Criminal Appeal No.360 Of 2 vs :
2013 Latest Caselaw 376 Bom

      apeal360.10                              1




                                                                                
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                        
                         NAGPUR BENCH, NAGPUR

                          CRIMINAL APPEAL NO.360 OF 2010.




                                                       
     APPELLANT:                 Punjab s/o Narayan Kakde,
                                aged about 28 years, Occu: Nil,
                                R/o Chikhali, Tq.Chikhali, Distt.




                                            
                                Buldana.
                        
                                           : VERSUS :

     RESPONDENT:             The State of Maharashtra,
                             through Police Station Officer,
                       
                             Police Station, Chikhali, Tq.
                             Chikhali, Distt.Buldana.

     -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
      

     Mr.S.V.Sirpurkar, Advocate (appointed) for the appellant.
     Mr.T.A.Mirza, Additional Public Prosecutor for the State.
   



     =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                       CORAM:      A.B.CHAUDHARI AND 
                                                                          Z. A. HAQ, JJ.
                                                        DATED:     18th DECEMBER, 2013.





     JUDGMENT (Per Z.A.Haq,J.) 

1. Heard Shri S.V.Sirpurkar, learned Advocate for the

appellant/accused and Shri T.A.Mirza, learned Additional Public

Prosecutor for the respondent/State.

2. The appeal arises out of the judgment passed by the

learned Additional Sessions Judge, Buldana in Sessions Case No.36

th on 2008 on 27 of January, 2010, convicting the appellant/accused for

the offence punishable under Section 302 of the Indian Penal Code

and sentencing him to suffer life imprisonment and to pay a fine of

Rs.1000/- and in default of payment of fine to undergo rigorous

imprisonment for two months. The Trial Judge also convicted the

appellant for the offence punishable under Section 498-A of the Indian

Penal Code and sentenced him to suffer rigorous imprisonment for one

year and to pay a fine of Rs.500/-, in default to suffer R.I. for one

month. The learned Trial Judge has directed that both the sentences

shall run concurrently.

The learned Sessions Judge found that the prosecution has

failed to prove the charges against Kailash Narayan Kakde, Narayan

Gavhanji Kakde, Sau.Shashikala Narayan Kakde, Sau.Sunita Dilip

Khillare and Sau.Rekha Rajesh Jadhav. Accused No.3 Narayan died

during the pendency of the Sessions Case and therefore, case abated

against him.

3. The case of the prosecution is as follows -

th On 29 December, 2007, Shri Vasanta Mahada Hivale,

resident of village Deulgaon Ghube, Tq.Chikhali, Distt.Buldana lodged

report with Police Station Chikhali alleging that his daughter Mrs.Anita

Punjab Kakde was killed by the appellant and his brother Kailash

Narayan Kakde, his father Narayan Gavhanji Kakde, his mother

Sau.Shashikala Narayan Kakde, his sister Sau.Sunita Dilip Khillare

and Sau.Rekha Rajesh Jadhav. According to the complainant

Vasanta, the marriage of Anita (deceased) and the appellant was

solemnized 9 to 10 years prior to the incident and they had two sons;

Master Shubham, aged 6 years and Master Suraj, aged 4 years. The

appellant was serving on the private vehicle as driver. The appellant,

Anita (deceased) and their children were residing in one portion of the

house partitioned by means of curtain and other members of the

appellant's family i.e. his father, mother, brother and sister were

residing in other portion of the house. The appellant and his family

members were making demands regularly and asked Anita to bring

grocery articles from her parents every month and also money for

household expenditure and Anita was given illtreatment and

harassment by them. About three years prior to the incident, the

appellant had beaten Anita and he demanded tin sheets to be fixed on

his house and the complainant and his other son-in-law Sanjay

Sahebrao Kadam had purchased 5 tin sheets and had reached the tin

sheets to the house of the appellant. In the earlier year, prior to the

incident, the appellant, his father and his mother had beaten Anita and

demanded door and the complainant Vasant purchased a wooden door

for Rs.1500/- and got it fixed to the house of the appellant.

