1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 160 OF 2005 Balasaheb Digambar Mane ] Convict No. C/13683 ] presently lodged at Yerawada ]..Appellant Central Prison, Pune ](Original Accused) versus The State of Maharashtra ] (at the instance of Solapur Taluka ] Police Station, C.R. No. 30/03 ]..Respondents Mr. Abhaykumar Apte – Advocate Appointed for Appellant / Original Accused. Mr. H. J. Dedhia - Additional Public Prosecutor for Respondents – State. CORAM : D. D. SINHA AND A. P. BHANGALE, JJ. Date of Reserving the Judgment : 29.09.2010 Date of Pronouncing the Judgment : 04.10.2010 JUDGMENT : (Per : D. D. Sinha, J.) 1. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondents – State. 2. The Criminal Appeal is directed against the Judgment and Order dated 6th November 2003 passed by the Additional Sessions Judge, Solapur, 2 whereby the appellant came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months. The appellant was also convicted for the offence punishable under Section 498-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/- in default to undergo rigorous imprisonment for two months. Sentences were directed to run concurrently. 3. The case of the prosecution in nutshell is as under :- The deceased Kavera was the wife of the appellant and out of the wedlock two children were born, viz., Somnath (P.W. 6) and Didi. The appellant was residing with his wife and children at Village Kavthali. It is the case of the prosecution that the appellant used to suspect character of his wife deceased Kavera and therefore there used to be frequent quarrels between them. A month prior to the incident the deceased had telephoned her father Dhondiba (P.W. 5) and informed him about the ill-treatment meted out to her by the appellant. She also requested her father to come to her village and settle the problem. It is the case of the prosecution that the father of the deceased P.W. 5, mother of the deceased and brother of the deceased went to the village of the appellant. They resolved the dispute between the appellant and his wife. However, while they were returning to 3 their village appellant told them that deceased Kavera was acting smart and therefore he would kill her and inform them. 4. It is the case of the prosecution that on the day of the incident, in the evening a quarrel had taken place between the appellant and his wife deceased Kavera on account of some money transaction. Deceased Kavera went to sleep. Appellant got up from the sleep, tightened the rope around the neck of the deceased, appellant picked up the deceased, took her to the cattle shed which was about 6 ft. away from the house of the appellant and left her dead body at that place. 5. Father of the deceased came to know that the appellant murdered his daughter. The father of the deceased went to the house of the appellant, noticed dead body of his daughter deceased Kavera lying near cow shed. On 3rd March 2003 Dhondiba (father of the deceased) lodged the complaint in the police station. Inquest panchnama, spot panchnama were drawn. Statement of witnesses were recorded. Clothes of the appellant and the deceased were seized and after completion of investigation charge sheet came to be filed against the appellant. Charge was framed and explained to the appellant to which he pleaded not guilty and claim to be tried. 6. The learned counsel for the appellant has contended that the entire 4 prosecution case primarily based on the evidence of child witness Somnath (P.W. 6) who is the son of the appellant. It is contended that at the time of recording of evidence of this witness he was about 8 years old. It is contended that when the prosecution case is based on the testimony of child witness the evidence of said witness needs to be considered by the Court with due care and caution since possibility of tutoring in case of child witness is always prevalent. It is contended that in the instant case Somnath after the incident, is residing with his grand father i.e. complainant and therefore possibility of complainant P.W. 5 tutoring the child to give evidence against the appellant cannot be ruled out. The counsel for the appellant has submitted that the evidence of Somnath P.W. 6 does not inspire confidence and if considered in the light of the medical evidence, then, it creates doubt about the authenticity of the said evidence. The counsel for the appellant wanted to make a capital out of the admission given by Somnath in his cross-examination to the effect that he came to the village Kavthali along with his grand father on the day of the incident. It is submitted that the said admission by Somnath in his cross-examination creates serious doubt about his presence in the house at the time of incident. 