Suresh vs The State of Maharashtra

A.B. Chaudhari, J.—Being aggrieved by the judgment and order dated 25th November, 2009, passed by the learned Ad-hoc Additional Sessions Judge-3, Latur, by which the learned trial Judge has convicted the Appellant -Suresh for the offence punishable under Section 302 of the Indian Penal Code, the present appeal has been filed by him.

In support of the appeal, Mr. Dhengale, learned counsel for the Appellant has vehemently argued that the prosecution case is based on sole eye witness PW-10 -Pratiksha, a small girl of aged 12 years and the trial Judge ought to have rejected her evidence. He has submitted that the girl had no reason to come to village Niwali from the place of her parents namely at Surat and therefore, her presence as an eye witness is only doubtful. He has submitted that in absence of any corroboration to her testimony, it was highly risky to convict the Appellant -Accused for the serious offence of murder. He has submitted that except the quarrel between husband and wife, there was no other material brought on record for commission of the alleged offence of murder of wife Chitra. He has further submitted that as there is no offence of murder proved by the prosecution, ultimately the offence would be brought down, looking to the facts and circumstances of the case.

Per contra, the learned APP supported the impugned judgment and order and submitted that the judgment is based on evidence and no interference is necessary.

Consideration:

We have considered the arguments advanced before us by the learned counsel for the rival parties. We have seen the reasons recorded by the learned trial Judge for recording the finding of conviction. We find that the case of prosecution is based on the sole testimony of PW-10 -Pratiksha. We also find that she is a child witness. We have read her evidence carefully to find out whether there is any scope for raising doubt of truthfulness of her evidence. We have seen her cross-examination made by the learned counsel for the Appellant and the learned counsel for other accused persons. From perusal of the cross-examination, we find that infact it has been categorically brought on record that the girl PW-10-Pratiksha came alongwith Chitra, the deceased, to her house at Niwali. Not only that, in answers to the questions in his 313 statement, the Appellant has candidly admitted that PW-10 -Pratiksha had come to the place of Chitra, the deceased. We are, therefore, unable to accept the contention that it was impossible that PW-10 -Pratiksha who have come from Surat in the month of June in the house of Chitra.

Apart from that PW-3 - Bapusaheb has also stated accordingly to which the answers given by the Appellant in his 313 statement that his deposition that Pratiksha had come from Surat to the house of Chitra is true. Thus, we find that the Appellant instead of challenging the evidence of PW-10 - Pratiksha has almost conceded to the prosecution story of her presence in the house. The next question is about she as an eye witness, the learned counsel for the Appellant wants us to disbelieve her evidence.

We quote paragraph Nos. 3 and 4 of her evidence, which read thus:

"3. At that time Soni while playing entered the room of uncle Suresh [accused No. 1]. She shouted loudly. She shouted saying "Appani Antila Kay Kele Bagh". She told her mother saying "Appani Antila Kay Kele Bagh". Therefore I went in the said room in order to see what has happened. I saw accused No. 1 sitting on the chest of Chitrabai and was throttling her neck. Pushapabai and her mother in law took Chitrabai outside the room. I saw accused Suresh fully swatted. I saw Chitrabai in unconscious conditions and was giving jerks to her limbs and legs. One jeep came and Chitrabai was removed in the said jeep. Myself and Ganu in that night went to sleep in the house of Soni.

On 29-06-2007 my grand mother, maternal uncle, maternal aunt and many people came to Niwali. They came to Niwali as my maternal aunt Chitrabai breathed her last. The dead body of Chitrabai was brought to Niwali and she was cremated. Chitrabai died as accused No. 1 Suresh committed her murder by throttling her neck. I can identify the accused Suresh and his parents. I identify the accused present before the court."

As earlier pointed out, the cross-examination of this witness has elided nothing material to demolish her testimony. On the contrary, her testimony in the material particulars in relation to the actual assault by the Appellant by sitting on the chest of the deceased and pressing her neck has not even been challenged in the cross-examination. We are, therefore, quiet sure that her testimony deserves to be believed in entirety.

There is no rule that a single testimony cannot be belied if otherwise it gains the confidence of the Court. In our opinion, the testimony of PW-10 -Pratiksha, a child witness, is free from any doubt and is trustworthy. We have no hesitation in accepting her testimony as an eye witness to the incident of murder committed by the Appellant.

The alternate submission made by the learned counsel for the Appellant that there was no intention to commit the murder and therefore, offence of lower magnitude can be said to have proved, equally does not appeal to us. The Appellant sat on the chest of the deceased. Thus make her disabled from resisting and then pressed her neck resulting into her death though not instantly, but after some time. Thus, the intention of the Appellant was full and complete namely to commit murder of his wife. He just completed his intention and therefore, we do not see any force in the contention of the learned counsel for the Appellant for finding out any lower offence. That being so, we have no other alternative, but to dismiss the instant appeal. Hence, we pass the following order:

I. Criminal Appeal No. 326 of 2012, is dismissed.

II. Fees of the appointed Advocate is quantified at Rs. 4,000/-.