1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.151 OF 2008 Gajanan s/o Rambhau Kale, Age 26 years, Occu.Business, R/o Wakodi, Taluka Kalamnuri, District Hingoli .. APPELLANT (Original Accused) VERSUS The State of Maharashtra .. RESPONDENT Shri A.B.Madke, Advocate holding for Shri S.M.Wakude, Advocate for appellant Shri S.D.Kaldate, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 28th JANUARY 2010 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 498-A of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/- with a default condition of undergoing further simple imprisonment for one month and rigorous imprisonment for two years and to pay fine of Rs.1,000/- with a default condition of undergoing further simple imprisonment for 15 days, by the Additional Sessions Judge, Hingoli, by judgment dated 1.11.2007, in Sessions Case No. 2 43/2006, 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.11 A.S.I. Bhumiraj Umbrekar, who was attached to Police Station, Kalamnuri, recorded the complaint of P.W.5 Gajanan Kanade at Exh.41. After recording the said complaint, the F.I.R. was handed over to P.S.I. Hivale for investigation. It appears that on the basis of the report at Exh.41, an offence under Section 498-A, 302 and 506 of the Indian Penal Code came to be registered vide Crime No.39/2006. P.W.14 P.S.I. Waman Hivale, who was attached to Kalamnuri Police Station as a P.S.I. was handed over the papers of registration of the offence and accordingly, on 11.4.2006 he proceeded to the scene of the incident. He drew the inquest panchnama of deceased Anita at Exh.8. Thereafter he drew the scene of the offence panchnama at Exh.34 in the presence of P.W.1 Dnyaneshwar. P.W.2 Namdeo Rathod, a Police Head Constable attached to Kalamnuri Police Station arrested the accused and had noticed his blood stained clothes. The clothes of the accused, therefore, came to be seized vide Exh.30. Blood sample of the accused came to be drawn vide memo at Exh.32. Dead body of deceased Anita was referred for 3 post mortem examination and post mortem was conducted by P.W.7 Dr.Waghmare. P.W.7 Dr.Waghmare noticed a crushed injury with compound fracture to the skull involving right maxilla, right forehead and frontal and parietal region. He also noticed that eight teeth were dislodged and right eye was lost. He also noticed lacerated injury to the brain. He, therefore, opined that cause of death was injury to vital organ, i.e. brain with compound fracture of the skull. The post mortem report is at Exh.47. Further to the completion of investigation i.e. after recording of the statements of the witnesses, 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.22 framed charge against the appellant for offence punishable under Section 302 and 498-A of the Indian Penal Code. Prosecution in support of its case examined 14 witnesses and relied particularly upon the evidence of P.W.10 Ujjwala, daughter of the appellant as an eye witness to the incident. The trial Court also accepted the evidence of P.W.4 Kantrao, P.W.5 Gajanan, P.W. 8 Suman and P.W.9 Sajana in respect of the charge under Section 498-A of the Indian Penal Code. The trial Court, therefore, ultimately convicted the appellant for offences punishable under Section 498-A and 302 of the Indian Penal Code. 4 4. Before we refer to the submissions advanced before us by learned Counsel for the appellant and the learned Assistant Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. Prosecution has examined P.W.10 Ujjwala, a child witness who states that she had witnessed the actual incident of the accused killing her mother. The trial Court upon preliminary examination of P.W.10 Ujjwala found that the witness did not understand the sanctity of oath and, therefore, oath was not administered to the witness. The witness was unable to state her age and the trial Court approximately assessed her age as six years. When the witness was asked as to when her mother had died, the witness had replied “tomorrow”. On further questioning P.W.10 Ujjwala stated that her father had killed her mother by a stone. The witness further stated that her mother was killed at village Wakodi. She has also stated that her mother was killed in her own house. Witness has also admitted that she was present in the house when the incident had occurred. The witness was asked whether it was day or night and the witness had replied “night”. Undisputedly, we may point out that the incident had occurred during day time i.e. at about 12.30 in the afternoon. During cross-examination, P.W.10 Ujjwala has admitted that she was tutored by her grandmother and maternal uncle to depose in the Court that her father had killed her mother. Similarly, she has admitted that she was tutored by her grandmother and maternal 5 uncle to depose in the Court that her mother was killed by the accused by a stone and she was asked to show the size of the stone approximately. She has also admitted that her uncle and grandmother had tutored her to say “yes” as the same stone by which the accused had killed her mother in the event the stone was shown to her in the Court. 