1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.211 OF 2005 Arjun Krishna Agawane, C.No.2492, Kalamba Central Prison, Kalamba­416 007, Kolhapur. ...Appellant. Versus The State of Maharashtra. ...Respondent. ....... Mr.Arfan Sait for the Appellant. Mrs. M.M. Deshmukh, APP for the Respondent. ...... CORAM : MRS.RANJANA DESAI & DR. D.Y. CHANDRACHUD, JJ. October 1, 2008. JUDGMENT (Per Dr. D.Y. Chandrachud, J.) : The Appellant was charged of an offence punishable under Section 302 of the Penal Code for intentionally or knowingly causing the death of his wife Gayabai on 14th June 2002 by assaulting her on the head with Karanja wood. The Additional Sessions Judge, Sangli, by a judgment dated 14th January 2004 convicted the 2 Appellant of the offence with which he was charged and sentenced him to suffer imprisonment for life; to pay a fine of Rs.500/­ and in default, to rigorous imprisonment for a period of six months. 2. The Appellant was married to Gayabai and the couple had three children. For some time, the family resided at Mumbai. The case of the prosecution is that the Appellant used to suspect the fidelity of his wife. The room in Mumbai, which was occupied by the Appellant and his family, was sold and all of them moved to village Mayani. Gayabai used to work as a labourer while the Appellant appears to have worked as a driver. According to the prosecution, the Appellant had continuously harassed Gayabai and suspected her character. Gayabai is alleged to have been driven out of the house, upon which the family resided at Bhikwadi at the house of Gayabai's brother. The incident which forms the basis of the prosecution, took place on 14th June 2002. The Appellant is alleged to have proceeded to Waduj that morning from where he is alleged to have returned at noon time. At about 3 p.m., the Appellant is alleged to have assaulted 3 Gayabai, first with fist blows on her eye and thereafter, on the head with a block of wood (Karanja). Anuj (PW 1), the fourteen year old son of the Appellant is alleged to have witnessed the incident and on seeing the assault, rushed out of the house to inform her relatives. Gayabai' s step brother Santram (PW 2) rushed to her room and is alleged to have witnessed the Appellant bearing down upon her while sitting on her stomach. PW 2 arranged for a bullock cart by which Gayabai was taken to Mayani from where she was taken by a vehicle to Vita for hospitalization. Gayabai succumbed to her injuries. PW 2 Santram lodged a First Information Report on 15th June 2002. The Appellant was arrested on 15th June 2002. The Appellant was committed to trial and was charged of having committed an offence punishable under Section 302 of the Penal Code. The Additional Sessions Judge, Sangli convicted the Appellant and sentenced him to suffer imprisonment for life. 3. On behalf of the Appellant, it has been submitted that (i) PW 1, who is the main witness, is a fourteen year old child witness, 4 who was residing with his maternal uncle after the death of his mother and has been tutored; (ii) PW 1 admitted that his father had gone to Waduj on the date of the incident which would in fact, support the plea of alibi adopted by the Appellant; (iii) PW 1 had stated during the course of his deposition that several people had gathered after the incident which he subsequently denied; (iv) There was a delay of one day in the lodging of the First Information Report by PW 2 Santram; and (v) Even on the hypothesis that the death of Gayabai was caused as a result of the assault committed by the Appellant, the incident occurred on the spur of the moment and there was no intention on the part of the Appellant to cause the death of his wife. 4. On the other hand, it has been submitted by the Learned APP that nothing has been elicited in the course of the cross­ examination of PW 1 – the fourteen year old son of the Appellant and the deceased – that would justify discrediting his testimony. PW 1, it has been averred, is a witness of truth who was in a position to understand the events which had taken place and the consequences 5 of his deposition. It was urged that the evidence of PW 1 is corroborated by PW 2, the step brother of the deceased, who immediately rushed to the spot. The Learned APP urged that the medical evidence would show that the injury that was caused by the Appellant was on a vital part of the body, namely, the head and resulted into the death of the deceased. Hence, it was submitted that the Learned Judge was justified in sustaining the conviction under Section 302 of the Penal Code. 5. PW 1 Anuj is the fourteen year old son of the Appellant and Gayabai. The Learned Trial Judge noted that before the commencement of the Examination­in­Chief, questions had been put by the Court to the witness from which it was revealed that the witness was conscious of the sanctity of his oath. PW 1 deposed that he was residing with his mother, brother and sister at Bhikwadi. Prior thereto, the family resided at Mumbai where the Appellant was working as a driver. PW 1 deposed that the Appellant used to suspect the fidelity of Gayabai and used to beat her after consuming 6 liquor. On one occasion, the Appellant is alleged to have assaulted Gayabai on her leg with a knife. Eventually, he is alleged to have sold the room in Mumbai and moved with his family to Mayani. Gayabai used to work as a labourer in Mayani. The harassment of Gayabai continued when the family moved to Mayani and the Appellant continued to suspect her character and to assault her under the influence of alcohol. Gayabai and the children were driven out of the house by the Appellant after which they proceeded to reside at Village Bhikwadi at the house of PW 1' s maternal uncle. One month prior to the incident, Gayabai rented a room where she and the children came to reside. On 13th June 2002, the Appellant took Gayabai to Mayani from where she returned in the evening. On the morning of 14th June 2002, the Appellant went to Waduj from where he returned at about 12 noon. PW 1 deposed that after the family had partaken lunch at noon time, at about 3 p.m. the Appellant assaulted Gayabai with fist blows on the eye and thereafter on the head with a block of wood (Karanja). Gayabai thereupon raised an alarm. PW 1 rushed to his grandmother. His maternal uncle, PW 2 Santram, was present. A 7 crowd of ten to fifteen persons gathered there. Seeing the crowd, the Appellant dropped the weapon of assault. Gayabai had fallen down and was unconscious. 