A husband's murder conviction for fatally assaulting his wife was upheld. The court accepted the sole child eyewitness's testimony despite the absence of preliminary competency questions and rejected reduction of the offence to culpable homicide. The appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
cria443.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.443 OF 2013
Baban s/o Padavi Pawara,
Age-37 years, Occu:Labour,
R/o-Boradi, Tq-Shirur,
Dist-Dhule.
...APPELLANT
VERSUS
The State of Maharashtra,
Through P.S.O. Police Station,
Shirpur, Tq-Shirpur,
Dist-Dhule.
...RESPONDENT
...
Mr.P.P. Khandagale Patil Advocate appointed
for Appellant.
Mr.Y.G. Gujrathi, A.P.P. for Respondent.
CORAM: S.S. SHINDE AND
V.K. JADHAV, JJ.
DATE OF RESERVING JUDGMENT : 24TH JULY, 2018
DATE OF PRONOUNCING JUDGMENT: 27TH JULY, 2018
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
cria443.13
2
Judgment and order dated 7th September, 2013,
passed by the Additional Sessions Judge, Dhule in
Sessions Case No.76 of 2012, thereby convicting
the accused/Appellant - Baban Padavi Pawara for
the offence punishable under Section 302 of the
Indian Penal Code (for short "I.P. Code") and
sentencing him to suffer rigorous imprisonment for
life and to pay fine of Rs.2,000/- (Rupees Two
Thousand), and in default of payment of fine, to
suffer simple imprisonment for four months.
2.The prosecution case, in brief, is as
under:
A)The incident has occurred on 31st
December, 2011, at about 10.00 p.m. to 11.00 p.m.
in the house of the accused, situated in Shashtri
Nagar, Boradi, Tq-Shirpur. The accused is the
husband of deceased Kavita. The accused was
residing with his wife in the house. Arti is the
daughter of accused, who was also residing along
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3
with accused. Eight to ten days prior to the
incident, the accused went at Nandurbar for doing
mason work. However, he accused came back at his
house on Friday at about 3.00 p.m., under the
influence of alcohol. During the night hours, the
accused had demanded money from his wife for
consuming liquor, but she refused to give money.
On that count, there was a quarrel between the
accused and his wife. The accused started beating
his wife by means of stick, due to which his wife
has sustained injury on her back, stomach and
head. Arti, who is the daughter of the deceased,
had seen the alleged incident in the house. The
accused has caused injury to his wife by means of
stick, due to which his wife died in the house
itself. The accused had given threats to Arti to
kill her. The accused has locked the door of the
house from inside. The accused and his daughter
Arti were in the house during the night time. On
the next day, during morning hours, the accused
went outside the house by saying to Arti that he
cria443.13
4
is going for nature's call. But thereafter the
accused did not come in the house.
B)At about 5.30 a.m., the maternal uncle of
Arti, namely Manohar Pawara came in the house. He
has made inquiry with Arti about the incident, on
which Arti has disclosed the said incident to him.
On the same day, Manohar Pawara lodged report
about the incident against the accused.
C)On the report of the informant, Crime
No.1 of 2012 punishable under Section 302 of the
I.P. Code came to be registered against the
accused. The inquest panchnama over the dead body
of Kavita has been prepared in the presence of
panchas. The clothes of the deceased has been
seized under panchnama in the presence of panchas.
The spot panchnama of the offence has been
prepared in the presence of panchas by the
concerned investigating officer. The stick used in
the offence by the accused was lying on the spot.
cria443.13
5
The concerned investigating officer has seized the
said stick by preparing spot panchnama. The said
stick has been deposited in the concerned police
station by obtaining muddemal receipt to that
effect. On the same day, the clothes of the
deceased have also been deposited in the concerned
police station by obtaining its receipt.
D)The medical officer has carried out the
post-mortem examination over the dead body of
Kavita. The accused was arrested on 2nd January,
2012, at about 5.20 p.m. in the alleged crime. On
4th March, 2012, the concerned investigating
officer has shown the said stick used in the
offence by the accused to medical officer. The
medical officer has given his opinion that
injuries caused to the deceased could be possible
by means of the said stick and accordingly medical
officer has given his opinion by issuing a letter
to that effect. The statements of the witnesses
have been recorded by the concerned investigating
cria443.13
6
officer. After completion of investigation, the
charge-sheet came to be filed against the accused.
