Bombay High Court
Kailash S/O Vithal Waghmare vs The State Of Maharashtra on 4 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:25221-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 614 OF 2018
Kailash S/o. Vithal Waghmare,
Age : 33 years, Occu. Labour,
R/o. Ekamba, Tq. Himayatnagar,
Dist. Nanded. ... Appellant
Versus
The State of Maharashtra ... Respondent
...
Mr. Gajanan G. Kadam, Advocate for Appellant.
Mr. A. M. Phule, APP for Respondent - State.
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 08th NOVEMBER, 2023
PRONOUNCED ON : 04th DECEMBER, 2023
JUDGMENT (PER ABHAY S. WAGHWASE, J.) :
1. Vide above appeal, convict Kailas Waghmare is
assailing the judgment and order of conviction dated 26.10.2016
passed by the learned Additional Sessions Judge, Bhokar, District
Nanded in Sessions Case No.38 of 2014, holding appellant guilty
for offence punishable under section 302 of Indian Penal Code
(IPC) and thereby sentencing him to suffer imprisonment for life
and to pay fine.
FACTUAL MATRIX
2. Convict - appellant returned home and demanded food
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from deceased wife. That time, PW8 Roshan, their child was
present in the house. Deceased suggested appellant convict to eat
food prepared in the morning, but assured to prepare fresh food
after sometime. Appellant got enraged, went to another room, only
to return with the axe. Initially, he gave blow with the handle of
the axe on her back and thereafter gave blow on the back side of
ear of his wife. She collapsed. Appellant took his son PW8 Roshan
and attended police station and gave information. The
Investigating Officer got the information verified by sending PW4
Bhimrao to the spot. He returned and gave FIR on behalf of State.
On the basis of which, crime was registered and subsequently
investigated and accused was duly charge-sheeted.
Learned Additional Sessions Judge, Bhokar, who,
conducted the trial, appreciated the evidence adduced by the
prosecution and held the charges proved and convicted appellant
to suffer life imprisonment for the offence punishable under
section 302 of IPC, which is now precisely assailed by filing instant
appeal.
SUBMISSIONS
On behalf of appellant :
3. Learned counsel for appellant would point out that
apparently implication is false. According to him, prosecution
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claims that accused himself gave confession. That, if it so when
accused himself allegedly went to police station and reported about
cognizable offence, police machinery ought to have recorded FIR,
but, such steps were not taken and rather PW4 Bhimrao was sent
to verify and thereafter FIR has been lodged and so there is every
possibility of false and concocted story set up by prosecution. He
further pointed out that, even otherwise, FIR is lodged after delay.
He further questioned the story of prosecution by submitting that
there is no independent eye witness account, except testimony of
child witness, who admittedly was in the custody of maternal
uncle, and therefore, he was a tutored witness. That, there is no
independent corroboration to the testimony of child witness, and
therefore, it is his submission that law does not permit accepting
and relying testimony of child witness in absence of corroboration.
He further submitted that even statement of child is not recorded
in spite of the child to be present and available in the police station
for the entire night. There is no explanation for not recording his
statement. He further submitted that there was no motive and the
same has not been established by prosecution. He further pointed
out that it is the case of prosecution that PW4 Bhimrao went and
broke the lock, but no distinct panchanama was recorded to that
extent. Even no neighbour has been examined by prosecution, but
still with such weak evidence on record, it is his submission that,
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learned trial Judge has accepted prosecution version and further
recorded guilt. According to him, there is improper appreciation of
available evidence as well as settled legal position while
appreciating child witness account and hence according to him,
findings reached at by learned trial Judge cannot be said to be
legally sound and he prays for allowing the appeal.
On behalf of State :
4. While opposing above submissions, learned APP would
submit that there is direct eye witness account of none other than
child whose presence in the house has not been doubted. He would
submit that, the child had seen the occurrence and has duly
narrated the same in the witness box. The child has named his
own father because right in front of him his mother was assaulted.
