Sanjay Namdev Gaikwad vs The State Of Maharashtra
2021 Latest Caselaw 3116 Bom

                                                                    CrApl-585-2014.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 585 OF 2014

Sanjay s/o Namdeo Gaikwad
Age 52 years Occu. Nil.
r/o Shankarnagar Parbhani
at Present Adharsha colony Latur
Taluka and District : Latur                                     ... Appellant
                                                               (Orig. Accused)
                   Versus

The State of Maharashtra
Through Police Station
Shivajinagar, Latur
Tq. and District Latur.                                          ... Respondent

                                     ...
           Advocate for Appellant : Mr. M. A. Tandale (Appointed)
             APP for Respondent - State : Mr. R. V. Dasalkar
                                     ...

                                    CORAM : RAVINDRA V. GHUGE AND
                                            B. U. DEBADWAR, JJ.

RESERVED ON : 30TH JANUARY, 2021 PRONOUNCED ON : 17TH FEBRUARY, 2021

JUDGMENT [ PER B. U. DEBADWAR, J.]:

1. This appeal, under Section 374(1) of Code of Criminal

Procedure, 1973 (hereinafter referred as 'Cr.P.C.'), has been

directed against the judgment and order dated 16-08-2014 passed

by the learned Additional Sessions Judge, Latur, in Sessions Case

No. 124 of 2013, thereby convicting the appellant / accused under

Section 302 of the Indian Penal Code (hereinafter referred as

'I.P.C.') and sentencing him to undergo imprisonment for life and

pay fine of Rs.2,000/- (Rupees Two Thousand only), in default to

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undergo further rigorous imprisonment for two months.

2. Facts unfolding the case of the prosecution in the

nutshell are as under :

a) Deceased Umabai, a middle aged lady, was the wife of

the appellant / accused. The couple was blessed with two

daughters and two sons. Both the daughters were married. The

appellant / accused was original resident of District Parbhani. He

had migrated to Latur for earning livelihood. Satish Bora (DW3)

had employed him as a watchman at his construction site, situated

at New Adarsh Colony, Latur. The appellant / accused along with

his father, wife Umabai and two sons namely Akash and Vikas used

to reside at the construction site. Elder daughter of appellant /

accused and deceased Umabai by name Sheela Dilip Raibhole

(PW2) used to reside with her husband in Narsinh Nagar, Latur.

b) Appellant / accused was in habit of drinking liquor. He

used to pick up quarrel and beat wife Umabai, suspecting her

character. On 08-07-2013 at about 10:30 p.m., as usual, appellant

/ accused had come to house in drunken state and started

quarreling and beating wife Umabai, after raising doubt about her

fidelity. Father and sons of the appellant / accused tried to give

him understanding, but in vain. Since, appellant / accused had

become violent and was not in a mood to listen to father and sons,

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father and elder son of the appellant / accused left the house and

proceeded to Parbhani. When wife Umabai and younger son Vikas

(PW3) remained in the house, appellant / accused mercilessly beat

wife Umabai with a solid stick. Consequently, deceased Umabai

suffered 22 injuries all over the body and ultimately succumbed to

the said injuries in the house itself.

c) Soon after deceased Umabai's lying in supine condition

without giving response, appellant / accused along with the

younger son Vikas (PW3) rushed to the house of Sheela (PW2)

situated in Narsinh Nagar, Latur, and informed her about the

incident. Since, appellant / accused was under the influence of

liquor, Sheela (PW2), by taking brother Vikas (PW3) aside from the

appellant / accused, asked him in detail about the incident. On

Vikas's disclosing her about the incident and the death of Umabai,

Sheela along with her husband and brother Vikas left her house and

proceeded to the house of appellant / accused, situated at the

construction site of Satish Bora (DW3) and saw her mother Umabai

lying in the house in dead condition, with injuries all over the body.

Then, along with brother Vikas, went to Shivajinagar Police Station,

Latur, and lodged the report narrating the incident referred above.

d) On the basis of the said report lodged by Sheela (PW2),

Crime bearing No. 129 of 2013, for the offence punishable under

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Section 302 of I.P.C., came to be registered at Shivajinagar Police

Station, Latur, on 09-07-2013 at about 04:10 a.m.

e) The investigation of the said crime was carried by

Rajkumar Ganpatrao Sonawane (PW5), Police Inspector. During

the course of investigation, initially, inquest panchanama of the

dead body of Umabai was drawn by proceeding to the spot of

incident along with panchas, then, dead body of Umabai was sent

to the Government Medical College and Hospital, Latur, for

conducting postmortem, along with copy of the inquest and

requisition for conducting postmortem. Thereafter, in presence of

panchas, spot panchanama was drawn and blood found on the spot

was collected with cotton swab in a plastic box, and the same was

packed and sealed. Then, appellant / accused was arrested after

drawing arrest panchanama. Then, the statements of material

witnesses, including PW3 Vikas, were recorded. Then, crime

weapon viz. solid Velu stick, came to be recovered from the place

discovered at the instance of appellant / accused, under Section 27

of the Evidence Act. Then, blood samples of deceased Umabai and

appellant / accused, collected by the Medical Officer, were sent to

the Forensic Science Laboratory, along with the crime weapon and

blood collected from the spot, for chemical analysis and report.

Thereafter, postmortem report and C.A. reports were collected.