In due course, the case was committed to the Court
of Sessions.
E)A charge for the offence punishable under
Section 302 of the I.P. Code was framed against
the accused and the same was explained to him.
Accused pleaded not guilty and claimed to be
tried, with the defence of total denial.
3.After recording the evidence and
conducting full fledged trial, the trial Court
convicted the accused for the offence punishable
under Section 302 of the I.P. Code and sentenced
him to suffer rigorous imprisonment for life and
to pay a fine, as afore-stated. Hence this Appeal
by the accused.
4.Heard learned counsel appearing for the
Appellant and learned A.P.P. appearing for the
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7
State, at length. Learned counsel appearing for
the Appellant, in support of his submissions,
placed reliance upon the exposition of law in the
case of K. Venkateshwarlu vs. State of A.P.1, and
in the case of Manisha w/o Ravindra Humbe and
another vs. the State of Maharashtra2. With the
able assistance of learned counsel appearing for
the parties, we have carefully perused the entire
notes of evidence, so as to find out whether the
findings recorded by the trial Court are in
consonance with the evidence brought on record or
otherwise.
5.The prosecution has examined in all five
witnesses. PW-1 Manohar Guljar Pawar, is the
informant. PW-2 Aapsing Tedshya Pawara is a panch
to the spot panchnama (Exhibit-17). PW-3 Arti
Baban Pawara is the daughter of the deceased, who
was about 10 to 11 years old at the time of
incident, and who has witnessed the whole
1A.I.R. 2012 S.C. 2955
2 2017 ALL M.R.(Cri) 1215
cria443.13
8
incident. PW-4 Dattatray Shamrao Patil is the
investigating officer. PW-5 Dr. Purushottam
Ratanlal Agrawal is the medical officer who has
carried out the post-mortem examination over the
dead body of Kavita.
6. First of all, we will examine the oral
evidence of PW-5 Dr. Purushottam Ratanlal Agrawal.
During the course of examination-in-chief, he
deposed that on 1st January, 2012, he was attached
to Cottage Hospital, Shirpur as a Medical Officer.
On that day, the police had brought the dead body
of Kavita Baban Pawara in the hospital for post-
mortem examination. On that day, he has carried
out the post-mortem examination over the dead body
of Kavita. He found following injuries on the
person of deceased Kavita:-
"A] Abrasion over abdomen 2 X 2 cm.
B] Abrasion over nose 2 X 2 cm.
C] Contusion over face 4 X 4 cm.
cria443.13
9
D] Multiple abrasion over right knee 4
X 1 cm.
E] Abrasion over abdomen 4 X 1 cm.
F] Contusion over abdomen 2 X 2 cm.
G] Contusion over chest 3 X 2 cm.
H] Abrasion over abdomen,
I] Contusion over chest,
J] Fracture of right side ribs 3rd,
4th, 5th and 6th,
K] Fracture of left side over ribs over
3rd, 4th and 5th,
L] Fracture of parietal bone on right
side,
M] Fracture of right femur.
7. PW-5 Dr. Purushottam Agrawal further
deposed that all the above mentioned injuries were
ante-mortem injuries. He further deposed that he
found following internal injuries on the person of
deceased:
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10
"a] Contusion right parietal region 3 X
3 cm.
b] Skull dash of right parietal bone,
c] Intracranial hemorrhage,
d] Fracture of right side ribs 3rd,
4th, 5th and 6th,
e] Fracture of left side ribs 3rd, 4th
and 5th,
f] Right lung and left lung are found
in rupture,
g] Liver, spleen and kidneys are found
in rupture."
. PW-5 Dr. Purushottam Agrawal further
deposed that according to him, the cause of death
of Kavita is "due to cardio respiratory failure
due to hemorrhagic shock due to injuries to vital
organ like brain, lungs, liver, heart, kidney and
spleen and multiple fractures". Accordingly, he
issued post-mortem note of deceased (Exhibit-31).
He further deposed that the injuries mentioned in
cria443.13
11
Column No.17 and 19 would be possible if the
person was beaten by sticks and fist and blows.
According to his opinion, the person may die due
to the injuries caused to him.
