High Court
Legal Reasoning
APEAL-130-22.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 130 OF 2022Bhura Kautik JogiAge: 48 years, Occu.: Driver,R/o Eklagna, Tq. Dharangaon, Dist. JalgaonAt present R/o Dagadi Subgavhan,Tq. Parola, Dist. Jalgaon..APPELLANTVERSUSState of Maharashtra..RESPONDENT....Mrs. S.G. Chincholkar, Advocate for appellantMr. S.V. Hange, A.P.P. for respondent - State.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJDATE : 28th AUGUST, 2024ORAL JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The present appellant was convicted for committing murder of hiswife, and therefore, sentenced to suffer imprisonment for life and pay a fineof Rs.5,000/-, in default to undergo rigorous imprisonment for three years.The order of conviction and consequential sentence has been passed by theCourt of Additional Sessions Judge, Amalner (‘trial Court’) on 09th February,2016 in Sessions Case, No. 32 of 2013. The appellant is, therefore, beforeus in this appeal.2.The facts giving rise to the present appeal are as follows :-The appellant alongwith his wife – Akkabai (deceased) and theirson (master Vijay) would reside together at village Dagadi Subgavhan, Tq.1 / 11 APEAL-130-22.odtParola, Dist. Jalgaon. The incident took place on 2nd May, 2013 by 10:30p.m. The appellant made a demand of money to his wife for consumption ofliquor. She refused. He, therefore, went out of the house and returned witha stone (7/8 kgs.). He assaulted on her head with the said stone and fled.The incident was witnessed by their son, master Vijay (PW 4). Heimmediately rushed to the house of his maternal uncle, PW 1 – Sopan andrelated him the incident. Sopan, alongwith others rushed to the house of theappellant. They noticed Akkabai (deceased) to have suffered severe headinjury. She was, therefore, immediately rushed to Civil Hospital, Parola.However, she died before admission. PW 1 – Sopan thereafter immediatelylodged the F.I.R. (Exh.14) against the appellant.3.Based on the F.I.R. (Exh.14), crime vide C.R. No. 77 of 2013came to be registered against the appellant. Crime scene panchanama(Exh.21) was drawn. Inquest (Exh.16) and autopsy (Exh.30) on the mortalremains of the deceased were held. A stone was seized from the crimescene. The appellant was arrested. Statements of the persons acquaintedwith the facts and circumstances of the case were recorded. Uponcompletion of investigation, charge-sheet was filed.4.The trial Court framed the charge (Exh.7). The appellant pleadednot guilty. His defence was of false implication. According to him, he wasout of the village since 2-3 days before the incident. Someone elsecommitted murder of his wife.2 / 11
Legal Reasoning
APEAL-130-22.odt5.The prosecution, to bring home the charge, examined fivewitnesses and produced in evidence certain documents. The trial Court, onappreciation of the same, convicted the appellant and consequentlysentenced as stated above.6.Learned counsel for the appellant would submit that the case isbased on the sole eye witness account. The said witness is none other thanson of the appellant, PW 4 – master Vijay. He was just seven years of age atthe relevant time. He, being an child witness, was prone to tutoring.According to her, he was under the influence of his maternal uncle – Sopan.She relied on the judgment of the Apex Court in case of Pradeep Vs. TheState of Haryana, AIR 2023 SC 3245, to submit that to ascertaincompetency of a child witness, the trial Court needs to put certain questionsto such a witness. The record thereof has to be made wherefrom only itcould be ascertained whether the child was a competent witness. She thenadverted our attention to Section 4 of the Oaths Act, 1969. She would furthersubmit that there was inconsistency between the evidence of PW1 – Sopan,who contended that he was asleep by 10:30 p.m. on the fateful day, whilePW 5 – Bhaiyya testified that he was talking with Sopan at his (Sopan)residence. According to her, the investigating officer has not been examined.The same has caused material prejudice to the appellant in his defence.She, therefore, urged for allowing the appeal.7.Learned A.P.P. would, on the other hand, submit that PW 4 –master Vijay was of seven years old at the relevant time. He had no reason3 / 11 APEAL-130-22.odtto speak against his own father. The time of incident was such by which itwas but natural for the child to have been at his residence. The appellant didnot make out his defence of alibi. A minor inconsistency between theevidence of the prosecution witnesses which do not go to the root of the caseneed to be ignored. According to him, witnesses gave evidence after twoyears of the incident. Memory of a person may not serve him well, withpassage of time. Learned A.P.P. read out the impugned judgment toultimately submit that there is no reason to interfere therewith.8.Considered the submissions advanced. Perused the evidence onrecord and the judgment impugned herein. Let us now advert thereto andappreciate the same.9.Exhibit 30 is the postmortem report. The same has been admittedby the appellant in no uncertain terms. The cause of death of Akkabai, wifeof the appellant, was cardiopulmonary arrest due to hypovolumic shock dueto haemorrhage from head injury.10.The criminal law was set in motion against the appellant by noneother than his real brother-in-law, PW 1 – Sopan, within hours of the incident.It is in his evidence that on 02nd May, 2013 he was at his residence. It was10:30 p.m. His nephew, PW 4 – master Vijay came to his residence andrelated him, “ek>s vkbZyk ek>s oMhykauh MksD;kr nxM Vkdwu t[keh dsys vlwu vkbZpsMksD;krwu jDr fu?kr vkgs- rjh rqEgh yodj pyk”. He, therefore, alongwith Kantilal,4 / 11 APEAL-130-22.odtSahebrao, Bhaiyya, Bhaidas went to the house of the appellant. He saw hissister lying in the court yard. She had