Bombay High Court
At Present In Satara Jail vs At The Instance Of Satara Road on 5 December, 2012
Bench: V.M. Kanade, P. D. Kode
1
(Appeal 765 a/w. 695 of 2004)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 765 OF 2004
Machindra Govind Dhanawade )
Age 32 years, Occupation Labour )
work, Indian Inhabitant, residing )
at Begharwasti, Satara Road, )
Tal. Koregaon, Diat. Satara )
At present in Satara Jail )..Appellant
(Org. Accused No.1)
Versus
The State of Maharashtra )
At the instance of Satara Road, )
Police Station, Tal. Koregaon, )
Dist. Satara )..Respondent
****
Mr. Kuldeep Patil for Appellant
Mr. H.J. Dedhia - APP for the State
****
WITH
CRIMINAL APPEAL NO. 695 OF 2004
1. Ganagubai Govind Dhanawade)
Age 70 years, Occ. Household, )
1/8
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2
(Appeal 765 a/w. 695 of 2004)
Indian Inhabitant )
residing at Begharwasti, )
Satara Road, Tal. Koregaon, )
Dist. Satara )
2. Smt. Lilabai Baban Pawar )
Age 55 years, Occ. Household, )
Indian Inhabitant, )
Residing at Begharwasti, )
Satara Road, Tal. Koregaon, )
Dist. Satara )..Appellants
(Org. Accused Nos.2 & 3)
Versus
The State of Maharashtra )
At the instance of Satara Road, )
Police Station, Tal. Koregaon, )
Dist. Satara )..Respondent
****
Mr. Ajit Kenjale for Appellants
Mr. H.J. Dedhia - APP for the State
****
CORAM: V.M. KANADE &
P.D.KODE, JJ.
DATE: 5th December, 2012
(Appeal 765 a/w. 695 of 2004)
[ORAL JUDGMENT - PER V.M. KANADE J]
1. Heard the learned counsel appearing on behalf of the
Appellants and the learned APP for the State.
2. The Appellants have challenged the judgment and order
dated 20.4.2004 passed by the VII Additional Sessions Judge,
Satara, who was pleased to convict the Appellants for the
offence punishable under section 302 r/w. 34 of the Indian
Penal Code and sentence them to suffer life imprisonment and
to pay a fine of Rs.3,000/- each and, in default, to suffer
rigorous imprisonment for six months.
3. The prosecution case in brief is that the Appellant in
Criminal Appeal No. 765 of 2004 was the husband of the
deceased and Appellant Nos.1 and 2 in Criminal Appeal No.
695 of 2004 were the mother-in-law and sister-in-law of the
deceased (for the sake of convenience the parties shall be
referred to as "Accused Nos.1, 2 and 3"). According to the
prosecution, Accused No.1 got married with the deceased
about 8 to 9 years before the incident. On 8.9.2003, at about
7.00 p.m., the complainant received a phone call from his
brother-in-law that the deceased had sustained burn injuries.
He, therefore, rushed to Satara along with his parents and
reached the house of the deceased on the next day on
9.9.2003 at about 8.30 a.m. By that time his sister was
(Appeal 765 a/w. 695 of 2004)
declared as dead, having sustained burn injuries. A
complaint was registered against Accused Nos. 1 to 3. The
Trial Court, on the basis of the evidence adduced by the
prosecution, convicted the Appellants for the offence
punishable under section 302 of the Indian Penal Code.
4. The learned counsel appearing on behalf of the
Appellant/ husband - Original Accused No.1 submitted that
the PW-1 Complainant had not witnessed the said incident
and, therefore, his evidence was not of any assistance to the
prosecution for proving the case of murder against the
Appellant. He submitted that the other panch witnesses had
turned hostile. He further submitted that the Trial Court
relied on the evidence of a child witness viz. the son of
accused No.1, who was 5 years old when his evidence was
recorded and on the basis of his evidence, convicted the
Appellant. He has taken us through the judgment and order
of the Trial Court and also the evidence of the other witnesses
which was recorded by the Trial Court. He submitted that,
therefore, the child PW-2 was clearly tutored and this fact was
admitted by him in the cross examination. He submitted that,
therefore, it was not possible to rely on the evidence of the
child witness.