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After completion of investigation, accused was charge-sheeted for

committing murder of wife Umabai under Section 302 of I.P.C.,

before the learned J.M.F.C., Latur, who, in turn, committed the case

to the Sessions Court at Latur.

f) After committal of the case, on 05-12-2013, learned

Additional Sessions Judge, Latur, vide Exhibit-7, framed charge

under Section 302 of I.P.C. against the appellant / accused. Since

appellant / accused claimed to be tried, after pleading not guilty,

trial was commenced.

g) During the course of trial, prosecution had examined

five witnesses viz. :-

PW1 - Saddam Abbaskhan Pathan PW2 - Sheela Dilip Raibhole, daughter of the deceased PW3 - Vikas Sanjay Gaikwad, son the deceased PW4 - Dr. Rahul Bhagwan Umbre, Medical Officer PW5 - Rajkumar Ganpatrao Sonawane, P.I., Investigating Officer

h) The trial Court recorded statement of appellant /

accused under Section 313(1)(b) of Cr.P.C. Thereafter, recorded

the evidence of appellant / accused and two more witnesses

examined by him in his defence viz. Arjun Sudhakar Bakale (DW2)

and Satish Tejmal Bora (DW3). Upon that, held appellant / accused

guilty for the murder of wife Umabai and sentenced him to life

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imprisonment and fine, which is a minimum sentence provided for

the offence of murder, punishable under Section 302 of I.P.C.,

holding that the testimony of Vikas (PW3) is clear, cogent and

sufficient to prove the incident and complicity of the appellant /

accused in the incident. The defence of appellant / accused that

deceased Umabai suffered the injuries due to falling on the hard

and rough surface, is not at all worthy of credence and cannot be

accepted. Being aggrieved by the impugned judgment and award,

appellant / accused has preferred the present appeal.

2. We have heard Mr. M. T. Tandale, learned advocate for

the appellant and Mr. Dasalkar, learned Additional Public

Prosecutor, appearing for the respondent - State, at length.

3. Mr. Tandale, learned advocate, while taking us through

record, vehemently argued that the case of the prosecution is

mainly based on the evidence of Vikas Gaikwad (PW3), son of the

appellant / accused and deceased Umabai, who was 9 years old

child when the incident took place. Therefore, his evidence should

be evaluated more carefully and with greater circumspection, and it

should be corroborated by other cogent evidence. Prosecution has

not examined father or elder son of the appellant / accused to

corroborate the evidence of Vikas (PW3). Non examination of

father and elder son of appellant / accused, though available, is

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fatal lapse on the part of prosecution. Moreover, in view of the

admission given by Vikas (PW3) in his cross examination that since

the death of mother Umabai he is residing with his sister Sheela

(PW2) and she is incurring his educational expenses, it would not

be legal and proper to rely on his solitary evidence, for basing

conviction of accused.

4. Mr. Tandale, learned advocate, further argued that,

evidence of Sheela (PW2) is hearsay in nature. She had lodged the

FIR on the basis of information received from Vikas (PW3).

Therefore, her evidence no way helps the prosecution for seeking

corroboration to the evidence of Vikas (PW3). Mr. Tandale also

argued that, in the absence of panch witnesses, merely relying on

the evidence of Rajkumar Sonawane (PW5), investigating officer,

the case of prosecution about recovery of crime weapon, i.e. solid

stick, from the place discovered at the instance of appellant /

accused, under Section 27 of the Evidence Act, cannot be believed

and accepted.

5. According to Mr. Tandale, when evidence of Sheela

(PW2) is of hearsay in nature, evidence of Vikas (P3) is not free

from tutoring and evidence of I.O. Rajkumar Sonawane (PW5)

about recovery of crime weapon, under Section 27 of the Evidence

Act, is doubtful, appellant / accused cannot be convicted for the

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offence of murder of wife Umabai.

6. Mr. Tandale, lastly submitted that prosecution has to

stand on its own legs and cannot take benefit of weaknesses of

defence. In view of this settled position of law, appellant / accused

cannot be held guilty of the charge under Section 302 of I.P.C.

relying on the evidence in defence, led by him. Learned Additional

Sessions Judge, Latur, failed to appreciate the evidence on record

in proper perspective and wrongly held the appellant / accused

guilty.

7. In alternate, Mr. Tandale submitted that all the injuries

suffered by the deceased Umabai were on non-vital parts of the

body and simple in nature. After having suffered those injuries,

Umabai was lying at the spot unattended for about four hours.

Looking to the nature of injuries suffered by Umabai, she would

have survived if she had been shifted to the hospital immediately.

Dr. Rahul Umbre (PW4), who conducted postmortem on the dead

body of deceased Umabai, nowhere stated in his evidence that the

injuries suffered by Umabai were sufficient to cause death in

ordinary course of nature. Evidence on record indicates that quarrel

took place between husband and wife and during that quarrel,

deceased Umabai suffered the injuries. The element of intention is

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totally absent. When evidence on the aspect of intention is missing

and none of the injuries were life threatening, at the most, case

falls within the ambit of Section 304 Part-II of I.P.C. and not under

Section 302 of I.P.C. Accordingly, Mr. Tandale prayed for

conversion of case from Section 302 of I.P.C. to Section 304 Part-II

of I.P.C. and setting the appellant / accused free by awarding the

sentence which he has already undergone.

