spb/- 1 Apeal-109-04J.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 109 OF 2004 (Through Jail) 1. Mahammad Said Mahammad Habib & ... Appellants. 2. Shakil Liyakat Hussain Sha (Org.Accused Nos.1 & 2) In Kolhapur Central Prison, Kalamba, Dist. Kolhapur. V/s. The State of Maharashtra ... Respondent. ----- Mr. Ashish Sawant, Advocate, appointed for the Appellant No.1. Ms. Racheeta R. Dhuru for the Appellant No.2. Mrs. S.V.Gajare, APP for the Respondent-State. ----- CORAM : P. V. HARDAS & M.N.GILANI,JJ. DATE : 24TH MARCH, 2011 ORAJ JUDGMENT : (Per Hardas,J.) 1 The appellants, who have been convicted for an offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.3000/- each and in default to undergo further simple imprisonment for six months by the III Adhoc Additional Sessions Judge, Thane by a judgment and order dated 27th February, 2003 in Sessions Case No. 395 of 2002, by this Appeal question the correctness of their conviction and sentence. spb/- 2 Apeal-109-04J.sxw 2 Such of the facts which are necessary for the decision of this Appeal may briefly be stated thus : PW-6 -Mohan Dagadu Jadhav, API, who was attached to the Bhoiwada Police Station, Bhiwandi received the investigation of Crime No.I-58/02. He accordingly, recorded a complaint of PW-3 -Niyaj at Exh. 12. On the basis of the complaint Crime No.I-58/2002 came to be registered. The police thereafter proceeded to the scene of offence where they found dead body of deceased Majidabano. Accordingly an inquest panchanama in the presence of the witness came to be drawn at Exh. 14. The dead body of the deceased Majidabano was reported for postmortem examination. It appears that certain complaints came to be lodged by PW-3. During investigation, the complainant informed that the appellants committed murder of deceased Majidabano and accordingly, an offence punishable under section 302 read with 34 of the IPC came to be registered against the appellants. Scene of the office panchanama came to be drawn at Exh. 16 in the presence of PW-4 Neeta and other panch witness. Accordingly, the appellants- accused came to be arrested. On completion of the investigation, a chargesheet against the appellants came to be filed. 3 On committal of the case to the court of Sessions, the trail court spb/- 3 Apeal-109-04J.sxw had at Exh. 4 framed charge against the appellants for the offence punishable under section 302 read with section 34 of the Indian Penal Code. The appellants -accused denied their guilt and claimed to be tried. The prosecution in support of its case examined 6 witnesses. The entire prosecution case revolves around the testimony of PW-1 Mohammad Sagir to whom the prosecution claimed to be an eye witness. 4 Before adverting to the submissions advanced before us by the learned counsel for the parties, it will be useful to refer to the evidence of the prosecution witnesses. PW-1 Sagir, son of appellant no.1 and deceased Majidabano, who was minor at the time of incident, states that his father appellant no.1 used to assault him and his mother. Sagir further states that the appellant used to suspect chastity of the deceased Majidabano and used to assault her on that count. Eye witness- Sagir states that on the date of incident his mother had proceeded towards well and his mother was followed by appellant-accused no.2 Shakil and thereafter by the appellant- accused no.1. PW- 1 states that he also followed all of them towards the well and he noticed that the accused nos. 1 and 2 had thrown the deceased Majidabano in the well. He then states that the accused no.2 fled away from the scene of the incident and his father came to be apprehended. He also referred to the earlier spb/- 4 Apeal-109-04J.sxw incident when his father-accused no.1 is alleged to have informed the accused no.2 that they would do away with deceased Majidabano. In cross-examination omissions of vital aspects of the evidence of this witness have been elicited. Omissions have been proved that he had not stated in his previous statement that his father used to assault them including his mother and that he was not doing any work. Omission has been duly proved that he had not stated in his previous statement that on the date of the incident his mother has proceeded towards the well and thereafter, both the appellants-accused followed her and he also went towards the well. Omission has been duly proved that he had not stated in his previous statement that because of a push his mother fell in the well and that he had seen the accused while pushing deceased Majidabano in the well. Undisputedly the statement of this witness came to be recorded 23 days after the incident. 5 Prosecution has examined PW-2 Mohammad Idris in respect of illicit relations between the deceased Majidabano and her first husband. This witness did not not support the prosecution. No support can be derived by the prosecution. PW-3 Niyaz, who is a relative of the accused, states that on the date of incident while he was working in the factory, PW-1 Sagir had informed him at about 10.00 a.m. that his mother had spb/- 5 Apeal-109-04J.sxw fallen in the well. He states that thereafter, he had reached the scene of incident and after the arrival of the police, the dead body of the deceased Majidabano was removed from the well. He states about lodging of a complaint at Exh. 12. In cross-examination, he has stated that he had learnt subsequently that the accused had committed murder of deceased Majidabano. Though the offence under section 302, read with section 34 of the IPC came to be registered on the basis of the statement /complaint of this witness, yet this witness makes no reference to any such complaint. Be that as it may, the prosecution has examined PW-5, the Medical Officer who has performed the postmortem examination. From the opinion of PW-5 Dr. Dhawate, the deceased Majidabano had died on account of cardiorespiratory failure due to asphyxia due to drowning. In the cross-examination, he has admitted that he did not find any injury on the person of the victim. As pointed out by us above, apart from the evidence of PW-1, the prosecution has not led any evidence in support of its case that the accused had committed murder of the deceased Majidabano. The entire evidence of the prosecution hinges on the testimony of PW-1 Sagir, who is a child witness. Coupled with that the statement of this child witness came to be recorded after 23 days of the incident. Children are notorious for being tutored and therefore, the courts have to carefully scrutinize their evidence before placing implicit spb/- 6 Apeal-109-04J.sxw reliance on the testimony of a child witness. In the present case, what we find is that PW-1 not only was a child witness but his statement came to be recorded after 23 days of the incident. Obviously there was every opportunity for this witness to be tutored. In such circumstances, therefore, according to us in the light of the Judgment of the Supreme Court in AIR 1969 SCC page 53 and 1998 AIR SCC 2777, it would be hazardous to place implicit reliance on the testimony of the PW-1 who is a child witness without any corroboration. As pointed out by us, there is no corroboration worth the name forthcoming from the evidence of the prosecution. 6 In that light of the matter therefore, according to us the Appellants are entitled to benefit of doubt and accordingly we allow this Appeal and quash and set aside the conviction and sentence of the Appellants and acquit them of the offence with which they were charged and convicted. 7 Fine, if any, paid by the appellants be refunded to them. 8 Since the appellants are in Jail they be released forthwith, if not wanted in any other case. [M.N.GILANI,J.] [P.V. HARDAS, J.]