The complainant stated that 8 days prior to the incident,

Anita had come to her parents' house at 2.00 p.m. At that time the

complainant was in his field and his other daughter Mrs.Sunita was

present in the house. Anita had told her sister that the appellant and

his father and mother had asked her to bring Rs.30,000/- from her

father for the purpose of purchasing one Auto Rickshaw. Though Anita

was asked to stay at her father's house she left her father's house at

about 3.00 p.m. saying that if she does not return to her matrimonial

home then the appellant and his family members would beat her.

Mrs.Sunita Borde informed this fact to the complainant.

th On 28 of December, 2007 at about 8.30 to 8.45 p.m.,

somebody informed the complainant that Anita was being admitted in

the rural hospital Chikhali. After getting the information, the

th complainant along with his family members went to Chikhali. On 29

of December, 2007 they saw dead body of Anita and noticed injuries

on her hands, legs, neck and other parts of her body. The

complainant lodged the report (Exh.43) with Police Station Chikhali

against the appellant and Kailash Narayan Kakde, Narayan Gavhanji

Kakde, Sau.Shashikala Narayan Kakde, Sau.Sunita Dilip Khillare and

Sau.Rekha Rajesh Jadhav stating that they had killed Anita by beating

her mercilessly for not bringing Rs.30,000/- from her father.

4. On the basis of the report of Vasanta, P.S.O. of Police

Station, Chikhali registered the offence against the appellant and

Kailash Narayan Kakde, Narayan Gavhanji Kakde, Sau.Shashikala

Narayan Kakde, Sau.Sunita Dilip Khillare and Sau.Rekha Rajesh

Jadhav under Section 302 read with Section 34 of the Indian Penal

Code vide Crime No.186 of 2007 (Exh.44). After the registration of the

offence, the P.S.I. has done the investigation. He arrested the

th appellant, Kailash, Narayan and Sau.Shashikala on 29 of December,

2007. The Investigating Officer arrested Sau.Sunita and Sau.Rekha

rd on 3 of January, 2008. After conducting the necessary investigation,

the charge-sheet was filed against the appellant and Kailash, Narayan,

Sau.Shashikala, Sau.Sunita and Sau.Rekha in the Court of the learned

Judicial Magistrate (F.C.), Chikhali, for the offence punishable under

Sections 302, 498-A read with Section 34 of the Indian Penal Code

th vide charge sheet No.20 of 2008 on 29 of February, 2008. The case

being triable by the Court of Sessions, the learned Magistrate

th committed the case to the Court of Sessions, Buldana on 10 of

March, 2008. The learned Sessions Judge framed the charge on

th 4 of August, 2008, for the offences punishable under Section 302,

498-A read with Section 34 of the Indian Penal Code. The contents of

the charge were read over and explained to the accused in vernacular.

The accused did not accept the guilt and claimed to be tried. The

learned Trial Judge proceeded with the matter and by the judgment

th dated 27 of January, 2010 concluded that the prosecution has proved

that the death of Anita was homicidal. The learned Sessions Judge

further concluded that the prosecution has proved that the appellant

committed murder of Anita by intentionally or knowingly causing her

death by hitting wooden bat on her head and thereby the appellant

committed offence punishable under Section 302 of the Indian Penal

Code. The learned Sessions Judge further concluded that the

prosecution has proved that the appellant subjected Anita to cruelty

and demanded Rs.30,000/- for purchasing auto rickshaw and had

beaten her and tortured her physically and mentally with a view to

coerce her or any person related to her to meet any unlawful demand

and thereby the appellant had committed an offence punishable under

Section 498-A of the Indian Penal Code.

5. The learned Trial Judge, convicted the appellant/accused

for the offence punishable under Sections 302 of the Indian Penal

Code and sentenced him to suffer life imprisonment and to pay a fine

of Rs.1000/- and in default of payment of fine to undergo rigorous

imprisonment for two months. The learned Trial Judge also convicted

the appellant for the offence punishable under Section 498-A of the

Indian Penal Code and sentenced him to suffer rigorous imprisonment

for one year and to pay a fine of Rs.500/-, in default to suffer R.I. for

one month. The learned Trial Judge has directed that both the

sentences shall run concurrently. The appellant being aggrieved by

the conviction and sentence has filed this appeal.