8. Per contra, Mr. Dasalkar, learned APP, vehemently

argued that the case is based on the sole eye witness. It is clear

from record that at the time of incident, except appellant / accused,

deceased Umabai and their son Vikas (PW3), nobody was present in

the house. Father and elder son Akash had left the house when

they realised that appellant / accused was not responding to the

understanding being given by them. Since, the incident took place

during night time, inside the house, and nobody was residing in

close vicinity of the said house, question of examining any adult

independent witness does not arise.

9. According to the learned APP, Vikas (PW3), being son of

deceased Umabai and appellant / accused both, cannot be said to

be interested witness. It was Vikas (PW3), who along with

appellant / accused rushed to the house of Sheela (PW2), after

Umabai's death due to assault committed by appellant / accused,

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and informed her about the incident. And, on the basis of the

information received from him, Sheela (PW2) lodged the FIR.

Therefore, question of Sheela's (PW2) tutoring Vikas (PW3) does

not arise. Vikas (PW3) has given clear account of the incident in his

evidence at Exhibit-22. He withstood searching cross examination.

Therefore, merely for the reason that he was a child witness, his

evidence supported by the medical evidence and recovery of crime

weapon at the instance of appellant / accused, cannot be discarded.

10. Mr. Dasalkar, learned APP, further argued that evidence

of Dr. Rahul Umbre (PW4) completely rules out possibility of

Umabai's suffering injuries by falling from the third floor.

Therefore, from any angle, the impugned judgment cannot be said

to be incorrect or improper.

11. Lastly, Mr. Dasalkar argued that, when the evidence on

record clearly makes out the case covered by clauses 'Secondly'

and 'Thirdly' of Section 300 of I.P.C., only for the reason that most

of the injuries suffered by the deceased Umabai were on the non-

vital parts, absence of intention cannot be drawn. Moreover,

evidence of Satish Bora (DW3) completely negatives the defence of

appellant / accused. Therefore, appeal is liable to be dismissed.

12. The case is based on the direct evidence, circumstantial

evidence and motive. Prior to dealing with the evidence, we would

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like to note down the facts which are not in dispute. They are as

under :-

a) Deceased Umabai was the legally wedded wife of appellant /

accused.

b) The couple was blessed with two daughters and two sons.

c) The marriages of both the daughters were performed.

d) First informant Sheela (PW2) was the eldest and married

daughter of deceased Umabai and appellant / accused and she used

to reside with her husband at Narsinh Nagar, Latur.

e) Vikas (PW3) was the youngest son of appellant / accused and

Umabai and he used to reside with them at the construction site of

Satish Bora (DW3), situated in New Adarsh Nagar, Latur.

f) Satish Bora (DW3) had employed appellant / accused as a

watchman at his construction site situated at New Adarsh Nagar,

Latur, where he was constructing three storey building.

g) Appellant / accused, along with family, used to live at the

construction site situated in New Adarsh Nagar, Latur.

WHETHER DECEASED UMABAI DIED OF HOMICIDAL DEATH

13. To prove that Umabai died of homicidal death,

prosecution has placed its reliance on inquest panchanama (Exhibit-

31), proved in the evidence of I.O. Rajkumar Sonawane (PW5), and

postmortem report (Exhibit-25), proved in the evidence of Dr.

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Rahul Umbre (PW4), Medical Officer, Government Medical College

and Hospital, Latur, who conducted postmortem on the dead body

of deceased Umabai. Dr. Rahul Umbre (PW4), vide its testimony at

Exhibit-24, deposed that on 09-07-2013, dead body of Umabai was

brought to the Government Medical College and Hospital, Latur for

postmortem. He conducted postmortem on the said dead body.

During the postmortem 22 external and 5 internal injuries were

found on the dead body of Umabai, which are as follows :-

"External wounds and injuries :-

1) Laceration on right forehead of size 2.5 cm x 0.5 cm. present on 2.5 cm. above right eye brow and 2 cm. laternal to mid line, reddish margins.

2) Contusion of size 7.5 cm. X 4.5 cm present on left side of chest at infraclavicular region, 7 cm. above left nipple, 6 cm. lateral to midline, reddish margins.

3) Contusion of size 11 cm x 12 cm on epigastric region at mid line, 5.5 cm. above umbilicus, reddish margins.

4) Contusion of size 15 cm. X 11 cm present on left fore arm flexor aspect at lower part involving wrist and dorsal aspect of thumb, reddish margins.

5) Contusion of size 5 cm x 4 cm on dorsal aspect of left hand reddish colour.

6) Laceration of size 3.5 cm x 2 cm on interphalyngeal space between little finger and ring finger, reddish colour, blood oozing.

7) Contusion of size 6.5 cm x 5 cm on dorsal aspect of right arm, reddish.

8) Contusion of size 14 cm x 4.5 cm present on right (palm) hand going to flexor aspect of forearm, reddish.

9) Contusion of size 9 cm x 10 cm present on right arm at upper part on lateral aspect, 7.5 cm below tip of shoulder, reddish.

10) Contusion of size 37 cm x 39 cm present on antero

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lateral surface and gluteal surface of right thigh at upper part, reddish.

11) Contusion of size 12 cm x 9 cm present on right leg, anteriorly just below knee joint, reddish margins.

12) Laceration of size 5.5 cm x 2 cm on right leg anteriorly, 13 cm above malleolus with surrounding contusions, reddish, with underline fracture of tibia fibula, blood infiltration. The contusion was 12 cm x 6 cm.

