Lalya Dharma Khadkya vs State of Maharashtra

Sahai, J.—The appellant feeling aggrieved by his conviction u/s 302 IPC and sentence of life imprisonment and a fine of Rs. 100/- and 7 days in default of payment of fine, vide Judgment and Order dated 18-5-1991, passed by the third Additional Sessions Judge, Thane in Sessions Case No. 24/1980, has preferred the present appeal.

The prosecution case in brief as contained in the FIR and the statement of P.W. 3 Sonibai Lalya Khadkya recorded in the Trial Court, runs as under :-

The appellant is the husband of P.W. 3 Sonibai Lalya Khadkya. They have three sons and one daughter. One of the sons was Viju aged 6 years, the deceased in the present case. According to Sonibai, the appellant used to consume liquor, ill treat her and physically assault her. On 4-12-1989, at about 10 p.m. the appellant after consuming liquor is alleged to have entered the house and started assaulting her. According to the prosecution, the appellant suspected that his wife P.W. 3 Sonibai Khadkya was having illicit relations with one Chintya of his village. Seeing the appellant assaulting Sonibai, the deceased Viju who is alleged to have been eating dinner, at the aforesaid time, told the appellant that he should not assault his mother. This is alleged to have infuriated the appellant who is said to have picked up a stone which was lying nearby and hurled it twice or thrice at Viju resulting in injuries on Viju''s person, to which he instantaneously succumbed . Thereafter ,P.W. 3 Sonibai Lalya Khadkya is said to have gone to Barkya Dharma Khadkya (Krishna) P.W. 1 her neighbour and narrated to him the incident. Barkya Dharma Khadkya on receiving the aforesaid information came to Sonibai''s house. It is alleged that the appellant had thrown the corpse of the deceased in the courtyard and the same was brought inside the house by P.W. 1 Barkya and P.W. 3 Sonibai. Thereafter, P.W. 3 Sonibai went to the Sarpanch and Patil and next morning P.W. 1 Barkya Khadkya along with the Sarpanch and others went to police station, Kasa where at 2.30 a.m. he is alleged to have ledged the FIR. The distance between the place of the incident and the aforesaid police station is said to be about is 15 miles.

At police station, Kasa, on the basis of P.W. 1 Barkya Khadkya''s FIR a case u/s 302 IPC read with some other sections was registered by PSI Baba Abbas Patel, P.W. 9, against the appellant. After registering the case, P.W. 9 Baba Patel at about 8.30 to 8.45 a.m. the same day left for the place of the incident. There, he found the corpse of the deceased lying inside the house and prepared the inquest report. He seized the underwear of the deceased and the sari with which his corpse had been covered. Same day i.e. 5-12-1989 he arrested the appellant. He is also alleged to have recovered the stone with which the deceased is alleged to have been done to death and the blood-stained earth from the place of incident. The clothes of the appellant were also taken into possession by him. The recovered articles were sent to the Chemical Analyst.

The post-mortem examination of the dead body of Viju was conducted on 5-12-89 between 5.30 p.m. to 6.30 p.m. at Rural Hospital, Kasa. On the corpse of the deceased ,the autopsy surgeon found :-

(1) Crushed fracture of Lt. hand 2 1/2 from wrist

(2) Crushed-fracture of skull and separation of parietal bone from the skull.

In the opinion of the doctor, the death of the deceased was on account of Cardio Pulmonary failure, on account of crushed injury to his head. The same day Dr. Siddik Nathu Kom P.W. 5 of Rural Hospital, Kasa medically examined Sonibai Lalya Khadkya. Exhibit 17 is her injury report and the same reads thus :-

There is no external injury seen on the body. No Bruise/hecatomb and scratch seen on the body. This is blood injury (trauma). This is a simple type of injury. Identification mark, tattooing on forehead.

In the usual course, after the completion of the investigation, the charge sheet under sections 302/323/498 IPC was submitted against the appellant in the Court of the JMFC, Dahanu on 26-12-1989 by PSI Baba Patel, P.W. 9, The case was committed to the Court of sessions by the JMFC, Dahanu vide Order dated 5-1-90. In the Court of Session, on 19-11-1990, charges u/s 302 IPC and 498 A IPC were framed against the appellant and to those charges he pleaded not guilty. His defence was that he had no hand in this murder and when he reached the place of the incident, he found Chintya, Sonabai, the children running helter-skelter and Viju having head injuries fallen on the ground outside the house.

In the Trial Court, as many as 9 witnesses were examined by the prosecution. Three out of them namely Ramibai Lalya Khadkya, P.W. 2, the junior wife of the appellant who turned hostile in the Trial Court, Sonibai Khadkya P.W. 3 the senior wife of the appellant and Kali Khadkya, P.W. 4, the daughter of the appellant were examined as witnesses, of fact. Apart from the aforesaid witnesses, P.W. 1 Barkya Khadkya, the informant, P.W. 5 Dr. Siddik Kom who medically examined Sonibai P.W. 9 PSI Baba Patel, the Investigating Officer, and some other witnesses were also examined. The learned Judge believed the evidence adduced by the prosecution and passed the impugned judgment.

We have heard Miss S. D. Khot, learned counsel for the appellant and Smt. Tahilramani, learned Additional Public Prosecutor for the State of Maharashtra, at considerable length. We have also perused the various Exhibits tendered and proved by the prosecution to substantiate its case and the impugned judgment.