6.

Shri Sirpurkar, the learned Advocate for the appellant has

submitted that the conviction of the appellant is based only on the sole

testimony of Master Shubham (PW 10) who is the son of the appellant

and Anita (deceased). According to Shri Sirpurkar, the learned

Advocate for the appellant, the conviction of the appellant on the basis

of the sole testimony of Master Shubham is improper, inasmuch as at

the time of the incident master Shubham was only 6 years old and

looking to the tender age of master Shubham, the conviction of the

appellant for the offence punishable under Section 302 of the Indian

Penal Code is improper and unjustified. The learned Advocate for the

th appellant has submitted that the incident has taken place on 28 of

December, 2007 at 20.30 hrs. and according to the prosecution,

Master Shubham is an eye witness to the incident but the statement of

Master Shubham is not recorded by the Investigating Officer for almost

11 days. The learned Advocate for the appellant, while criticizing the

conduct of the prosecution has submitted that the statement of Master ig th Shubham is recorded on 8 of January, 2008 and that too when he

was brought to the police station by PW 4 Sangita (real sister of Anita),

Durgabai (mother of Anita), Baba Rajendra and Nana @ Sanjay

Kadam (husband of Sangita). Shri Sirpurkar, the learned Advocate for

the appellant has submitted that immediately after the incident, Master

Shubham was in the custody of his maternal grand parents and

Sangita (PW 4) and because of this and the fact that the statement of

Master Shubham is recorded after eleven days, there is every

possibility that Master Shubham is tutored and the statement given by

him is influenced by the above mentioned persons. According to the

learned advocate for the appellant, the uncorroborated testimony of

Master Shubham cannot be relied upon to maintain the conviction of

the appellant for the offence punishable under Section 302 of the

Indian Penal Code. In support of his submission, he relied on the

judgment reported in (2003)3 SCC 21 (Bhagwan Singh and ors. ..vs..

State of M.P.). In this judgment, the Hon'ble Supreme Court has laid

down, in paragraph No.19, as follows -

"19. The law recognizes 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 upon without

other corroborative evidence. The evidence of a

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." (See Panchhi v. State of U.P.)

Shri Sirpurkar, learned Advocate has further relied on the

judgment reported in (2004) 13 SCC 243 (Orsu Venkat Rao ..vs..

State of A.P.), in support of his submission that the testimony of

Master Shubham who was aged about 6 years at the time of the

incident, cannot be relied upon for maintaining the conviction of the

appellant under Section 302 of the Indian Penal Code.

7. Shri Sirpurkar, learned Advocate for the appellant has

submitted that in the present case there is no evidence corroborating

the testimony of Master Shubham and therefore, the impugned

judgment and the consequent conviction of the appellant is bad in law.

The learned Advocate has submitted that the wooden bat used for

committing the offence was not sealed after seizure and the seizure

memo does not show that the blood stains were found on the bat.

The learned Advocate has further submitted that the other family

members of the appellant were also prosecuted for the same offence

but they are acquitted and this shows that the conviction of the

appellant is not sustainable.

8. Mr.Mirza, the learned Additional Public Prosecutor, has

submitted that the recording of the statement of Master Shubham after

eleven days does not make any difference as Master Shubham has

given evidence before the Court and he has been extensively cross-

examined on behalf of the appellant and nothing has been brought in

the cross-examination to doubt or discard his testimony. Mr.Mirza,

learned Additional Public Prosecutor has submitted that the

corroborative evidence in the form of Chemical Analysis Report also

supports the case of the prosecution. According to him, stains of

blood of group 'B' are found on the bat which is used in the crime and

blood group 'B' is of Anita (deceased). He submits that, in addition,

the pant and Manila of the appellant are found to contain blood of

group 'B'. According to the learned APP, further more the PW 1

Vasanta (father of Anita), PW 3 Sunita (elder sister of Anita) and PW

No.4 Sangita (elder sister of Anita) have stated in their evidence that

the appellant was illtreating Anita and was making unlawful demands

from her.