13) Contusion of size 10 cm x 8 cm on dorsal aspect of right foot just in front of ankle joint, reddish.

14) Contusion of size 8 cm x 5 cm on medial thigh 10 cm below inguinal region of left lower limb, reddish.

15) Contusion of size 13 cm x 6 cm present on left thigh medially 12 cm above popleteal fossa, reddish colour.

16) Contusion of size 6 cm x 5 cm, present on left thigh anteriorly just above knee joint, reddish.

17) Contusion of size 16 cm x 11 cm present on left gluteal region upper aspect, reddish.

18) Contusion of size 12 cm x 11 cm present on left buttock posteriorly on left side medially, reddish.

19) Contusion of size 25 cm x 23 cm present on lateral posterior (posterolateral) aspect of left thigh, reddish.

20) Contusion of size 9 cm x 7 cm just below and lateral to left knee, reddish.

21) Laceration of size 3 cm x 1 cm on middle 1/3rd of shin of left leg, reddish.

22) Contusion of size 16 cm x 13 cm present on antero lateral aspect of lower half of left leg, reddish.

Internal wounds and injuries :-

1) Subperiosteal and subgaleal contusion present on high parietal region to left parietal protrubarance of size 17 cm x 13 cm, reddish.

2) Contusion under scalp on right frontal region of size 2 cm x 2 cm, reddish.

3) Subarachnoid haemorrhage was seen at upper part of left parietal lobe, red.

4) Contusion of size 6 cm x 3 cm present under skin on chest at 2nd to 3rd inter costal space, 2 cm lateral to mid line, reddish (left side).

5) Contusion of size 9 cm x 8 cm present on left chest under skin at 2nd to 4th inter costal space, 6 cm lateral

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to mid line, reddish."

14. According to Dr. Rahul Umbre (PW4), all the aforesaid

injuries suffered by deceased Umabai were ante-mortem in nature

and were the cause of her death. Postmortem report (Exhibit-25)

supports his aforesaid version, as to the injuries suffered by

deceased Umabai, nature of the said injuries and cause of death of

Umabai. The inquest panchanama (Exhibit-31), drawn at the spot

prior to shifting the dead body of Umabai to Government Medical

College and Hospital, Latur, for postmortem, also lends

corroboration to his evidence, as far as injuries suffered by Umabai

are concerned.

15. In cross examination, Dr. Rahul Umbre (PW4) has

stated about the age of aforesaid injuries suffered by Umabai.

According to him, age of the said injuries was 12 Hours to 18

Hours. Postmortem report (Exhibit-25) reveals that postmortem on

the dead body of deceased Umabai was carried out by Dr. Rahul

Umbre (PW4) and two more medical experts viz. Dr. V. M. Kumre

and M.E. Bansude, on 09-07-2013 during 02:00 p.m. to 04:00 p.m.

Looking to the age of the injuries suffered by deceased Umabai,

which has come on record through the cross examination of Dr.

Rahul Umbre (PW4), it is clear enough that deceased Umabai

succumbed to the multiple injuries during intervening night of

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08-07-2013 and 09-07-2013.

16. Dr. Rahul Umbre (PW4), during further cross

examination, has very clearly denied the suggestion put to him that

the injuries mentioned in postmortem report (Exhibit-25) are

possible by falling from the third floor of the building, however, he

has admitted that contusions and lacerations can be caused by

falling on the ground. In examination-in-chief, after looking at the

crime weapon stick (Article-A), Dr. Rahul Umbre (PW4) very clearly

stated that all the injuries suffered by deceased Umabai, as

mentioned in the postmortem report (Exhibit-25), are possible by

the blows of the stick at Article-G.

17. Thus, having regard to the totality of the evidence of

Dr. Rahul Umbre (PW4), it is clear enough that deceased Umabai

died of homicidal death.

WHETHER APPELLANT / ACCUSED IS THE AUTHOR OF INJURIES SUFFERED BY DECEASED UMABAI

18. Vikas (PW3) a star witness of the case, vide his

deposition at Exhibit-22, has deposed that incident took place on

08-07-2013 at about 10:30 p.m. Prior to the incident, appellant /

accused had come to the house in drunken state. After coming

house, appellant / accused started beating mother Umabai,

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suspecting about her character. At that time, he himself, his

brother Akash and grandfather were present. They asked appellant

/ accused not to beat his mother. Thereafter, his brother Akash

and grandfather left the house. Therefore, he alone was present in

the house. When he asked appellant / accused not to beat mother

Umabai, appellant / accused gave him a blow of stick. The incident

lasted for about one to two hours. His mother died in that incident.

Thereafter, appellant / accused took him to the house of Sheela

(PW2). On reaching there, appellant / accused pelted stones on the

house of Sheela (PW2). Sheela (PW2) was residing on the first

floor. She came down the stairs and asked him what happened,

after taking him aside. He told her that Umabai died due to beating

her with the stick, by appellant / accused. Thereafter, he along

with appellant / accused, Sheela (PW2) and husband of Sheela

came to their house. Husband of Sheela made a phone call to

Satish Bora (DW3). Satish Bora (DW3) came to their house in

pursuance of the call made by husband of Sheela. He called the

police by making phone call to the police station. Sheela and her

husband saw that deceased Umabai was lying in the room. Vikas

(PW3) has identified the stick Article-G when shown to him.