At the very outset, we may mention that we do not find it safe and prudent to place reliance on the testimony of P.W. 2 Ramibai and P.W. 4 Kali Khadkya. P.W. 2 Ramibai turned hostile. It is true that the learned Additional Public Prosecutor cross-examined Ramibai P.W. 2 and confronted her with her statement recorded u/s 161 Cr.P.C. where in she has given a comprehensive eye witness account consistent with the prosecution case as unfolded by P.W. 3 Sonibai Khadkya in her statement recorded in the Trial Court. However, as she has resiled from her statement recorded u/s 161 Cr.P.C. and when confronted with it stated that she had not mentioned the facts contained therein, in our opinion prudence warrants that we should not take her testimony into consideration.

We also cannot persuade ourselves to accept the testimony of P.W. 4 Kali Khadkya either, for the reasons enumerated hereinafter. Firstly, she is a child of 12 years and hence, we feel that we should be cautious, slow and circumspect in accepting her testimony. Secondly, we find that in the last two lines, of her cross-examination, she stated that "my mother informed me to tell that my brother was assaulted by the accused." This means she had not seen the incident Thirdly, we find that in her examination-in-chief, she stated that she had seen the incident from a distance of about 7 to 8 feet but, in her cross-examination, she says that she hid behind the bullock cart which was standing at a distance of about 20 feet from the spot.

We may also state that the informant Barkya Dharma Khadkya, the real brother of the appellant also turned hostile in the trial Court, but in cross-examination, by the learned Public Prosecutory, had to admit that Exhibit 6 (the FIR) contains his signatures.

The crucial question to be answered is as to whether the evidence of P.W. 3 Sonibai Khadkya inspires confidence and if the answer is in the affirmative then whether is it sufficient to uphold conviction of the appellant.

Miss Khot learned counsel for the appellant contended that her sole testimony does not inspire confidence and should be rejected by us. We regret we cannot accede to this contention. After going through her entire deposition, we find that she is a wholly reliable witness. In the first instance being the wife of the appellant, we find it extremely difficult to comprehend that she would falsely implicate the appellant and that too on the charge of the murder of their six year old son. Secondly, we find that her presence at the place of incident, which was her own house, was very natural. Thirdly, we find her account of the incident, to which we have referred earlier, in consonance with probabilities .Fourthly, the appellant is the only culprit who has been nominated by her in the instant crime and we are not prepared to believe that she would have let go the real assailant and falsely implicate him. Apart from this, we find that three circumstances corroborate and lend assurance to her statement :-

(a) the FIR in this case was lodged very promptly. The incident took place on 4-12-89 at about 10 p.m. and the FIR was lodged next morning at 7.30 a.m. at police station, Kasa which is situated at a distance of about 15 miles from the place of the incident. The appellant is named in this FIR;

(b) A perusal of the ante-mortem injuries found on the person of the deceased shows that they could be caused as a result of hurling of stone; and

(c) The presence of group of blood on Article No. 7, underwear of the deceased an Article No. 9 banian of the appellant. Blood group of the deceased on the clothes of the appellant shows that the two came into close contact during the course of incident clinches appellants involvement.

We find that the evidence of P.W. 3 Sonibai Khadkya inspires implicit confidence and by itself is sufficient for the conviction of the appellant. The time honoured dictum is incorporated in Section 134 of the Indian Evidence Act. That section reads thus :-

Section 134

Number of witnesses

No particular number of witnesses shall in any case be required for the proof of any fact.

It is the quality of the evidence adduced which matters and not the number of the witnesses examined. As mentioned earlier, the evidence of P.W. 3 Sonibai Khadkya is of a unimpeachable quality and we place reliance on it. Miss Khot, learned counsel for the appellant could not point to us any infirmity in her evidence which could persuade us to hold to the contrary. Hence, we find her contention that the testimony of Sonibai Khadkya P.W. 3 does not inspire any confidence to be without substance and we accordingly reject it.

But, having said this the question which remains to be answered is as to whether the learned Trial Judge was right in convicting the appellant u/s 302 IPC. Miss Knot''s contention is that the liability of the appellant would not travel beyond that contemplated by Section 304 IPC. In our opinion, there is considerable merit in the aforesaid contention. We have mentioned above the circumstances in which the death of Viju the own son of the appellant and Sonibai Khadkya P.W. 3 took place. Let us briefly recapitulate them. The prosecution case was that at about 10 p.m. on 4-12-1989, the appellant in a drunken state came and started beating his wife Sonibai Khadkya, P.W. 3 whom he suspected of having illicit relations with one Chintya of his villages. The deceased Viju who at that time was having his dinner, seeing the appellant beating his mother is alleged to have told him that he should not beat her. At this, the appellant is said to have got infuriated and took a stone from the chullah which was nearby and hurled it twice on Viju resulting in injuries on the left wrist and head of Viju. In the aforesaid circumstances, we find that the act of the appellant will not fall either in any of the four clauses of Section 300 IPC or under the first part of 304 IPC. In our opinion, the appellant''s act would fall within the ambit of part (II) of Section 304 IPC. In the background of the facts mentioned above, it can reasonably be said that when the appellant twice hurled a stone on the deceased, he had the knowledge that by his act he could cause his death. Hence, the conviction of the appellant u/s 302 IPC and the sentence awarded thereunder, has to be set aside and instead he has to he convicted u/s 304 (Part II) IPC. In our view, taking into consideration the entire circumstances, the ends of justice would be squarely met if the appellant is awarded a sentence of 5 years R.I. u/s 304 (Part II) IPC.

In The result, this appeal succeeds in part. The conviction of the appellant u/s 302 IPC and the sentence awarded thereunder by the IIIrd Additional Sessions Judge, Thane, vide order dated 18-5-1991 is set aside and instead the appellant is convicted and sentenced to undergo 5 years R.I. u/s 304 (Part II) IPC.

Office shall send a copy of our Judgment to the appellant, through the Superintendent of the Jail, where the appellant is presently detained.

Appeal partly allowed.