9. Mr.Mirza, learned Additional Public Prosecutor, has

submitted that the Trial Court has rightly convicted the appellant

relying on the testimony of Master Shubham. Hehj has submitted that

the argument made on behalf of the appellant that the conviction of the

appellant cannot be based on the sole testimony of Master Shubham

as he was only 6 years old at the time of incident, cannot be accepted

in view of the law laid down by the Hon'ble Supreme Court in the

judgment reported in 2001 Cri.L.J. 705 (Suryanarayana ..vs.. State

of Karnataka).

Mr.Mirza, learned APP has further submitted that the delay

in recording the statement of Master Shubham also does not affect the

case of the prosecution and in support of his submission he relied on

the judgment reported in AIR 2005 SC 1000 (State of U.P. ..vs..

Satish).

10.

We have heard the learned Advocate for the appellant,

learned Additional Public Prosecutor and have gone through the

record.

11. The submission of Mr.Sirpurkar that Master Shubham has

been tutored by his maternal relatives and therefore, his testimony

should not be relied upon to maintain the conviction of the appellant,

does not appeal to us. Though the statement of Master Shubham is

not recorded immediately after the incident and it is recorded after 11

th days on 8 of January, 2008, it cannot be said that the testimony of

Master Shubham should be discarded. The Investigating Officer has

stated in his deposition that he had made attempts on 2 - 3 occasions

to record the statement of Master Shubham but due to bad mental

condition of Master Shubham there was delay in recording the

statement. Moreover, Master Shubham has withstood the cross-

examination which runs into 3½ pages. We have minutely scrutinized

the evidence of Master Shubham and we find that the evidence of

Master Shubham inspires confidence and it cannot be discarded.

One important factor which has to be considered is that Master

Shubham has given evidence against his father.

In the judgment reported in AIR 2005 SC 1000 (State of

U.P. ..vs.. Satish), in paragraph No.19, the Hon'ble Supreme Court

has laid down as follows -

"19. As regards delayed examination of certain

witnesses, this Court in several decisions has held

that unless the Investigating Officer is categorically

asked as to why there was delay in examination of

the witnesses the defence cannot gain any

advantage therefrom. It cannot be laid down as a

rule of universal application that if there is any delay

in examination of a particular witness, the

prosecution version becomes suspect. It would

depend upon several factors. If the explanation

offered for the delayed examination is plausible and

acceptable and the court accepts the same as

plausible, there is no reason to interfere with the

conclusion (See Ranbir and others v. State of

Punjab, (AIR 1973 SC 1409), Bodhraj alias Bodha

and others v. State of Jammu and Kashmir, (2002

(8) Guddu v. State of M.P., (2004) (1) SCC 414)."

In view of the explanation given by the Investigating Officer

in his evidence for the delay in recording the evidence of Master

Shubham and in view of the law laid down by the Hon'ble Supreme

Court, as above, we are of the view that the delay of 11 days in

recording the statement of Master Shubham does not affect the

veracity of his testimony.

12. In the judgment reported in 2001 Cri.L.J.705

(Suryanarayana ..vs.. State of Karnataka), the Hon'ble Supreme

Court has laid down, in paragraph nos. 5, 10 and 11, as follows -

"5. Admittedly, Bhavya (PW 2), who at the

time of occurrence was about four years of

age, is the only solitary eye-witness who

was rightly not given the oath. The time

and place of the occurrence and the

attending circumstances of the case

suggest no possibility of there being any

other person as an eye-witness. The

evidence of the child witness cannot be

rejected per se, but the Court, as a rule of

prudence, is required to consider such

evidence with close scrutiny and only on

being convinced about the quality of the

statements and its reliability, base

conviction by accepting the statement of

the child witness. The witness of PW 2

cannot be discarded only on the ground of

her being of Teen age. The fact of being

PW 2 a child witness would require the

Court to scrutinies her evidence with care

and caution. If she is shown to have stood

the test of cross-examination and there is

no infirmity in her evidence, the prosecution

can rightly claim a conviction based upon

her testimony alone. Corroboration of the

testimony of a child witness is not a rule but

a measure of caution and prudence.