Besides, he has identified Saree Article-A, Petticoat Article-B,

Blouse Article-C, which were worn by his mother Umabai at the

time of incident and also identified pant Article-D, shirt Article-E

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and Baniyan Article-F, worn by the appellant / accused at the time

of incident.

19. In the cross examination, he has stated that nobody

from them, at any point of time, had lodged the report against

appellant / accused, complaining that he drinks and quarrels with

mother Umabai. His mother was not doing the work of watering

new construction for curing purpose. According to him, incident of

falling dawn of mother Umabai from third floor, while pouring /

spraying water on new construction, did not happen. They went to

the house of Sheela (PW2) at about 01:00 a.m. to 01:30 a.m.

Now, he resides with Sheela (PW2). Since one year, Sheela is

incurring his educational expenses.

20. He has denied all the suggestions put to him during the

course of cross examination including that everything was going

smoothly in their family, appellant / accused was not drinking

liquor, on the contrary, he used to sing devotional songs,

appellant / accused used to mind his own business, mother Umabai

was doing labour work, Satish Bora (DW3) had employed her for

filling water, his mother used to return to house at about 11:00 to

11:30 p.m., he knew nothing about the incident, as he had slept,

he told Sheela (PW2) that mother fell down from third floor and

died while watering the new construction for curing purpose and on

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the say of Sheela (PW2) he deposed that his mother Umabai died

due to beating by appellant / accused, though, in fact, she died by

falling on the ground.

21. Except one omission pertaining to his father's pelting

stones on the door of house of Sheela (PW2), his aforesaid

testimony is consistent one. He has very clearly deposed about the

incident and complicity of the accused in the incident and denied

the defence of the accused that mother Umabai died due to falling

on the ground from third floor while watering the new construction

for curing purpose. It is pertinent to note that, in entire lengthy

cross examination, no suggestion denying the presence of Vikas

(PW3) at spot, when incident took place, was given to him. Since

presence of Vikas (PW3) at the spot when incident took place has

not been denied by appellant / accused, his evidence as to the

incident and complicity of appellant / accused in the incident

inspires full confidence.

22. Vikas (PW3) was 9 to 10 years old child when incident

took place. Under Section 118 of the Indian Evidence Act, 1872, all

persons are competent to testify, unless the Court considers that

they are prevented from understanding the questions put to them,

or from giving rational answers to those question, by tender years,

extreme old age, disease, whether of body or mind, or any other

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cause of the same kind.

23. In the case of Dattu Ramrao Sakhare And Others

Vs. State Of Maharashtra [(1997) 5 Supreme Court Cases

341] the Hon'ble Supreme Court, while dealing with the aspect of

competency and credibility of the testimony of the child witness, in

view of Section 118 of the Indian Evidence Act, 1872, held as

under:-

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record."

24. In the case of Panchhi and Others Vs. State of U.P.

[(1998) 7 Supreme Court Cases 177], the Hon'ble Supreme

Court, as far as evidence of child witness is concerned, has held as

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under :

"It cannot be said that the evidence of a child witness would always stand irretrievable stigmatized. 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 him and thus a child witness is an easy prey to tutoring. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law."

25. From the aforesaid ratio, laid down by the Hon'ble

Supreme Court, it is clear enough that evidence of child witness

must be evaluated more carefully and with greater circumspection

because child is susceptible to tutoring. Besides, he must be

reliable one and his / her demeanour must be like any other

competent witness and there is no likelihood of him being tutored,

and as a rule of prudence, it would be desirable to have the

corroboration to the evidence of child witness from other

dependable evidence.

26. Upon considering the evidence of Vikas (PW3), in the

light of aforesaid principles laid down by the Hon'ble Supreme

Court, it can be gathered very well that Vikas (PW3) is truthful

witness. His evidence is fully reliable and he is not at all tutored

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witness.

27. Record speaks volumes that soon after the incident,

appellant / accused took Vikas (PW3) to the house of Sheela (PW2),

where Vikas (PW3) informed Sheela (PW2) about the incident and

on the basis of information received from appellant / accused and

Vikas (PW3), Sheela (PW2) had lodged the FIR against appellant /

accused. Therefore, absolutely, there was no possibility of tutoring

of Vikas (PW3).

28. The testimony of Sheela (PW2) is relevant to the extent

of conduct of appellant / accused and her lodging FIR on the basis

of information received from appellant / accused and Vikas (PW3).

Vide her deposition at Exhibit-19, she has very clearly deposed that

accused was in the habit of drinking liquor. He used to beat wife

Umabai by suspecting about her character, after drinking liquor. In

her further evidence, she has made it clear that, after the incident,

her father i.e. appellant / accused along with brother Vikas (PW3)

came to her house and informed her about the death of Umabai. At

that time, appellant / accused was under the influence of liquor.

She has specifically deposed that Vikas (PW3) disclosed her that

appellant / accused has beaten Umabai by stick, after suspecting

her character, and therefore, she died. She has also made it clear

in her further evidence that prior to lodging the FIR, she had

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verified the fact of death of mother Umabai by visiting to the spot

i.e. house of the accused.