Learned APP invited our attention to the cross faced by the child
and would submit that the child withstood the entire cross
including denying suggestion of being tutored. That, the child
categorically stated about blow given by his father on the ear of his
mother and medical evidence corroborates the same. Finding the
evidence of child witness trustworthy, learned trial Judge has
committed no error in accepting the case of prosecution. Thus,
according to learned APP, there is no merit in the appeal and he
consequently prays to dismiss the appeal.
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5. In the light of above submissions, we proceed to re-
appreciate, re-analyze and re-examine the entire evidence as is
required while invoking section 374 of Cr.P.C.. On doing so, we
have noticed that, in support of its case prosecution has examined
as many as 10 witnesses.
PW1 Prayagbai, mother of accused; PW2 Rangrao is the
neighbour of accused; PW3 Kailash, pancha to spot panchanama;
PW4 Bhimrao, a police head constable and informant; PW5
Ramdas, pancha to seizure of clothes of deceased and accused;
PW6 Dr. Smita Pedgaonkar is the autopsy doctor, who conducted
post mortem and issued P.M. report; PW7 Dhammapal is the
photographer; PW8 Roshan, very child of accused and deceased,
who was present in the house at the time of incident and he too had
deposed to that extent; PW9 Dy.S.P. Kamble is the Investigating
Officer and PW10 Madhukar, PSO who recorded the FIR and took
entry in police station diary.
ANALYSIS
6. In our opinion, here there is crucial evidence of very
child of accused and deceased. It is not at all disputed that accused
himself approached police station along with child and gave
information. There is nothing wrong, in our opinion, on the part of
police to get the information checked and verified through PW4
Bhimrao.
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7. As stated above, evidence of child witness assumes
importance as the child was very much available in the house
when the alleged incident took place. His evidence is seriously
challenged before us on two counts that, it is the testimony of a
child witness, who is susceptible to tutoring and secondly there is
no independent corroboration which law requires while accepting
child testimony.
Resultantly, we turn to his evidence first. He is
examined at Exh.30 in the capacity of PW8 Roshan. It transpires
that the learned trial court has got itself satisfied about the
capacity of the child to depose i.e. by posing preliminary questions
to child witness. Answers given by him goes to show that he was
capable for giving evidence.
Child seems to be 10 years old and was undertaking
education at relevant time. He deposed that, currently he is
residing with his uncle. He has two sisters and one of his sister was
put up in residential hostel, whereas, other sister was residing with
his uncle and currently he also joined her and they are all residing
with uncle Deepak.
In paragraph 2, he has deposed about the occurrence by
stating that, he was in 3rd standard at the time of incident, which
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took place on 20.08.2014 at 20:30 hours. He claims to be in the
house. According to him, his father came, asked his mother to
prepare food for dinner. According to him, his mother informed
accused to eat the food which was prepared in the morning and
that later she would prepare fresh food. Child stated that this
angered his father, who went inside, brought axe, tried to latch the
door and while his mother was resisting, he assaulted her by
means of handle of axe on her back and while she bend, her father
assaulted her with axe behind the ear and then he kept the axe on
the body of his mother. Blood was oozing. Then he pulled the saree
on her face, came out of the house, locked the door and took the
child to Himayatnagar police station and on the way also informed
him that his mother is dead. He further deposed that his father
said that there is no one to look after him and he told the child to
disclose that deceased killed herself. His father took him to police
station and informed that deceased had committed suicide. He
further stated that, he slept in the police station for the entire
night. In the morning, his uncle came and took him. He identified
the axe as well as clothes on the person of deceased.