6. PW 1 was cross­examined at length. PW 1 stated during the course of his cross­examination that when the family was residing in Mumbai, he had been enrolled by his father, the Appellant, in an English Medium School. After the family had moved back to Mayani, the deceased together with her children came to Bhikwadi to reside in the house of Santram, the maternal uncle of PW 1. PW 1 stated that when his father returned from Mumbai, he had brought a silver ornament for Gayabai; that his parents had proceeded to Mayani in order to pay some amount which was due to a shopkeeper. The Appellant had, according to PW 1, proceeded to Waduj to search for a room for the family. 7. During the course of the cross­examination, the testimony of PW 1 remained unshaken. PW 1 stated that the Appellant had 8 assaulted his mother on the head upon which PW 1 rushed to the house of his maternal uncle. According to PW 1, the Appellant was tied down after the incident of assault by persons who had gathered at the place. PW 1 stated that since the time that his mother was taken to the hospital, he was residing with PW 2, his maternal uncle and grandmother. 8. In evaluating the testimony of PW 1, the Court must have due regard to the fact that a child is capable of being tutored. The testimony of a child witness must be carefully scrutinized to determine whether the version of the witness is truly independent or whether the veracity of the witness is affected as a result of tutoring. In the present case, the evidence of PW 1 shows that he is a witness of truth. His presence at the time and place of the incident is but natural since the incident took place at the house where he resided with his siblings and mother. PW 1 made no attempt to conceal or disguise the truth. During the course of his deposition, he stated that his father had brought a silver ornament for his mother; that his parents 9 had proceeded to Mayani to pay some amount to a shopkeeper and that the Appellant had on the morning of the incident proceeded to Waduj in order to search for a room for the family from where he had returned at noon. The deposition of the witness shows that it was after that the Appellant had returned, that the incident took place. 9. Counsel appearing on behalf of the Appellant submitted that there are discrepancies in the evidence of PW 1, in regard to the presence of persons who had assembled after the incident and the presence of blood on the spot of the incident. Learned Counsel submitted that though PW 1 deposed to the presence of blood at the spot of the incident, PW 5 who was the Investigating Officer deposed that no bloodstains were found in the spot panchanama. We are unable to accept the contention that the evidence of PW 1 is shaken as a result of the discrepancies to which a reference has been made. The evidence of PW 4 Dr.Anil Patil, who conducted the post mortem was to the effect that though there was no bleeding injury as a result of the assault, there was an intra cerebral injury sustained during the 10 course of the assault. The post mortem notes show a contused lacerated wound over the right mastoid region and over the occipital region. Two fractures were noted on the base of the skull and on the temporal bone. The evidence of the child witness therefore finds corroboration in the medical evidence. There was no reason for PW 1 to depose falsely against the Appellant. Though he was a child witness, PW 1 had sufficient maturity and understanding to realise the consequence of his deposition. The evidence of the witness has remained unshaken. 10. Apart from the evidence of PW 1, the prosecution relied on the evidence of Santram (PW 2) who was the step brother of the deceased. PW 2 in the course of his deposition, adverted to the continued harassment to which Gayabai was subjected by the Appellant. PW 2 deposed that the Appellant used to suspect her character; assault her, and she had been driven out of the house together with the children after which she had come to Bhikwadi together with the children to reside with him. A meeting took place 11 thereafter with a view to resolve the issue, after which Gayabai had gone back to Mayani only to return after two days, after she was again assaulted by the Appellant. PW 2 deposed to the events which took place on the date of the incident. At about 3 p.m. PW 1 ran towards the house of PW 2 and informed the members of the family that the Appellant had assaulted Gayabai. PW 2 immediately rushed towards the room which was occupied by Gayabai and found that the Appellant was bearing down on her stomach and was assaulting her with a wooden block in his hand. After seeing PW 2, the Appellant threw the weapon of assault. On behalf of the Appellant, reliance was placed on the cross­examination of PW 2, in the course of which, it was stated that the Police had not asked him about the whereabouts of the Appellant at the hospital, nor had he informed the Police about his whereabouts since he was unaware of where the Appellant was. This, it was urged, would contradict the testimony of PW 1 that the Appellant had been tied down by persons who had gathered after the assault, at the site of the incident. The discrepancies on which reliance has been placed on behalf of the Appellant are minor and are 12 not of such a nature as would discredit the case of the prosecution or the veracity of PW 2. The presence of PW 2 at the scene of the incident, is again natural. Nothing substantial has been elicited during the course of the cross­examination that would lead to the rejection of the testimony of the witness. The evidence of PW 2 corroborates the evidence of PW 1. 