29. In cross examination, Sheela (PW2) has denied the

suggestions put to her that on the day of incident, since accused

was ill, his mother Umabai was watering the new construction for

curing purposes, and while she was engaged in the activity of

watering new construction, her leg slipped and therefore, she

sustained injuries due to falling on the floor, the accused used to

love all family members, he had searched a good match for her as

well as her sister, he used to invite herself and her sister at his

house at the time of festivals, he used to behave with wife in well

manner and she lodged false FIR at the instance of others.

30. Thus, the aforesaid testimony of Sheela (PW2) not only

inspires confidence about truthful version of Vikas (PW3) pertaining

to the incident, but also throws light on the motive. Sheela (PW2)

and Vikas (PW3) both, in one voice, deposed as to how the

appellant / accused used to harass wife Umabai, mentally and

physically, after suspecting about her character / fidelity. They

both, also in one voice, deposed that appellant / accused was in the

habit of drinking liquor and on the day of incident, he had come to

the house in drunken state, picked up quarrel with wife Umabai out

of suspicion about her character and killed her after beating

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mercilessly by stick. Looking to the very close relationship of

Sheela (PW2) and Vikas (PW3) with appellant / accused, they had

no reason to lodge false FIR and give false statement against the

accused.

31. FIR Exhibit-20 lodged by Sheela (PW2) reveals that

appellant / accused, along with wife Umabai and two sons namely

Akasha and Vikas, used to reside at the construction site of Satish

Bora (DW3), situated at New Adarsh Nagar, Latur. However, from

the deposition of Sheela (PW2) at Exhibit-19, it transpires that at

the time of incident, father of the appellant / accused was also

present with them in their house, where incident took place and the

same also reveals from the testimony of Vikas (PW3). Harping on

the aspect of presence of father and elder son Akash in the house

along with appellant / accused and younger son Vikas, when the

alleged incident took place, Mr. Tandale, vehemently argued that

non examination of father and elder son of the appellant / accused

namely Akash, though available, is fatal lapse on the part of the

prosecution and it gives rise to draw adverse inference.

32. Upon close scrutiny of the testimony of Vikas (PW3), in

the light of aforesaid submissions made by defence counsel, it can

be gathered very well that accused, on the fateful night of

08-07-2013, came home at 10:30 p.m., in drunken state. Soon

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after coming home, he started beating deceased Umabai by

suspecting her character, though, Vikas (PW3), his grandfather and

elder brother Akash insisted appellant / accused not to beat mother

Umabai, in vain. Therefore, grandfather and elder brother Akash

left the house, leaving him alone there. After grandfather and elder

brother Akash left house, Vikas (PW3) again asked appellant /

accused not to beat mother Umabai but appellant / accused not

only continued to beat deceased Umabai, but also gave one blow of

stick to him. According to him, incident of beating mother Umabai

by appellant / accused continued for one to two hours and

ultimately mother Umabai died due to the assault committed by

appellant / accused.

33. When it is clear from the testimony of Vikas (PW3) that

his grandfather and elder brother Akash left house soon after

commencement of the incident of assaulting mother Umabai by

appellant / accused by stick, question of their witnessing further

beating to Umabai by stick, which resulted in her death, does not

arise, since they had not seen the incident in it's entirety including

Umabai's succumbing to death due to assault committed by

appellant / accused, hence, neither clear and cogent testimony of

Vikas (PW3) can be doubted, nor adverse inference about the case

of prosecution, due to non examination of father and elder son of

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appellant / accused, can be drawn.

34. Spot panchanama Exhibit-18, proved in the evidence of

Saddam Abbaskhan Pathan (PW1), demonstrates that incident took

place in a room admeasuring 10 ft. x 10 ft. forming east - south

part of ground floor of three storey building, the construction of

which was not fully completed. Spot panchanama Exhibit-18 also

demonstrates that blood was spread on the floor of the said room

at different places. Besides, broken pieces of bangles, two silver

toe rings and pieces of earthen pot were scattered there. So also,

clothes found lying here and there.

35. Saddam Pathan (PW1), one of the two panch witnesses

of the spot panchanama, has testified the same in his testimony

Exhibit-17. Nothing is brought on record through his cross-

examination, on the basis of which his testimony regarding existing

situation of spot, when spot panchanama was drawn at about 07:15

a.m. on 09-07-2013, can be viewed with suspicion and discarded.

Thus, spot panchanama Exhibit-18 and evidence of Saddam Pathan

(PW1) lends full corroboration to the testimony of Sheela (PW2)

and Vikas (PW3) on the aspect of incident of murderous assault on

deceased Umabai, took place in the house where she used to reside

with husband and sons and not elsewhere in the premises

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belonging to Satish Bora (DW3), where construction of three storey

building was going on.

36. Memorandum of statement of appellant / accused at

Exhibit-34 and recovery panchanama under which crime weapon

viz. 3.5 ft. long solid stick was recovered at the instance of

appellant / accused proved in the evidence of I.O. Rajkumar

Sonawane (PW5), evidences that on 14-07-2013 while in police

custody, in presence of panchas, appellant / accused disclosed him

that the stick has been concealed in a store room situated behind

the room where he used to reside with his family and he would

show the store room and place where stick has been concealed.

Thereafter, he led I.O. Rajkumar Sonawane (PW5), police staff,

panchas to the said store room forming part of three storey

building, being constructed by Satish Bora (DW3) at his plot

situated in New Adarsh Nagar, Latur, pointed out particular place

where the stick was concealed and I.O. Rajkumar Sonawane (PW5)

recovered / seized the same by drawing recovery / seizure

panchanama Exhibit-35.