8. In cross he admitted that since the date of incident, he
is residing with his uncle Deepak, who has a brother, namely
Kiran. That, prior to the incident, his mother was meeting his
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uncle. He is unable to state whether any crime was registered
against his uncle, but he admitted that he was visiting uncle's
house with his mother and even used to stay their. He stated that
his sisters were also residing at the house of uncle as there were
cordial relations between them. He admitted that his uncle treated
him with love and affection and took him for outing. He admitted
that uncle Deepak accompanied him when his statement was
recorded under section 164 of Cr.P.C. and that police were also
present when his statement was recorded under section 164 of
Cr.P.C.. Further admitted that his uncle visited hospital on the day
of incident. He is unable to state whether police summoned his
uncle and recorded any information given by accused. He
answered and admitted that he did not state to the police about his
father directed him to disclose.
In para 6 following omissions are brought in the
testimony of above child witness :-
(i) That, accused assaulted with handle of axe on the back
of deceased.
(ii) That, accused went inside the house and brought axe.
(iii) Accused tried to latch the door from the inside and his
mother resisted the same.
(iv) Accused informed him that deceased committed
suicide.
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(v) That, he was sleeping at the police station and that in
the morning his uncle came and fetched him.
He admitted that there use to be quarrel between his
parents. Rest are all denial.
9. On critical evaluation of child witness account, we have
noticed that, he was studying in 3rd standard. In spite of extensive
and lengthy cross, his presence in the house has not been rendered
doubtful. Even the occurrence narrated by the child about father
entering the house, seeking food, his mother suggesting his father
to eat the food prepared in the morning and that later on she would
prepare food and he getting annoyed and going inside the house
and returning with the axe has remained absolutely unchallenged.
No doubt, omissions are brought, but in our opinion,
they are not material because actual overt act of use of axe handle
on the back first and subsequent blow behind the ear has remained
intact. The omissions enumerated in para 6 in aforesaid para not
being touching the actual occurrence, are trifle in nature and so
can be easily ignored.
10. In our opinion, considering the tender age of the child,
there are bound to be such omissions. The crucial aspect of assault
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with the axe near the ear has also remained intact. At this point,
we wish to also note that, the body part named by the child for
being targeted by his father with the axe finds corroboration from
autopsy doctor, who has noted injury no.1 on such part. Therefore,
eye witness account is finding support from medical account also.
11. As regards to criticism regarding child witness
testimony to be unworthy of credence, there are series of landmark
cases, wherein it has been held that, child witness account can be
relied and conviction too can be based, provided the testimony is
found to be truthful and untutored. True it is that, there is note of
caution that child witness account needs to be carefully
appreciated and should not be directly relied unless there is other
corroborating or incriminating material also. If the child witness
account inspires confidence, the same can be acted upon. Law to
this extent has been propounded in following judgments and the
ratio laid down therein is also reproduced hereunder :-
In Mangoo and another v. State of Madhya Pradesh;
AIR 1995 SC 959, the Hon'ble Apex Court while dealing with the
evidence of a child witness observed that;
"There was always scope to tutor the child, however, it
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cannot alone be a ground to come to the conclusion that the
child witness must have been tutored. The Court must
determine as to whether the child has been tutored or not. It
can be ascertained by examining the evidence and from the
contents thereof as to whether there are any traces of
tutoring."
In the case of Dattu Ramrao Sakhare v. State of
Maharashtra; 1997 (5) SCC 341, Hon'ble Apex Court held that;
"A child witness if found competent to depose to the facts
and reliable on 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 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."
In Ratansinh Dalsukhabhai Nayak v. State of Gujarat;
(2004) 1 SCC 64, the Hon'ble Apex Court held that;
"Child witness - evidence of - conviction on the basis of -
held, permissible if such witness is found to be competent to
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testify and the court after careful scrutiny of its evidence is
convinced about the quality and reliability of the same."
The Hon'ble Apex Court in the case of Gagan Kanojia
and another v. State of Punjab; (2006) 13 SCC 516 has ruled that,
"Part of statement of child witness, even if tutored, can be
relied upon, if the tutored part can be separated from the
untutored part, in case such remaining untutored part
inspires confidence."