7. Counsel for the appellant further contended that the medical evidence of Dr. Ashok (P.W. 8) does not corroborate the case of the prosecution. It is submitted that prosecution claims that the appellant strangulated the 5 deceased by means of rope which was seized from the spot i.e. Article ‘1’. However, the medical officer in his evidence has stated that the injury on the neck was not possible with Article ‘1’ which is the piece of the rope seized by the prosecution during investigation. It is contended that the admission given by Dr. Ashok in his evidence is consistent with the defence of the appellant which shows that the deceased committed suicide by hanging herself with the help of the different rope. 8. Counsel for the appellant further contended that the evidence of Dhondiba, father of the deceased is also inadequate to bring home the guilt of the appellant for the offence punishable under Section 498-A of the Indian Penal Code. It is therefore contended that the conviction awarded by the trial court therefore is unfounded, illegal and unsustainable in law. 9. The learned Additional Public Prosecutor has supported the decision of the trial court and contended that the evidence of Somnath (P.W. 6), Dhondiba (P.W. 5) coupled with the medical evidence of Dr. Ashok (P.W. 8) prove the case of murder and ill-treatment against the appellant beyond all reasonable doubts. It is submitted that the evidence of Somnath is free from contradictions and omissions and therefore trustworthy and reliable. Same is also corroborated by the medical evidence. Dr. Ashok has opined that the probable cause of death of deceased Kavera was asphyxia due to 6 compression on the neck. It is contended that so far as ill-treatment is concerned, the evidence of Somnath (P.W. 6) as well as Dhondiba (P.W. 5) is adequate enough to bring home the guilt of the appellant for the offence punishable under Section 498-A of the Indian Penal Code. The Additional Public Prosecutor therefore contended that the judgment and order of conviction passed by the trial court is sustainable in law. 10. Considered the contentions canvassed by the learned counsel for the appellant as well as the learned Additional Public Prosecutor for the State and carefully scrutinized the evidence of the prosecution. 11. At the outset, we want to express that it is well settled that merely because the eye witness is a child and related to the victim, his testimony cannot be either ignored or discarded if it is cogent and is corroborated by the other evidence. It is no doubt true that the Court has a duty to ascertain the extent of intelligence of the child witness, his capacity and understanding and whether he is able to give rational answers regarding what he had seen on a particular occasion. However, evidence of child witness recorded by the Court without putting preliminary questions to satisfy as to his competence cannot render his testimony unreliable or inadmissible in all cases. It is though expected from the Court to hold the preliminary examination of the child witness. However failure to do so does 7 not introduce a fatal infirmity in the evidence of such child witness if, it is otherwise cogent and trustworthy. The evidence of child witness recorded without putting a few preliminary questions to satisfy as to his competency cannot, as a matter of law renders the said evidence unreliable or inadmissible. It is the discretion of the Court to form its own opinion whether the child witness has sufficient understanding to be qualified to be a witness, however, in order to find out this aspect it is not always obligatory that the preliminary investigation should be made. Though it is always better to do that. In the instant case the trial Court did not administer oath to Somnath P.W. 6 since the trial Court thought that the child witness did not understand the importance of oath. Administering or not administering oath to a child witness does not affect the admissibility of his evidence nor competency of a child witness. Though, the rule of prudence requires that same should be corroborated by the other evidence. 12. In the light of the above referred legal position, we need to consider the evidence of Somnath (P.W. 6) the child witness. Somnath is the son of the appellant and at the relevant time was 7/8 years old. He was residing with the appellant and the deceased along with his sister at the time of the incident. In the examination-in-chief of this witness he has stated that on the day of the incident quarrel had taken place between the appellant and his mother deceased Kavera on account of some monetary issue. It is the case 8 of the prosecution that after hearing some noise this witness woke up and saw the appellant was encircling the rope around the neck of his mother deceased Kavera. Appellant thereafter picked up the deceased, took her near the cattle shed and left her dead body at that place. This witness has stated that he has seen the incident in the light of chimney. While going through the cross-examination of this witness, we have noticed that the defence has not seriously disputed the presence of this witness at the time of the incident in the house. There are no contradictions and omissions brought on record by the defence in the testimony of this witness. Somnath has denied the suggestion that quarrel did take place between the appellant and deceased, appellant did not kill his mother, that he was told by his grand father to depose against the appellant. The evidence of Somnath which is free from contradictions and omissions, in our view, inspires confidence. The presence of this witness at the time of incident in the house of the appellant is most natural since he is the son of the appellant and was residing in the same house along with the appellant at the time of the incident. It is pertinent to note that the material particulars of the prosecution case disclosed by this child witness are completely corroborated by