suffered a head injury. A stone ofabout 7/8 kgs. was found by her side. The appellant was not there. He tiedher head with a cloth piece and took her to Civil Hospital, Parola. Themedical officer there declared her dead. He then went to the police stationand lodged the report (Exh.14) against the appellant.11.It was suggested to him in his cross-examination that theappellant was not at his residence. He denied. It was further suggested tohim that the appellant had left the village 3-4 days before the incident forwork. The same too has been denied. It was further suggested to him thathe owed a sum of Rs.5,000/- to the appellant. To avoid repayment of thesame, he registered the false report. Same too was denied by him.12.PW 2 – Nana is a witness to the inquest panchanama (Exh.16).While PW 3 – Gopichand is a witness to the crime scene panchanama(Exh.21). It is in his evidence that police seized quilt and stone from thecrime scene.13.PW 5 – Bhaiyya was the one, who accompanied PW 1 – Sopanto the house of the appellant. It is in his evidence that he was present at thehouse of Sopan while the appellant’s son (Vijay) had come to relate themabout the incident.5 / 11 APEAL-130-22.odt14.All these witnesses were subjected to a searching cross-examination. It was brought on record that there was a marriage ceremonyin the village. Participants therein were drunk and dancing to music.15.The only eye witness in this case is PW 4 – master Vijay. He wasseven years of age at the relevant time. It is in his evidence that on the givenday he was at his residence. There was quarrel between his parents. Hefurther testified that the appellant would ask his mother to pay him money forconsumption of liquor. On the given day the appellant abused his motherand demanded money for liquor. The mother denied. The appellant thenwent out of the house. He (PW 4 – Vijay) was present in the court yard ofthe house. He thought that father has gone out for peeing (urinating). It isfurther in his evidence that his father (appellant) returned with a stone andassaulted on the head of his mother therewith. He immediately rushed to thehouse of his maternal uncle, PW 1 – Sopan. Sopan accompanied him backto his residence. His mother was taken to Civil Hospital, Parola fortreatment. On the following day he realised his mother to have passed away.16.It is in his cross-examination that he would leave his residence at06:00 in the morning. He would beg to earn living. He admitted thatsomeone in the village would provide him meal. Even sometime he tookmeal at the house of his maternal uncle, PW 1 – Sopan. He was, howevercategorical to state that he never left his house in the evening. He deniedthat at the relevant time he was at the house of his maternal uncle and slept6 / 11 APEAL-130-22.odtthere. He also denied that there was quarrel between his father and hismaternal uncle – Sopan. It was suggested to him that his maternal uncledisclosed to police about the incident and police recorded his statement. Headmitted the same. He admitted that there was marriage ceremony in thevillage on the given day. On that day some of the villagers had consumedliquor and dancing was on. He, however denied that his father was not at thehouse while the incident took place. He denied to have given false evidenceat the behest of his maternal uncle – Sopan. He, however admitted that hegave statement on say of his maternal uncle.17.Appreciation of the aforesaid evidence would indicate that PW 4 –Vijay, son of the appellant, was seven years of age at the relevant time. Hewould never leave his house in the evening. The incident took place by10:30 p.m. It was but natural for him to be at his residence. The trial Courtbefore recording his evidence put certain questions to him to find him to bematured to understand sanctity of oath. True, the trial Court has not maderecord of the questions put to him and his answers thereto. It needs nomention that factual observations are presumed to be correct. The questionswere put to him in open Court in the presence of defence advocate. The trialCourt was satisfied itself that PW 4 – Vijay was competent to depose. True,considering age of master Vijay, being nine years at the time of recording ofthe evidence, the trial Court ought not to have administered him oath.18.What has been observed in the judgment in the case of Pradeep(supra) is that :-7 / 11 APEAL-130-22.odt“7. We have carefully considered the submissions. The fate of the casedepends on the testimony of the minor witness Ajay (PW-1). UnderSection 118 of the Evidence Act, 1872 (for short, "the Evidence Act"), achild witness is competent to depose unless the Court considers that heis prevented from understanding the questions put to him, or fromgiving rational answers by the reason of his tender age. As regards theadministration of oath to a child witness, Section 4 of the Oaths Act,1969 (for short "Oaths Act") is relevant. Section 4 reads thus:4. Oaths or affirmations to be made by witnesses, interpretersand jurors.-(1) Oaths or affirmations shall be made by the followingpersons, namely:(a) all witnesses, that is to say, all persons who may lawfully beexamined, or give, or be required to give, evidence by or beforeany court or person having by law or consent of parties authorityto examine such persons or to receive evidence;(b) interpreters of questions put to, and evidence given by,witnesses; and(c) jurors:Provided that where the witness is a child under twelve years ofage, and the court or person having authority to examine suchwitness is of opinion that, though the witness understands theduty of speaking the truth, he does not understand the nature ofan oath or affirmation, the foregoing provisions of this Sectionand the provisions of Section 5 shall not apply to such witness;but in any such case the absence of an oath or affirmation shallnot render inadmissible any evidence given by such witness noraffect the obligation of the witness to state the truth.