37. Testimony of I.O. Rajkumar Sonwane (PW5), on this

aspect remained consistent and has not been shaken to any extent.

It is true that nobody from the two panchas of the said discovery

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and recovery under Section 27 of the Evidence Act, has been

examined by the prosecution, but merely for that reason said

discovery and recovery of crime weapon, i.e. solid stick, cannot be

discarded outrightly, when it has been proved in the evidence of its

author i.e. I.O. Rajkumar Sonawane (PW5). Had the appellant /

accused brought on record some material through cross

examination of I.O. Rajkumar Sonawane (PW5), pertaining to

Memorandum Exhibit-34 and recovery panchanama Exhibit-35,

then there would have been scope to discard the discovery and

recovery of crime weapon, i.e. solid stick, for the reason of non

examination of panch witnesses of said discovery and recovery.

Since, no such material is brought on record by appellant / accused,

in our considered view, discovery and recovery of crime weapon,

i.e. 3.5 ft. long solid stick, at the instance of appellant / accused,

can be used for corroboration to the testimony of eye witness Vikas

(PW3).

38. I.O. Rajkumar Sonawane (PW5) in his evidence at

Exhibit-30 categorically deposed as to the manner in which he had

investigated the crime start from his visiting to the spot soon after

registering the FIR lodged by Sheela (PW2), drawing inquest

panchanama (Exhibit-31) of the dead body of Umabai, lying at the

spot, thereafter, drawing spot panchanama (Exhibit-18), then

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collecting blood spread at the spot and articles lying there,

recording statements of witnesses, attaching clothes of deceased

Umabai removed by the autopsy surgeon from her body at the time

of postmortem, under the panchanama at Exhibit-32, seizure of

clothes worn by appellant / accused at the time of incident under

panchanama at Exhibit-33 and sending articles seized from the

spot, crime weapon viz. stick, clothes of deceased Umabai and

accused and viscera, to the Forensic Science Laboratory under

requisition at Exhibit-36 for examination and report and also about

C.A. reports at Exhibits- 37 to 40, received from the said

laboratory.

39. Nothing could be brought on record from his searching

cross examination, on the basis of which his testimony can be

discarded. On the contrary, through the cross examination it has

come on record that the building where incident took place was not

closely surrounded by the houses. Considering the said statement

and the time of incident, it can be firmly said that, incident was not

witnessed by independent witness and when no independent

witness is available, defence cannot claim rejection of evidence of

Vikas (PW3) for want of corroboration by independent witness.

40. Postmortem report Exhibit-25 reveals that at the time of

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postmortem of dead body of Umabai, rigor mortis was well

developed all over the body. As per the medical jurisprudence, it

starts developing in the dead body after about three hours of death

and it spreads all over the body within 12 hours and then passes

away. Having regard to the fact that rigor mortis was fully

developed at about 02.22 p.m. on 09-07-2013 and age of injuries

suffered by deceased Umabai, i.e. 12 hours to 18 hours, came on

record through cross-examination of Dr. Rahul Umbre (PW4),

medical officer, it can be gathered very well that Umabai died due

to assault committed by appellant / accused at about 11:30 p.m. of

08-07-2013 to 12:30 a.m. of 09-07-2013.

41. Once it is clear that Umabai died between 11:30 p.m. of

08-07-2013 to 12:30 a.m. of 09-07-2013 as stated above, the FIR

which came to be lodged by Sheela (PW2) prior to 04:10 a.m.

cannot be said to be lodged belatedly. Since FIR was lodged

without any delay, case made out therein, supported by the

evidence of Vikas (PW3) and evidence of Sheela (PW2), cannot be

discarded.

42. To substantiate his defence, appellant / accused

stepped into witness box and examined two more witnesses, one is

Arjun Bakale (DW2) and another is Satish Bora (DW3). According

to appellant / accused, Satish Bora (DW3) had employed him as a

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watchman at his construction site situated at New Adarsh Nagar,

Latur. In addition to discharging services as a watchman, he used

to pour water on the construction for the purpose of curing. Since

few days prior to the incident, he was suffering from typhoid, he

could not do the activity of curing of new construction. On the day

of incident Satish Bora (DW3) came and asked him as to why he did

not pour water on the new construction for curing purpose. He

replied that, since he was ill his wife Umabai was pouring / spraying

water on parapet floor of third floor. Thereafter, when he went to

third floor, he saw wife Umabai and Satish Bora (DW3) in naked

condition. On seeing him, they both started running away. While

running away leg of Umabai slipped from the stairs and she fell

down.

43. Arjun Bakale (DW2) has denied the entire aforesaid

story narrated by appellant / accused. According to him Umabai

had worked in the cloth shop of Satish Bora (DW3) for some time.

During cross examination Arjun Bakale (DW2) stated that

appellant / accused told him that his wife Umabai was serving in

the cloth shop of Satish Bora (DW3) for some time and he has no

personal information about the same. There is no whisper in the

evidence of Arjun Bakale (DW2) about alleged illicit relationship

between deceased Umabai and Satish Bora (DW3). When Satish

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Bora (DW3) has denied all these allegations and nothing was

transpired on the said aspect to the investigating officer during

investigation of the crime, merely on the say of appellant / accused,

his defence as stated above, cannot be believed and accepted.