the medical evidence of Dr. Ashok (P.W. 8). The medical officer who had conducted post-mortem examination on the body of deceased Kavera found following surface wounds and injuries: 9 “ 1. Ligature mark seen on the neck above thyroid going upwards on side encircling the neck upto nape of the neck, on right side up to madibular angle, 9” length, 1/4” breadth, incomplete, dark brown, faint mark on right side with two dark brown marks 1/” x 1/3” below right ear. 2. Small abrasion on anterior aspect of right knee 1/4” x 1/4” and on left knee 1/2” x 1/2” brown. On dissection of the neck, under ligature mark white partchment like eccuhymosis and peteohaxe in adjacent tissue. All the injuries were ante mortem in nature.” The medical officer has opined that the probable cause of death was asphyxia due to compression on the neck. The doctor has also opined that the injury on neck was sufficient in ordinary course of nature to cause death. The defence tried to contradict the testimony of child witness on the ground of opinion expressed by Dr. Ashok that the injury on neck was not possible by Article ‘1’ and cause of death was compression on the neck. It is pertinent to note that P.W. 6 Somnath had seen the incident in the light of the chimney. It has come in his evidence that the appellant tied the rope around the neck of his mother deceased Kavera, took her near the cow shed which was just about 6 feet away from the house and left her dead body there. All these material particulars are corroborated by the medical 10 evidence as well as other circumstances such as spot panchnama, inquest panchnama etc. While appreciating the evidence of Somnath, it is necessary to keep in mind that he has specifically stated in his testimony that at the relevant time his father tried to kill his mother with the help of rope which was tied by him around the neck of his mother, even as per the opinion of the doctor the probable cause of death is due to injury sustained by the deceased on neck. It is too much to expect from the child witness to depose in details, to what extent the appellant tightened the rope around the neck of the deceased, or whether the appellant in addition to the tightening of rope put pressure on the neck of the deceased by his hands etc. The evidence of the child witness which is cogent and trustworthy clearly shows that it was the appellant who at the relevant time tried to cause injury on the neck of the deceased with the help of the rope and as per the medical evidence the probable cause of death was due to injury suffered by the deceased on neck, which was sufficient in ordinary course of nature to cause death. In the instant case the evidence of P.W. 6 has been corroborated by the medical evidence. It is also not in dispute that the dead body of the deceased was found near the cattle shed which was about 6 feet away from the house of the appellant. Similarly, the evidence of P.W. 5 Dhondiba demonstrates that the appellant ill-treated his wife deceased Kavera since he was suspecting her character. The evidence of Dhondiba further disclosed that the appellant used to beat deceased and this fact was communicated to Dhondiba by 11 deceased on telephone about one month prior to the incident. Similarly Dhondiba in his examination-in-chief has stated that deceased called him to settle the dispute between the appellant and her. Appellant, his brother and his wife went to the house of the appellant and tried to persuade the appellant not to ill-treat deceased. It is pertinent to note that Dhondiba came to know that his daughter was dead from the villagers of Kavthali when he had gone to attend the funeral of uncle of the appellant. The evidence of Dhondiba shows that when he went to the house of the appellant, Somnath was present and disclosed to him that the appellant has strangulated his mother with the help of the rope in the house and carried her body to the cattle shed which is about 6 feet away from the house. 13. In the instant case the conduct of Somnath disclosing the incident to Dhondiba when he met the child for the first time assumes importance. As per the sequence of events, after the incident in question had taken place there is nothing on record to show that Somnath (P.W. 6) met any of the relatives of the deceased before he met Dhondiba (P.W. 5) father of the deceased. In absence of any evidence in this regard, question of tutoring Somnath to falsely implicate his own father in the instant case has been completely ruled out. Dhondiba for the first time met Somnath and at that time only Somnath disclosed the incident to his grand father. 12 14. It is in these circumstances, we are of the view that the evidence of Somnath P.W. 6 is cogent, consistent with the material particulars of the prosecution case, free from contradictions and omissions which is also corroborated by the medical evidence and therefore same can be safely relied on for awarding the conviction for the offences charged. Similarly, the evidence of Dhondiba P.W. 5 clearly shows that deceased Kavera was ill- treated by the appellant some time after their marriage which went on till the end. In our view, the prosecution succeeded in bringing home the guilt of the appellant for the offences charged. 15. For the reasons stated herein above, criminal appeal is dismissed. (D. D. SINHA, J.) (A. P. BHANGALE, J.)