8.PW-5 Dr. Purushottam Agrawal further
deposed that on 29th February, 2012, the
investigating officer Mr. Patil had given a letter
to him for obtaining his opinion as to whether
injuries caused to the deceased would be possible
by sticks or not. He further deposed that Mr.
Patil had brought stick with him for showing the
same to PW-5. He was shown the copy of said letter
(Exhibit-26) which bears his signature. He further
deposed that on 4th March, 2012, he has given his
opinion about the same in the said letter. He
further deposed that the letter (Exhibit-32) bears
his signature and the contents of it are correct.
He was shown the said stick (Article No.A).
According to his opinion, the injuries caused to
the deceased as mentioned in post-mortem notes
cria443.13
12
would be possible by means of said stick, Article
No.A.
9.During the course of cross-examination,
PW-5 Dr. Purushottam Agrawal has stated that he
has mentioned the age of deceased as 26 years in
clause No.7 of the post-mortem notes. There is
mention in letter vide Exhibit-26 that the stick
has been found on the spot of offence. He further
stated that he has minutely perused the said
stick. He observed that there were blood stains on
the said stick. He has not obtained blood sample
by removing those blood stains from the said stick
for sending it to C.A. He denied the suggestion
that if a person consumes liquor of heavy dose for
years together, then his bone becomes weak. He
further stated that there are several reasons to
become bones weak. He further denied the
suggestion that if a person consumes excess dose
of liquor and if he falls in a ditch or on sloppy
area of stone, then such person would sustain such
13
cria443.13
type of injuries as mentioned in post-mortem
notes. He further stated that according to his
opinion, injury Nos.10 to 13 mentioned in post-
mortem notes vide Exhibit-31 would not cause to
the person if the person falls on stony surface.
10.The evidence of PW-5 Dr. Purushottam
Agrawal, shows that deceased Kavita received
multiple injuries, her right side ribs and left
side ribs were fractured, her lungs, spleen and
kidneys were found in rupture condition. According
to PW-5 Dr. Purushottam Agrawal, the cause of
death of Kavita is "due to cardio respiratory
failure due to hemorrhagic shock due to injuries
to vital organ like brain, lungs, liver, heart,
kidney and spleen and multiple fractures". Thus,
from the perusal of the evidence of PW-5 Dr.
Purushottam Agrawal, the injuries mentioned in the
post-mortem notes, it is clear that death of
Kavita was homicidal.
cria443.13
14
11.Now, we will examine the evidence of sole
eye witness. PW-3 Arti Baban Pawara deposed that
accused Baban is her father. Manohar Pawara is her
maternal uncle. Deceased Kavita was her step
mother. Accused was doing agricultural work.
Accused was addicted to liquor. Accused used to
beat Kavita under the influence of liquor. She
further deposed that incident took place on
Saturday. Incident took place in the night time.
Her father demanded money to her mother for
consuming liquor and when her mother refused to
pay money, her father beat her mother with stick,
on back, stomach and head. She further deposed
that due to that beating, her mother expired.
After death of her mother, her father closed the
door from inside, and on next day morning her
father ran away. In the morning hours, her
maternal uncle Manohar came there. She narrated
all the incident to her uncle. She further deposed
that the stick which was used by her father for
beating her mother, if shown to her, she can
cria443.13
15
identify the same. She identified the stick
Article-A shown to her in the Court, to be the
same.
12.During the course of cross-examination,
PW-3 Arti Pawara stated that accused also does
mason work. Accused used to go out of village
Boradi for doing the said work. Accused used to go
frequently to Nandurbar for the said work. She
further stated that her mother Kavita also used to
consume liquor and after consuming liquor, her
mother used to quarrel with her father. She denied
the suggestion that in the night of incident her
father had gone to Nandurbar. She further stated
that, during whole night she did not sleep. She
admitted the suggestion that in the said night her
father and mother both consumed liquor together.
She further stated that surrounding to their
house, there is no any other hut. The hut of Bansi
Baraku is on one side of their house. The hut of
Gaba Kathha Pawara is also on one side of their
cria443.13
16
house. The hut of Gaja Bansi Pawara is also near
their house, and opposite to their house, there is
hut of Dikya Pawara. She further stated that in
the said night, nobody came to her house. Her
maternal uncle resides at a distance of 500 feet
from her house. She further stated that on the day
of her deposition also, her maternal uncle came in
the Court. She further stated that she came along
with her uncle. She further stated that on next
day of incident she accompanied her maternal
uncle for lodging report. She denied the
suggestion that she gave her statement to police
as per instructions of her maternal uncle. She
denied the suggestion that her father had not
beaten any time to her mother with sticks. She
denied the suggestion that due to over dose of
liquor her mother was falling, due to which her
mother sustained injuries.