(2)..........................Under the proviso to Sub-section (1) of Section 4, it is laid down that incase of a child witness under 12 years of age, unless satisfaction asrequired by the said proviso is recorded, an oath cannot beadministered to the child witness. In this case, in the deposition of PW-1Ajay, it is mentioned that his age was 12 years at the time of therecording of evidence. Therefore, the proviso to Section 4 of the OathsAct will not apply in this case. However, in view of the requirement ofSection 118 of the Evidence Act, the learned Trial Judge was under aduty to record his opinion that the child is able to understand thequestions put to him and that he is able to give rational answers to the8 / 11 APEAL-130-22.odtquestions put to him. The Trial Judge must also record his opinion thatthe child witness understands the duty of speaking the truth and statewhy he is of the opinion that the child understands the duty of speakingthe truth.”19.It is true that a child witness is suspectible to tutoring. The sameitself is not a ground to reject the evidence of a child witness. A carefulscrutiny of a child witness is a must. It has been observed in paragraph no.9in the judgment of Pradeep (supra) as under :-“9. Before recording evidence of a minor, it is the duty of a JudicialOfficer to ask preliminary questions to him with a view to ascertainwhether the minor can understand the questions put to him and is in aposition to give rational answers. The Judge must be satisfied that theminor is able to understand the questions and respond to them andunderstands the importance of speaking the truth. Therefore, the role ofthe Judge who records the evidence is very crucial. He has to make aproper preliminary examination of the minor by putting appropriatequestions to ascertain whether the minor is capable of understandingthe questions put to him and is able to give rational answers. It isadvisable to record the preliminary questions and answers so that theAppellate Court can go into the correctness of the opinion of the TrialCourt.”20.It has been specifically observed that it was advisable to recordpreliminary questions and answers thereof so that the appellate Court cancome to the correctness of the order of the trial Court. On the facts andcircumstances of the case before it, the Apex Court found the preliminaryexamination of the minor was very sketchy. In paragraph no.11 of itsjudgment, the deposition of the child witness in that case was referred to.The child witness was confronted with his statement wherein he had notstated the accused was drunk while he had testified before the Court9 / 11 APEAL-130-22.odtcontrary to his police statement. According to the prosecution case, until05:00 a.m. the child witness in the said case was hiding in his house andonly when the milkman came at 05:00 a.m., he disclosed him the incident. Inthe facts and circumstances of the said case and on appreciation of theevidence therein the Hon’ble Apex Court had allowed the appeal.21.In the case in hand, PW 4 – master Vijay admitted that hismaternal uncle disclosed to police about the incident. His entireexamination-in-chief undoubtedly indicates that he was home at the relevanttime. His father (appellant) too was there. The appellant made a demand ofmoney for consumption of liquor. Since the mother refused, he went out ofthe house and returned with a big stone. He assaulted on her headtherewith. During his cross-examination, his entire evidence was tried to bedenied. PW 4 – master Vijay stood the ground except the aforesaid strayadmission. It is reiterated that nothing has been brought on record tosuggest Vijay to have any animosity to speak against his own father or wastutored to depose against him. When financial position of appellant wasweak, it was suggested that his brother-in-law owe appellant Rs.5,000/- andto have not been repaid, a false F.I.R. was lodged. The suggestion itself isunreliable.22.Moreover, in case of Rameshwar s/o Kalyan Singh Vs. TheState of Rajasthan, AIR 1952 SC 54, it has been observed thus :-“19. …..The rule, which according to the cases has hardened into one oflaw, is not that corroboration is essential before there can be a10 / 11 APEAL-130-22.odtconviction but that the necessity of corroboration, as a matter ofprudence, except where the circumstances make it safe to dispense withit, must be present to the mind of the judge, and in jury cases, must findplace in the charge, before a conviction without corroboration can besustained. The tender years of the child, coupled with othercircumstances appearing in the case, such, for example, as itsdemeanour, unlikelihood of tutoring and so forth, may rendercorroboration unnecessary but that is a question of fact in every case.The only rule of law is that this rule of prudence must be present to themind and be understood and appreciated by him or them. There is norule of practice that there must, in every case, be corroboration before aconviction can be allowed to stand.”23.At the cost of repetition, the trial Court found PW 4 – master Vijayto be a competent witness. His presence at his house was natural. Hisconduct to rush to his maternal uncle’s house, PW 1 – Sopan and relate himthe incident is relevant under Section 6 of the Evidence Act. He being aneye witness to the incident, has no reason to falsely implicate his own fatherin the crime in question. We find the trial Court to have rightly convicted andconsequently sentenced the appellant for the offence of murder. The appealis sans merit. Same deserves to be dismissed.24.In the result, criminal appeal stands dismissed.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD11 / 11