5. Learned Counsel for the appellant has urged before us that P.W.10 Ujjwala has admitted in the cross-examination that she was tutored to depose in a particular manner before the Court. Ujjwala has admitted to have been tutored in respect of stating before the Court that it was the appellant who had killed her mother by a stone. Learned Counsel for the appellant has placed reliance on the Division Bench judgment of this Court in Laxmibai w/o Maruti Satpute & Ors. Vs. State of Maharashtra, reported at 2010 ALL MR (Cri) 182. The Division Bench of this Court to which one of us (P.V.Hardas, J.) was a member held that in the absence of any corroboration to the testimony of a child witness, it was unsafe to base conviction solely on the testimony of the child witness as the child witness was susceptible to be tutored. Learned Counsel for the appellant has further invited our attention to the judgment of Supreme Court in Bhagwan Singh and others Vs. State of Madhya Pradesh, AIR 2003 SUPREME COURT 1088. The Supreme 6 Court in the aforesaid judgment at paragraph 19 has held that the law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. 6. Learned Counsel for the appellant further placed reliance on the judgment of Supreme Court in Panchi and others Vs. State of U.P. AIR 1988 SUPREME COURT 2726, particularly to the observations of the Supreme Court in respect of law relating to appreciation of evidence of child witnesses. The Supreme Court held that it is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. 7 7. Evidence of P.W.10 Ujjwala clearly discloses that Ujjwala was unable to state if the incident had occurred during day time or at night. In fact, an erroneous answer was given by her that the incident had occurred at night. The evidence of the prosecution is to the effect that the accused is alleged to have killed his wife at about 12.30 in the afternoon. However, P.W.10 Ujjwala has admitted that she was tutored by her grandmother and her maternal uncle to depose in the Court that it was the appellant who had murdered his wife by a stone. In that light of the matter, therefore, according to us no reliance whatsoever can be placed on the testimony of P.W.10 Ujjwala unless the evidence of P.W.10 Ujjwala is corroborated by independent source. 8. The learned Assistant Public Prosecutor states that the evidence of P.W.10 Ujjwala stands corroborated by the evidence of P.W.2 Namdeo Rathod. Evidence of P.W.2 Namdeo Rathod is to the effect that the accused had confessed to him that he had killed his wife. Evidence of P.W.2 Namdeo Rathod further indicates that he arrested the accused and had noticed blood stains on his clothes. The report of the Chemical Analyzer shows that the clothes of the accused were stained with the blood group which matched the blood group of deceased Anita. The learned Assistant Public Prosecutor, therefore, urges before us that evidence of P.W.10 Ujjwala stands amply corroborated by the 8 evidence of P.W.2 Namdeo Rathod. 9. It is unfortunate that the trial Court has taken on record the alleged confession made by the accused to P.W.2 Namdeo Rathod who is a Police Head Constable. The confession of the accused is wholly inadmissible in evidence and could not have gone on record. If that confession alleged to have been made by the accused to P.W.2 Namdeo is left out of consideration, the only circumstance on which the prosecution can rely upon is the finding of blood stains on the clothes of the accused which matched the blood group of deceased Anita. Deceased Anita was the wife of the appellant-accused. She had died in the house of the appellant-accused. The appellant-accused in his statement under Section 313, Cr.P.C. claims that he had gone to the agricultural field and was informed about murder of his wife. In such circumstances, therefore, mere failure of the accused to offer explanation or to account for the blood stains on his clothes would not be a circumstance which would unerringly point to the guilt of the accused. In cases resting on circumstantial evidence, it is a settled law that the prosecution has to prove each and every circumstance on which it relies. The circumstances so proved should be of a conclusive nature. The circumstances so proved should form a complete chain which should exclude every hypothesis of innocence of the accused and should unerringly 9 point to the guilt of the accused. In other words, the circumstances so proved by the prosecution should be capable of only one inference that the accused and the accused alone has committed the crime. In the present case only on the basis of finding of the blood stains matching the blood group on the clothes of the accused, inference cannot be drawn that it was the accused and accused only who had committed the said offence. In that light of the matter, therefore, according to us the appellant is entitled to be given the benefit of doubt and is entitled to be acquitted of the offence punishable under Section 302 of the Indian Penal Code. 10. Turning to the evidence in respect of the charge under Section 498-A of the Indian Penal Code, prosecution has examined P.W.4 Kantrao, uncle