13.Upon careful perusal of the evidence of
PW-3 Arti Pawara, she unequivocally stated that
cria443.13
17
at the time of incident, she was present in the
house. Her father demanded money from her mother
for consuming liquor and when her mother refused
to pay money, her father beat her mother with
stick, on back, stomach and head. She further
deposed that due to such beating her mother
expired. Being daughter of accused, her presence
in the house, during the night time, was natural.
Though PW-3 Arti Pawara is a child witness, her
evidence is cogent, reliable and trustworthy.
Admittedly at the time of incident PW-3 Arti was
about 10 to 11 years old and at the time of her
deposition in the Court she was about 11 to 12
years old. However, perusal of her examination-in-
chief and cross-examination shows that she has
given rational answers. No doubt before recording
her evidence, being a child witness, it would have
been better if the trial Court has asked some
general questions to her to understand whether she
was able to give her oral testimony. However, on
that count the evidence of PW-3 Arti could not be
cria443.13
18
discarded, which is otherwise cogent, trustworthy
and reliable. As observed earlier, PW-3 Arti has
given rational answers to each question which was
put to her during the course of her examination-
in-chief and also in the cross-examination.
Further, her evidence is corroborated by the
medical evidence. PW-3 Arti deposed that her
father beat her mother with the stick, on her
back, stomach and head. The medical evidence shows
that deceased Kavita sustained injuries to her
ribs, vital organs such as lungs, liver, spleen,
kidneys and also on her head.
14.The Supreme Court in the case of State of
Karnataka vs. Shantappa Madivalappa Galapuji and
others3, in para 14 and 15 of the Judgment ,
observed as under:-
"14. The position in law relating to the
evidence of child witness has been dealt
with by this Court in Nivrutti Pandurang
3(2009) 12 S.C.C. 731
cria443.13
19
Kokate v. State of Maharashtra4 and Golla
Yeluu Govindu v. State of A.P.5.
15. "6.... The Evidence Act, 1872 ( in
short 'the Evidence Act') does not
prescribe any particular age as a
determinative factor to treat a witness to
be a competent one. On the contrary,
Section 118 of the Evidence Act envisages
that all persons shall be competent to
testify, unless the court considers that
they are prevented from understanding the
questions put to them or from giving
rational answers to these questions,
because of tender years, extreme old age,
disease- whether of mind, or any other
cause of the same kind. A child of tender
age can be allowed to testify if he has
intellectualcapacitytounderstand
questions and give rational answers
thereto. This position was concisely stated
by Brewer, J. in Wheeler v. United States6.
The evidence of a child witness is not
required to be rejected per se, but the
court as a rule of prudence considers such
evidence with close scrutiny and only on
being convinced about the quality thereof
and reliability can record conviction,
5 (2008) 16 S.C.C. 769
6 40 L Ed 244
4(2008) 12 S.C.C. 565
cria443.13
20
based thereon. (See Suryanarayana v. State
of Karnataka7).
7. In Dattu Ramrao Sakhare v. State of
Maharashtra8 it was held as follows: (SCC
p.343, para 5)
'5..... 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.'
7(2001) 9 S.C.C. 129
8(1997) 5 S.C.C. 341
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21
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, shaken and
moulded, but it is also an accepted norm
that if after careful scrutiny of their
evidence 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."
The above position was highlighted in
Ratansingh Dalsukhbhai Nayak v. State of
cria443.13
22
Gujarat at SCC pp.67-68, paras 6-7."
15. In the present case also, on close
scrutiny of the evidence of PW-3 Arti Pawara, it
reveals that she has intellectual capacity to
understand questions and give rational answers
thereto. PW-3 Arti Pawara has given rational
answers to the questions which were put to her.