11. The testimony of Dr.Anil Patil (PW 4), who conducted the post mortem showed that the following two injuries were found on the body of the deceased : “1) C.L.W. over right mastoid region 3x3 cms. fracture mastoid bone. 2) C.L.W. over occipital region, right side, sutured 3 cms. in length.” The post­mortem notes indicate that two fractures were sustained by the deceased on the base of the skull and on the temporal bone on the right side. The cause of death was shock due to the head injuries. The medical evidence indicates that injuries were sustained 13 by the deceased on a vital part of the body, namely, the head. The nature and extent of the assault can be evaluated by the circumstance that two fractures were sustained by the deceased on the skull and on the temporal bone. 12. In State of Rajasthan vs. Dhool Singh,1 the High Court had set aside a conviction by the Sessions Judge under Section 302 of the Penal Code and modified the conviction to one under Section 304 Part­II. The judgment of the High Court was based on the fact that the accused had dealt a single blow which would take the case outside the scope of Explanation I to Section 300. Finding that the reasoning of the High Court was unsustainable, the Supreme Court held as follows: “The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not.” 1 (2004) 12 SCC 546 14 The Supreme Court held that the accused had dealt a single blow with a sharp­edged weapon on a vital part of the body, namely the neck. The death had been almost instantaneous and the Court noted that any reasonable person with any stretch of imagination would come to the conclusion that such an injury on a vital part of the body with a sharp­edged weapon would cause death. 13. The judgment of the Division Bench of this Court in Najir Kadar Mujawar vs. State of Maharashtra,2 on which reliance was placed by the Appellant is distinguishable. In that case, the accused was the owner of adjoining agricultural land and the assault took place in the course of an incident on the spur of the moment. There was an altercation in the course of which one of the accused lifted a bamboo and administered blows as a consequence of which death occurred. The Division Bench held that the use of a bamboo in the background in which the incident had occurred, showed that there 2 2006 ALL MR (Cri) 348 15 was no intention on the part of the accused to cause death nor knowledge that the assault by a bamboo would result in death. Ordinarily, the Court noted, a bamboo with a two inch diameter could not be said to be a deadly weapon. The accused, the Court noted, had not come to the scene with a plan to launch an assault and he was unaware why a quarrel had taken place between the parties. It was in these circumstances, that the Division Bench held that the case would not fall under Section 302 or under Section 304 Part I and Part II. 14. In the present case, in contrast, there is evidence to establish a consistent pattern of harassment to which the Appellant had subjected Gayabai. She was and assaulted in the past. Gayabai was driven out of her home together with her three children. In this background, she came to be assaulted by the accused­ appellant on the date of the incident using Karanja wood. The blow was administered on a vital part of the body. The intensity of the blow was such that it resulted in two fractures on the head. The nature of 16 the assault, the force used and the nature of the weapon all go to establish that the Appellant intended to cause the death of Gayabai and had knowledge that death would be the result. 15. The prosecution has been able to establish beyond reasonable doubt that on 14th June 2002 the Appellant assaulted his wife Gayabai on a vital part of the body, namely, on the head, with a block of wood (Karanja). The evidence of the child witness PW 1, evaluated with a degree of circumspection that prudence would require, deserves to be accepted. The evidence of PW 1 is corroborated by the deposition of PW 2 and by the medical evidence on record. The prosecution has been able to establish that the Appellant assaulted the deceased on a vital part of the body and the force of the blows was such as to lead to two fractures on the skull and on the temporal one. Death resulted due to the shock sustained in the assault. The nature of the instrument used, the vital part of the body on which the assault was made and the nature of the force used for the purposes of the assault as would be evidenced from the 17 injuries sustained by the deceased establishes that the Appellant caused the death of Gayabai with an intention of causing her death. In these circumstances, the prosecution has established the guilt of the Appellant beyond reasonable doubt. There is no infirmity in the judgment of the Additional Sessions Judge. 16. The appeal shall, in these circumstances, stand dismissed. ( SMT.RANJANA DESAI, J.) ( DR.D. Y. CHANDRACHUD, J.)