of deceased Anita. P.W.4 Kantrao states that deceased Anita was married to the accused and was residing at Wakodi. During the Deewali festival he had gone to the house of his sister i.e. P.W.8 Suman, mother of deceased Anita and Anita who was accompanied by her husband (appellant) told P.W.4 Kantrao that the accused was demanding Rs.25,000/- for business. Anita further disclosed to him that her husband was doubting her fidelity and did not allow her to talk with the neighbours. Thereafter Anita returned back to her house. Evidence of this witness clearly indicates that Anita had informed 10 him that the accused was demanding Rs.25,000/- for business and was suspecting the character of Anita and was not allowing her to talk to the neighbours. Evidence of this witness does not indicate that Anita had disclosed to him about any ill-treatment either physical or mental within the meaning of Section 498-A of the Indian Penal Code. 11. Prosecution has examined P.W.5 Gajanan, brother of deceased Anita. Gajanan states that the accused started harassing Anita after five years of marriage and was asking Anita to bring money from her parents and he also states that the accused was suspecting the fidelity of Anita. He also states that Anita had informed him that her husband was harassing her and was not permitting Anita to go to the house of her parents for celebrating various festivals. Bare reading of the evidence of this witness discloses that he does not state that an amount of Rs. 25,000/- was demanded by the accused. Beyond that what he recites that accused was demanding the amount. Curiously, this witness does not state that Anita informed him that she was ill- treated or that ill-treatment was in order to fulfill the unlawful demand of Rs.25,000/-. Thus, the evidence of this witness falls short of establishing the offence punishable under Section 498-A of the Indian Penal Code. 11 12. Prosecution has examined P.W.8 Sumanbai, mother of deceased Anita and Sumanbai states that Anita had told her that the accused was ill-treating her and demanding Rs.25,000/-. She further states that accused was threatening Anita to kill her if the amount was not brought. She further deposes that Anita had told her that the accused had stated that he would allow Anita to visit her parents only in the event the amount is brought. She further states that because of poverty she was unable to pay the amount. In respect of the alleged threats by the accused to kill Anita in the event the aforesaid demand was not made, is not deposed to by P.W.4 Kantrao or P.W.5 Gajanan though all the witnesses claimed that at one and the same time Anita had disclosed to them about the ill-treatment. Anita is alleged to have visited her parents house about six months prior to her death. That was the last occasion and thereafter she had not visited the house of her parents. If that be so, we find that there is no consistency whatsoever in respect of the alleged threats to kill Anita in the event the amount was not brought. We, therefore, find that no reliance at all can be placed on the testimony of P.W.8 Sumanbai. 13. Prosecution has examined P.W.9 Sanjana, sister of deceased Anita. She states that Anita had visited her mother’s house during the Deewali festival and had informed her that the appellant-accused was harassing her and was demanding the 12 amount. She states that Anita had told her that the accused was assaulting her on account of the demand. In cross-examination, she has admitted that Anita had not stated about her ill-treatment on any earlier occasion but it was told only at the time when Anita had come to attend Deewali festival. Similarly, omission has been elicited in the cross-examination in respect of certain instances of ill-treatment. 14. As pointed out by us above, there is no thread of consistency in respect of the testimony of the four witnesses in respect of what Anita had disclosed to them about the ill- treatment. Apart from variance on major aspect of the ill- treatment, the evidence of these witnesses is vague and omnibus. Appellant and deceased Anita are alleged to have been married about eight years prior to the incident. There has been no complaint of ill-treatment on any earlier occasion except about six months prior to death of Anita. We, therefore, find that no reliance whatsoever could have been placed on such vague and omnibus testimony and testimony which is insufficient for establishing the offence punishable under Section 498-A of the Indian Penal Code 15. After giving our anxious consideration to the submissions advanced before us by the learned Counsel for the parties, 13 according to us the prosecution has miserably failed in establishing the offence against the appellant beyond reasonable doubt and the appellant is, therefore, entitled to be given the benefit of doubt. 16. Accordingly, this Criminal Appeal is allowed and conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant be refunded to him. Since the appellant is in jail, he be released forthwith if not wanted in any other case. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal151.08)