5. On the other hand, the learned APP for the State
supported the judgment and order passed by the Trial Court.
(Appeal 765 a/w. 695 of 2004)
He submitted that if the evidence given by the child witness
is found trustworthy, it is open for the Trial Court to convict
the accused on the basis of such evidence given by the child
witness.
6. After having heard both the learned counsel at length
and after going through the judgment and order passed by the
Trial Court and evidence on record, we are of the view that the
only evidence which is available on record, is the evidence of
the child witness who is alleged to be the eye witness of the
said incident. It is settled position in law that if a child
witness is to be examined before the Court, it is the duty of
the Court to first examine whether the child is able to
understand the sanctity of oath and whether an oath should
be administered to him. Secondly, the Court has to ask
certain questions to the child witness in order to arrive at the
said conclusion. The Court, therefore, is expected to assess
the capability of the child witness objectively and not merely
on the basis of its subjective satisfaction. It is, therefore, the
requirement in law that the Court should ask the questions
to the child witness and these questions have to be recorded
in question and answer form. This procedure admittedly has
not been followed by the Learned Sessions Court.
7. Keeping in view the said settled position in law, it has
to be seen whether it can be said that the testimony of child
(Appeal 765 a/w. 695 of 2004)
witness in this case is reliable and trustworthy. Firstly, no
questions have been asked by the Court to ascertain whether
he understands the gravity of the statement which he is
making in the Court and the consequence which would follow
if his evidence is accepted by the Court. Secondly, the oath
has not been administered to the child witness. In this case,
the child witness was five years old when his testimony was
recorded and when the said incident had occurred, he was
four years old. We would like to reproduce his evidence in
examination-in-chief because it is short and cryptic. He has
merely stated in his examination-in-chief as follows :
"Kamal was my mother. She is no more. I
address my father as "Nana". The accused No.1
poured kerosene on my mother and set her on
fire. At that time accused No.1 had drunks
liquor. That time I was residing at Satara road.
At the time of the incident, the accused nos.1 to
3 were there. The accused nos.2 and 3 poured
kerosene over my mother".
8. In his evidence, therefore, the child witness does not
state the date on which the said incident took place, nor the
time, nor the circumstances under which the said incident
had happened. He had also not given the sequence of events.
He merely gives the one line statement that the father poured
(Appeal 765 a/w. 695 of 2004)
kerosene and also the two accused poured kerosene on his
mother and set her on fire. In the cross examination, he
admitted that his uncle used to tell him everyday this fact and
also told him to mention the fact in the Court and to tell the
Court that the accused No.1 had set the deceased on fire.
From his cross examination and the cryptic evidence which is
given by him in the examination-in-chief, it is apparent that
this witness has been tutored by the Complainant and,
therefore, it is not possible to rely
highly risky to rely on his testimony,
on his testimony. It is
and the Trial Court
ought not to have convicted the accused for the commission of
the said offence on the testimony of this child witness.
9. Apart from the evidence of this child witness, there is no
material on record which shows the involvement of the present
Appellants in the said offence. Under, these circumstances,
we are of the view that the benefit of doubt will have to be
given to the Appellants. Hence, the following order is passed:
ORDER:
1. Both the appeals, therefore, are allowed and disposed
of.
2. The Judgment and Order passed by the Trial Court is
quashed and set aside. The Appellants are acquitted of
the offence punishable under section 302 r/w. 34 of the
Indian Penal Code.
(Appeal 765 a/w. 695 of 2004)
3. The Appellants in Appeal No. 695 of 2004 are on bail and
their bail bonds shall stand cancelled.
4. The Appellants be released forthwith unless their
presence is required in any other case.
5. Fine amount, if any paid, be refunded to the
Appellants.
Criminal Appeals are disposed of.
(P.D. KODE J.) (V.M. KANADE J.)
V.A. Tikam