Her evidence is reliable and trustworthy. We have
closely scrutinized the evidence of PW-3 Arti
Pawara and we are convinced that the same is
reliable. We have also carefully perused the
findings recorded by the trial Court in this
respect. The trial Court has accepted the oral
testimony of PW-3 Arti Pawara. In Para 19 of the
impugned Judgment the trial Court has given cogent
reasons why it has accepted the oral evidence of
PW-3 Arti Pawara. The relevant part of Para 19 of
the impugned Judgment reads as under:
"19...... I have carefully scrutinized the
evidence of P.W.3 being a child witness
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23
and I am satisfied that she has given
rational answers to the questions put up
to her while recording her statement
before the Court. I am also satisfied that
really P.W.3 though she is a child witness
but she is capable to understand the
questions put up to her on behalf of the
accused and also on behalf of State and
she has really given rational answers
about the same by considering the evidence
produced on record. I am satisfied that
really she has not exaggerated her version
or she has not developed the prosecution
story about the incident. She has stated
the true facts of incident by involving
her father in the alleged crime. P.W.3 is
mature and on that basis she has given
rational answers to the questions put up
to her while recording her statement and
on that basis I am satisfied that really
she has not been tutored by her maternal
uncle or by any other person. Therefore, I
have no hesitation to rely upon the
testimony of P.W.3 for involving the
accused in the alleged crime. Her evidence
cannot be discarded she being the daughter
of the accused. I do not find any material
omission or contradiction in her evidence
for discarding her evidence entirely.
Therefore, I am relying upon the evidence
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24
of P.W.3 whose testimony inspires the
confidence for involving the accused in
the alleged crime."
16.Thus, it is clear that the trial Court
has carefully scrutinized the evidence of PW-3
Arti Pawara and thereafter relied upon her
evidence, though she is a child witness. After
carefully considering the findings recorded by the
trial Court, we are of the opinion that the trial
Court has rightly relied upon the evidence of PW-3
Arti Pawara.
17.The prosecution has examined PW-1 Manohar
Guljar Pawara, who is the informant. He deposed
that deceased Kavita was daughter of his sister.
Kavita was married with the accused about 10 years
back from the date of incident. She was having two
daughters, namely Kalpana and Vandana, and a son
Banti. At the time of incident, the deceased
Kavita was having a daughter aged four months.
Before marriage with deceased Kavita, accused
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25
Baban had earlier performed a marriage but his
wife had deserted him. The accused Baban was
having a daughter Arti (PW-3) from his first wife.
Arti was residing with Baban and Kavita. At the
time of incident, Arti was aged about 10 to 11
years. He further deposed that accused was
resident of village Gadhad Deo but after marriage
with Kavita, accused shifted to village Boradi.
Accused was residing at a distance of 40 to 50
feet from his house. Accused Baban was addicted to
liquor. Accused used to demand money from deceased
for consuming liquor and when she refused to pay
money, accused used to beat her. He further
deposed that several times he tried to give
understanding to the accused but he did not
listen.
18.The informant PW-1 Manohar Pawara further
deposed that the incident took place on 31st
December, 2011, at about 10.00 to 11.00 p.m. That
time he was present in his house. He heard noise
cria443.13
26
of quarrel between accused and Kavita. As there
was routine quarrel between them, he did not go
there. He further deposed that on next day, at
5.30 a.m., he visited the house of Kavita. Kavita
was dead. When he went inside, only Arti was
present there. He asked Arti about the incident
and she told him about the incident. Arti told him
that accused Baban beat Kavita with stick and kick
blows in the night. Arti told him that accused was
under the influence of liquor and again he was
demanding money for consuming liquor and when
Kavita refused to pay money, accused beat Kavita
with stick, fist and kick blows. Arti told him
that accused threatened to kill her and on the
next day morning the accused told her that he was
going for nature's call and ran away. He further
deposed that he saw dead body of Kavita. There was
abrasion on her face, back and knee joint and skin
was removed. Her face turned blackish. Her blouse
was in torn condition. On 1st January, 2012,, he
visited Shirpur police station and lodged first
cria443.13
27
information report. Police recorded his report,
read over its contents. The report (Exhibit-12)
bears his signature. He further deposed that
accused before the Court is the same.
19.During the course of cross-examination,
the informant PW-1 Manohar Pawara stated that he
usually signsin English. He is educated up-to
S.S.C. The accused was residing at Boradi since
last ten years. Out of the wedlock, the accused is
having four children and the accused was residing
with his family in his locality. He further stated
that his locality consists of 50 to 100 huts. The
hut of Baban is surrounded by four sides of huts.