44. It is pertinent to note that no suggestions about illicit

relations between Umabai and Satish Bora (DW3), appellant's

witnessing them while indulging in sexual activity, Umabai's running

away from third floor and slipping from the stair of third floor and

suffering injuries, were given to Sheela (PW2) and Vikas (PW3)

during their cross examination.

45. Thus, there is no consistency in the defence, when

Sheela (PW2), Vikas (PW3) and I.O. Rajkumar Sonawane (PW5)

have denied that at the time of incident while watering on third

floor of new construction for curing purposes, Umabai fell down and

suffered the injuries and Satish Bora (DW3) has also very clearly

denied that on the day of incident appellant / accused caught him

red handed while indulging in sexual activity with his wife Umabai

and on seeing him, they both started running away and while

running away Umabai fell down from the stairs. Therefore, from

any angle, defence of the accused cannot be accepted. By

examining Satish Bora (DW3) appellant / accused has indirectly

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supported the case of prosecution on the point of motive i.e. his

suspecting about character of wife Umabai.

46. Thus, having regard to the totality of evidence

discussed above, we have no hesitation to hold that deceased

Umabai died of homicidal death and appellant / accused is

responsible for her death.

47. Mr. Tandale, learned advocate, while harping on the

aspect that all the injuries suffered by Umabai were on non vital

parts and simple in nature, submitted that it is not a case under

Section 302 of I.P.C., but it is a clear case under Section 304 Part-

II of I.P.C.

48. Per contra, learned APP argued that, having regard to

the number and nature of injuries suffered by Umabai and motive

behind the crime, it is clear enough that accused had committed

assault on Umabai with an intention to kill her. Therefore, case

clearly falls within the ambit of Section 302 of I.P.C.

49. In the case of Virsa Singh Vs. State of Punjab [AIR

1958 Supreme Court 465], the Hon'ble Supreme Court while

discussing about applicability of clause 'thirdly' of Section 300 of

I.P.C., held as under :

"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section

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300 "thirdly " ;

First, it must establish, quite objectively, that a bodily injury is present ;

Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly ". It does not matter that there was no intention to cause death. It does not matter that there was no intention to even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."

50. In the case of Phulia Tudu and Another Vs. State of

Bihar (now Jharkhand) [AIR 2007 Supreme Court 3215], the

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Hon'ble Supreme Court has held as under :

"It cannot be said as a rule of universal application that whenever one blow is given s.300, IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. In the instant case admittedly one blow was inflicted by accused with a small stick on deceased and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by S. 304 Part I, IPC and not S. 302."

51. In the case of State of Andhra Pradesh Vs.

Rayavarapu Punnayya and Another [AIR 1977 SUPREME

COURT 45], the Hon'ble Supreme Court has held as under :

" The 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause.

(para 14) Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of causes falling under cl. (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged lever, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be.

(para15) If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.

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(para 15) In Clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause

(b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death.

(para 16) The distinction is fine but real, and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Sec. 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.

(para 16) The word "likely" in clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury .... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

(para 16) For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. AIR 1966 SC1874 and AIR 1958 SC 465. Rel. on.

(para 17) Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. Cl. (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

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(para 20) The expression "bodily injury" in clause 3rdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The 'sufficiency' spoken of in this clause, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under Clause 3rdly of Section 300.

(para 39)"

52. We have carefully verified the facts of the case in the

light of aforesaid ratio laid down by the Hon'ble Supreme Court. In

case at hand, it is clear enough that accused was suspecting

character of his wife and out of that suspicion he used to come

house in drunken state and beat his wife Umabai frequently. On

the day of incident, as usual, at about 10:30 p.m. he came to

house in drunken state and mercilessly beat wife Umabai with a

solid stick. He caused, as many as, 22 injuries on her person with

solid stick held by him. Deceased Umabai died on the spot due to

the said injuries. Autopsy surgeon Dr. Rahul Umbre (PW4) opined

that death of Umabai is possible by multiple injuries all over the

body by stick like muddemal stick. The injuries suffered by

deceased Umabai was the direct cause of her death. No secondary

factor such as gangrene, tetanus, etc. supervened. The aim of

appellant / accused was to smash arms and legs of the deceased

Umabai and he succeeded in it, causing in all 22 injuries including

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fracture of some of the right leg. The stick used by appellant /

accused was solid stick, locally known as Velu stick.

53. Thus, aforesaid injuries, weapon used for inflicting the

said injuries and motive behind the crime, squarely makes out the

case covered by clause 'thirdly' of Section 300 of I.P.C., as

discussed by the Hon'ble Supreme Court in aforesaid rulings.

Therefore, question of converting the case to Section 304 Part II

from Section 302 does not arise.

54. Learned Additional Sessions Judge, Latur, rightly held

the appellant / accused guilty for the offence punishable under

Section 302 of I.P.C. and accordingly sentenced him to suffer life

imprisonment and fine as stated above. Therefore, no inference

therein is called for. Accordingly, appeal is dismissed.

55. This Court had appointed learned Counsel

Mr M.A. Tandale through the High Court Legal Services Authority,

Sub-committee, Aurangabad to represent the appellant in this case.

We are, therefore, quantifying his fees at Rs.15,000/- (Rs. Fifteen

Thousand Only) to be paid by the High Court Legal Services

Authority, Sub-committee, Aurangabad.

(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)

SVH

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