In Nivrutti Pandurang Kokate and ors. v. State of
Maharashtra; AIR 2008 SC 1460, the Hon'ble Court dealing with
the child witness has observed as under;
"The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
intelligence, and the said Judge may resort to any
examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation of
an oath. The decision of the trial court may, however, be
disturbed by the higher court if from what is preserved in the
records, it is clear that his conclusion was erroneous. This
precaution is necessary because child witnesses are amenable
to tutoring and often live in a world of make-believe. Though
it is an established principle that child witnesses are
dangerous witnesses as they are pliable and liable to be
influenced easily, shaped and moulded, but it is also an
accepted norm that if after careful scrutiny of their evidence
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the court comes to the conclusion that there is an impress of
truth in it, there is no obstacle in the way of accepting the
evidence of a child witness."
In a celebrated case of Hari Om v. State of U.P.; (2021)
4 SCC 345, very recently the Hon'ble Apex Court, in para 22 of this
judgment, has spelt out legal principles, summarized the
evidentiary value of child witness, effects of its discrepancies, and
duty of court and corroboration when to be insisted upon, which we
borrow and quote here:
"22. The evidence of the child witness cannot be rejected
per se, but the court, as a rule of prudence, is require 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. If the child witness 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 particulars, 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
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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. The evidence of the 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 an easy prey to tutoring. The evidence of
the child witness must find adequate corroboration before it
is relied upon, as the rule of corroboration is of practical
wisdom than of law."
12. Learned counsel also tried to submit that, child did not
speak of other several blows on the dead body of deceased, but
autopsy doctor has noted 6 injuries over the dead body. We
discard such submission as it is to be borne in mind that the child
witness was barely studying in third standard. He has
unfortunately witnessed assault with deadly weapon on his mother
by his father and child of tender age must be awestruck and
spellbound on seeing the assault. He is not expected to count the
number of blows or to reproduce the number of blows while
deposing in a witness box. We have already found that the injury
which turned out to be fatal was an injury caused behind the ear,
the child spoke about assault on ear part. Therefore, we do not find
any force in the above submission.
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It is pertinent to note that child has flatly denied the
suggestion that he has been tutored. Mere accompaniment of uncle
to visit court for recording statement under section 164 of Cr.P.C.
is not good ground or submission to hold that the child was tutored.
Learned Magistrate might have taken due care while recording
statement of the child. Therefore, even for above reasons,
testimony of the child need not be discredited. On the contrary, we
too are convinced that it is worth of credence as it is not a product
of tutoring.
13. As required by law, let us see whether there is other
corroboration to the testimony of child. Here, it is pertinent to note
that there is no dispute that accused himself took the child to the
police station and passed the information which was got verified
through PW4 Bhimrao, who came and lodge report. The occurrence
has taken place in the house is not refuted. Deceased wife met fatal
injuries in the house. There is no other defence raised by appellant
in the trial court nor any plea of alibi has been taken recourse to.
14. Under such circumstances, he being custodian of his
wife and his own child confirming his presence, he has to offer an
explanation for the fatal injuries suffered by his wife in his house.
Except denial in section 313 of Cr.P.C. there is no explanation.
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Therefore, here, his conduct of himself visiting police station and
passing information and secondly failing to offer explanation for
the unnatural death of his wife, provisions under section 8 as well
as section 106 of Indian Evidence Act both come into play.
15. Therefore, there are strong incriminating
circumstances coupled with child witness testimony confirming the
culpability of appellant.
16. We have examined the impugned judgment under
challenged. In our opinion, learned trial Court has appreciated the
evidence, more importantly that of a child witness and has
committed no error in accepting the child testimony and other
circumstances sufficient to record the guilt. No perversity is
brought to our notice in the appeal in the manner of appreciation
and so we refrain from interfering in the judgment. Hence, findings
no merits in the appeal, we proceed to pass following order :-
ORDER
The criminal appeal stands dismissed.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
Signed by: Manoj Tandale
Designation: PA To Honourable Judge
Date: 04/12/2023 14:54:44