Baban was a mason and for sometimes he used to
visit Nandurbar for said work. Eight to ten days
prior to the incident, the accused had gone to
Nandurbar for the work of mason. He further stated
that he has not personally witnessed as to how
Kavita died and who had beaten her. He stated to
police in his first information report that in the
cria443.13
28
night of 31st December, 2011, he heard noise of
quarrel between accused and Kavita. He admits that
at that time he did not hear the noise of quarrel
but he heard cries of Kavita. He stated to the
police that Arti told him that accused threatened
her to stay there, else he would kill her. He was
unable to state any reason as to why the said fact
is not mentioned in the first information report.
He was further unable to state any reason as to
why it is not mentioned in the first information
report that skin of back of Kavita was removed. He
was also unable to state any reason as to why it
is not mentioned in the first information report
that the blouse of Kavita was torn. He admits that
Kavita was also in habit of consuming liquor. He
denied the suggestion put to him that, as it was
31st December, Kavita was heavily drunk and in the
influence of liquor she fell down and sustained
injuries.
20.After careful perusal of the entire
cria443.13
29
evidence of the informant PW-1 Manohar Pawara, it
is clear that though he has not witnessed the
incident, soon before the incident he has heard
noise of the quarrel between Kavita and accused.
On the next day at about 5.30 a.m. he visited the
house of the accused. At that time he saw that
dead body of Kavita was lying in the house and
only Arti was present in the house. His evidence
shows that Arti narrated the incident to him that
accused, under the influence of alcohol, beat
Kavita with the help of stick, fist and kick blows
and Kavita died on the spot. Thereafter he lodged
first information report. Thus upon conjoint
reading of the evidence of PW-3 Arti Pawara and
PW-1 Manohar Pawara, it is clear that the accused
is the only author of the injuries on the person
of Kavita. There is no reason to disbelieve the
oral testimony of both these witnesses. PW-1 Arti
is the eye witness and she has witnessed the whole
incident. She has no reason to depose against her
father. PW-1 Manohar has visited the house of
cria443.13
30
the accused soon after the incident and noticed
that dead body of Kavita was lying in the house
and PW-3 Arti has told him that due to beating
given by the accused, Kavita died. The evidence of
both these witnesses is cogent, reliable and
trustworthy.
21.The prosecution has examined PW-2 Aapsing
Tedshya Pawara. He is a panch to the spot
panchnama (Exhibit-17). He has also deposed that
under the spot panchnama, police also seized one
stick which was lying on the spot. Thus, it is
clear that the weapon which was used in the crime,
was lying on the spot and the same was seized by
the Police. The evidence of PW-5 Dr. Purushottam
Agrawal reveals that the police had asked his
opinion as to whether injuries caused to the
deceased would be possible by the stick or not.
The evidence of PW-5 Dr. Purushottam Agrawal
further reveals that he was shown the said stick
(Article-A) and according to his opinion, the
cria443.13
31
injuries caused to the deceased as mentioned in
the post-mortem notes would be possible by means
of stick (Article-A). Thus, the prosecution has
proved that the accused has caused injuries to
deceased Kavita with the help of stick, Article-A.
22. PW-4 Dattatraya Shamrao Patil, A.P.I.
Shirpur, is the investigating officer, who deposed
about the manner in which he has carried out the
investigation.
23.Thus, upon careful perusal of the
evidence brought on record, it reveals that at the
time of incident, accused, his wife Kavita and
Arti, daughter of accused, were only present in
the house. Accused was under the influence of
liquor. He demanded money from his wife Kavita for
consuming more liquor. Kavita refused to pay money
and therefore the accused got annoyed and he
mercilessly beaten Kavita with the help of stick,
and also by fist and kick blows. Kavita died on
cria443.13
32
the spot. The child witness PW-3 Arti witnessed
all the incident. When accused noticed that Kavita
died, he closed the door from the inside and
threatened his daughter Arti to keep quiet. On the
next day, early in the morning, the accused ran
away from the house. In the early morning hours,
at 5.30 a.m., the informant PW-1 Manohar came to
the house of the accused. He noticed that dead
body of Kavita was lying in the house. At that
time PW-3 Arti narrated the whole incident to the
informant. The prosecution has brought on record
through the evidence of panch witness PW-2 Aapsing
Pawara and the investigating officer PW-4
Dattatray Patil that a stick, which was used as a
weapon to commit the offence, was lying on the
spot and the same was seized. The prosecution has
brought on record, through the evidence of PW-5
Dr. Purushottam Agrawal that death of Kavita was
homicidal. Thus, the prosecution has proved beyond
reasonable doubt that the accused committed an
offence punishable under Section 302 of the I.P.
cria443.13
33
Code.
