna because, 1. Krushna is a child witness and is susceptible to being tutored. 2. Evidence of Krushna ought not to be accepted unless the evidence is corroborated by the other independent witnesses, 3. The conduct of Krushna completely belies his statement that he had been witnessed the incident. 13. The learned A.P.P. has supported the findings recorded by the Trial Court. 14. It is true that a child witness is susceptible to being tutored and therefore the Courts ought to be diligent while accepting the evidence of a child witness. It is true that generally the evidence of a child witness ought not to be accepted unless there is corroboration from other independent witnesses. However, in the present case, we find that Krushna’s claim as having witnessed the incident is corroborated by the immediate disclosure made by him to P.W.No.4 Shivraj Agre, P.W.No.5 Anjana and P.W.No.8 Jalindar. There is virtually no cross examination in respect of the fact that these witnesses had questioned Krushna and Krushna had disclosed the incident to them. It is true that the evidence does not indicate that Krushna had narrated the entire incident in detail. However, that by itself would not detract the fact that Krushna had immediately disclosed the incident. Even a simple statement of Krushna that the 12 Criminal Appeal No.594 of 2009 appellant had killed his mother, would be sufficient corroboration to the testimony of P.W.No.3 Krushna that he had seen his father committing murder of deceased Gayabai. Shri.Jadhav, learned counsel for the appellant has urged before us that on seeing the incident, Krushna went back to sleep and therefore the behaviour and conduct of P.W.No.3 Krushna is extremely un-natural. Krushna was aged about 11-11 ½ years at the time of the incident. He was awakened from the deep sleep on hearing the cry of his mother. It is quite natural that the child would fall off to sleep again. We, therefore, do not find that the behaviour or the conduct of Krushna to be un-natural or un-natural to such an extent as would impel the Court to discard the evidence of Krushna. As pointed out by us above, evidence of Krushna is amply corroborated by the immediate disclosure made by him to the other witnesses. Even in the FIR, there is recital that Krushna had disclosed the incident to P.W.No.1 Gopichand. However, since Gopichand does not depose about this in his examination in chief, the aforesaid recital in the FIR will have to be left out of consideration. The immediate disclosure of Krushna to this witness therefore rules out any possibility that Krushna was tutored. The disclosure were made even prior to lodging of FIR and therefore it can not be even remotely said that Krushna is a tutored witness. 15. We have examined the evidence on record and we find that the prosecution has been able to establish the offence against the 13 Criminal Appeal No.594 of 2009 appellant beyond reasonable doubt. The appeal filed by the appellant therefore is sans any merit and deserved to be dismissed. We accordingly dismiss the appeal confirming the conviction and sentence of the appellant. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/FEB. 2011/cri.appeal 594-09