Some discrepancies in the statement of a

child witness cannot be made the basis for

discarding the testimony. Discrepancies in

the deposition, if not in material particular,

would lend credence to the testimony of a

child witness who, under the normal

circumstances, would like to mix up what

the witness saw with what he or she is

likely to imagine to have seen. While

appreciating the evidence of the child

witness, the Courts are required to rule out

the possibility of the child being tutored. In

the absence of any allegation regarding

tutoring or using the child witness for

ulterior purposes of the prosecution, the

Courts have no option but to rely upon the

confidence inspiring testimony of such

witness for the purposes of holding the

accused guilty or not."

10. On appreciation of evidence in the

light of various pronouncements the High

Court rightly held:

"The version of APW 2 Bhavya is so

truthful that it was rightly believed by the

Court below. The criticism levelled against

the evidence of PW 2 that she was tutored

etc. are wholly baseless and are

unwarranted."

"11. The defence evidence produced in the

case also does not weaken any part of the

statement of Bhavya (PW 2). No

suggestion was made to the witness for

allegedly making a false or tutored

statement."

In the present case also, we find that no suggestion was

made to Master Shubham about the alleged tutoring. Moreover, the

evidence of Vasanta (PW 1), Mrs.Sunita (PW 3) and Sangita (PW 4)

corroborate the prosecution about the illtreatment given to Anita

(deceased) and unlawful demands made by the appellant.

The appellant has admitted that he had taken Anita

(deceased) to the hospital in an auto rickshaw and this shows that the

appellant was present at the time of incident. The incident has taken

place in the house of the appellant which was matrimonial house of

Anita (deceased). The appellant has not given any explanation for the

injuries which are found on the body of the appellant. The details of

the injuries shows that Anita (deceased) was beaten very badly.

(i) Contusion on face left side.

(ii) Abrasions 4 in numbers on neck left side size ½

th cm. x 1/4 cm.

(iii) Abrasion on neck anteriorly 5 x 1 cm.

(iv) Abrasion on neck anteriorly just below thyroid of ig th size ½ x 1/4 cm.

(v) Abrasion on chin of size 1 cm. x ½ cm.

(vi) Abrasion o n back left side 4 x 1 cm.

(vii) Bruise on neck right side 1 inch x ½ inch.

(viii) Abrasion on back left scapular area of size 6 inch x 1 inch.

(ix) Multiple contusions on both scapular and intra scapular area.

(x) Multiple contusions on buttocks on both sides.

(xi) Multiple contusions on both thighs, posteriorly and anteriorly.

(xii) Contusion on both legs posteriorly.

(xiii) Contusion on both feet.

(xiv)Multiple contusions on left arm and fore arm laterally.

(xv) Contusion on right arm lateral aspect.

(xvi)Contusions on both hands, both hands are swollen.

(xvii) CLW on scalp on left side just behind left ear of

size 1 x ½ inch.

All injuries are ante mortem in nature.

On internal examination, Dr.Meena Kasare (PW 9) found

following injuries.

(i) Contusion on scalp on left side, just behind left ear temporal area of size 1 x ½ inch with laceration on

it.

(ii) Crack fracture of left temporal bone with Haematoma seen.

(iii) Brain matter congested.

13. Considering all the material on the record, we are of the

view that the appellant has not made out any case for interference.

The judgment passed by the learned Sessions Judge and the

conviction of the appellant are maintained.

14. Mr.Sirpurkar, the learned Advocate for the appellant, has

submitted alternatively that the prosecution has not brought on record

any motive for the murder of Anita and therefore, the conviction of the

appellant for the offence punishable under Section 302 of the Indian

Penal Code is not proper and justified and the judgment has to be

modified to that extent and the punishment for lesser offence may be

given to the appellant. Considering the manner in which the offence is

committed and the number of injuries which are found on the body of

Anita (deceased), we are of the view that the case of the appellant

does not require consideration for punishment for lesser offence and

the conviction of the appellant under Section 302 of the Indian Penal

Code and Section 498-A of the Indian Penal Code has to be

maintained.

15. The appeal is, therefore, dismissed.

16. Fees to be paid to the learned Advocate appointed for the

appellant are quantified at Rs.5000/-.

                                   
                JUDGE
                      ig                                        JUDGE
                    
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