24.The trial Court has considered the entire
evidence brought on record and observed in Para-29
of the impugned Judgment that, admittedly PW-3 was
the only witness to the incident and no any other
witness had seen the incident except PW-3. The
trial Court has further observed that it has no
hesitation to rely upon the testimony of PW-3 as
her evidence inspires the confidence on the point
of incident for involving the accused in the
alleged crime. The trial Court has further
observed that it has considered the scope of
Section 134 of the Evidence Act and there is no
bar to rely upon the sole testimony of a single
witness for connecting the accused in the crime if
testimony of such witness inspires confidence on
the point of incident. The trial Court has further
observed that, there is sufficient evidence on
record to show that the accused has intentionally
or knowingly caused the death of his wife by
cria443.13
34
inflicting injury on her head, back and stomach by
means of stick. The trial Court has further
observed that, when the accused has caused injury
on the vital part of the body of the deceased
including the head, then it can be held that the
intention of the accused was to kill the deceased
by means of stick. The trial Court has further
observed that the act of the accused would
certainly cover under Section 302 of the I.P.
Code. The trial Court has convicted the
Appellant/accused for the offence punishable under
Section 302 of the I.P. Code and sentenced him, as
afore-stated.
25.In the light of discussion herein above,
on independent and in-depth scrutiny of entire
evidence, we are of the opinion that the trial
Court has considered all the evidence brought on
record in its proper perspective and recorded the
findings which are in consonance with the evidence
on record and convicted the Appellant/ accused.
cria443.13
35
The conclusions reached by the trial Court are in
consonance with the evidence brought on record by
the prosecution. There is no perversity as such.
26.It is alternatively argued by the learned
counsel appearing for the Appellant that there was
no intention on the part of the Appellant to kill
his wife, and therefore the offence would fall
under Section 304 Part II of the I.P. Code. The
said submission deserves no consideration for the
simple reason that in absence of any explanation
offered by the Appellant under which circumstances
his wife Kavita died, it is not possible to read
the mitigating circumstances in favour of the
Appellant. On the contrary, the conduct of the
Appellant to run away from the house after
commission of the offence, clearly shows his
involvement and intention in the commission of
offence. There are no mitigating circumstances to
accept the submission of the counsel appearing for
the Appellant that the Appellant had no intention
cria443.13
36
to kill his wife. Further, it is significant to
note that the assault is on the vital parts of the
body of Kavita.
27.In the light of discussion herein above,
we are of the opinion that there is no merit in
the Appeal. The Criminal Appeal stands dismissed.
28.Since, P.P. Khandagale Patil, learned
counsel is appointed to prosecute the cause of the
Appellant - Baban s/o Padavi Pawara, his fees and
expenses are quantified at Rs.7,000/- (Rupees
Seven Thousand).
0[V.K. JADHAV, J.] [S.S. SHINDE, J.]
asb/JUL18
3 issues framed by the court
Could the sole child eyewitness's testimony be accepted despite the absence of preliminary questions assessing her competence?
Was the conviction for murder established beyond reasonable doubt?
Should the offence be reduced to Section 304 Part II on the ground of absence of intention to kill?
Colour shows how this judgement treated each authority
K. Venkateshwarlu vs. State of A.P.Referred¶58
A.I.R. 2012 S.C. 2955 · Who else cites this
Manisha w/o Ravindra Humbe and another vs. the State of MaharashtraReferred¶59
2017 ALL M.R.(Cri) 1215
State of Karnataka vs. Shantappa Madivalappa Galapuji and othersApplied¶167
(2009) 12 S.C.C. 731 · Who else cites this
2 provisions across 1 enactments
Baban s/o Padavi Pawara
The State of Maharashtra
S.S. SHINDE
V.K. JADHAV
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court