Criminal Appeal No. 38 of 1995

25th September, 2000

Petitioner Counsel: S/Shri. M.R.DAGA, J.B.KASAT

Cases Cited:
Mangoo and anr v. State of Madhya Pradesh, AIR 1995 S.C. 959 [Para 5]

JUDGMENT

R.K.BATTA J. :- The appellant along with four others was tried for the murder of his wife Lata Nandeshwar Khobragade under Section 302 read with 34 I.P.C. as also for causing disappearance of evidence of murder under Section 201 read with 34 I.P.C.

2. The prosecution had examined 11 witnesses to prove the said charges. The prosecution case in brief is that the appellant had, by twisting the neck of his wife, caused injuries to her as also injuries by beating, which resulted in her death. The deceased was clandestinely buried at night in the forest and on the next early morning, the appellant along with his son Roshan P.W.2 who was an eye witness of the incident, left the village. The incident in question is reported to have taken place on 24.10.1992 and the appellant was arrested on 8.11.1992 from the hut in the field of Kamal P.W. 7's grandfather.

3. The trial Court accepted the evidence of child witness P.W. 2 Roshan and other circumstances on record including the unnatural disposal of the dead body, abscondence of the appellant after the commission of the crime, the report Exhibit 48 lodged by co-accused Purushottam with the police on 26.10.1992 as well as the report Exhibit 19 lodged by P.W. 1 Suresh on the basis of information received through accused No.2 Purushottam and accused No.5 Shalik Zade, as also the medical evidence supporting the version of child witness Roshan P.W.2.

4. Learned Advocate Shri. M.R.Daga argued on behalf of the appellant that the trial Court has not maintained any record of preliminary examination of child witness in order to satisfy regarding competency of child witness to depose; that there are material omissions in statement of child witness vis-a-vis his police statement and that the evidence of the child witness is inherently unbelievable. He also urged that even though according to child witness Roshan P.W.2, his aunt was present in the house, yet the prosecution has withheld the said witness and has not examined her in the Court. He pointed out that the child witness had made a material improvement in his testimony when he stated that the mouth of his mother was gagged by his father which was not the case of the child witness before the police. He further urged that the child witness has been tutored by his maternal uncle. It was also pointed that the deceased died on account of illness and apprehending that he would be falsely implicated, the appellant had gone to Chandrapur wherein he contacted an Advocate for getting anticipatory bail which was not granted and that he had not absconded. It was further urged that the motive in this case has not been proved and the evidence on record is not sufficient to sustain the conviction of the appellant.

5. On the other hand, the learned A.P.P. urged before us that there is no reason whatsoever to disbelieve the child witness who has not only stood the test of cross-examination, but no material omissions or contradictions are there in his testimony. According to him, the evidence of the child witness is fully corroborated by the medical evidence on record. On this aspect, he has placed reliance on a judgment of the Apex Court in the case of Mangoo and another v. State of Madhya Pradesh reported in A.I.R. 1995 Supreme Court 959 wherein the evidence of child witness was acted upon as the medical evidence was not in entire conflict with the ocular version of the child witness. According to him, the fact that the appellant absconded after the commission of the crime, that the dead body was buried at night in the forest and reports Exhibit 48 and Exhibit 19 are material incriminating circumstances pointing out to the involvement of the appellant in the crime. He also urged that the theory of illness profounded through Dr.Vijay More P.W. 5 has been belied through the testimony of Dr.Tikeshwar Ghotekar P.W. 4. He, therefore, contends that no interference is called for in the matter.

6. The principal evidence as pointed out by the trial Court against the appellant is that of his own son Roshan P.W.2 who is a child witness. He was 12 years old when his deposition was recorded in the year 1994 which means that he was 10 years old at the time of the incident. It is no doubt true that the trial Court should have maintained a record regarding preliminary questions put to the child witness in order to determine the competency of the witness. Yet, the non-maintenance of the said record is not of much consequence since not only the trial court was satisfied about the competency of the witness, but the evidence of the witness itself shows that P.W.2 is a competent witness. P.W.2 Roshan had stated that at abut 10.30 a.m. his father came from the shop and told his mother that he wanted to contract a marriage with one Kamla and so she should give him consent for that. Since she refused to give consent, his father assaulted her. He also beat her and twisted her neck after which she was kept on the cot. Subsequently, a doctor was called and later, his mother died. According to P.W.2, the appellant along with the other co-accused put the dead body of his mother in a gunny bag, and went to bury his mother in the night and the appellant returned back to the house early in the morning and took him away. The child witness was cross-examined at length and except for some minor omissions, the testimony of the child witness on the material particulars on the main incident could not be shaken. According to him, his mother died at about 5.00 p.m. and later during the night, she was put in a gunny bag and buried. The dead body of the deceased was found buried in the forest area. Though the trial Court has stated that the motive could not be clearly established, yet we find that the prosecution has in fact been able to establish the motive against the appellant through the testimony of P.W.8 Sunderabai and child witness P.W. 2 P.W.2 Roshan had stated that his father had told his mother that he wanted to contract a marriage with one Kamla and she should give her consent. But she refused, as a result of which the appellant assaulted her and twisted her neck. Kamal P.W.7 pleaded total ignorance about the appellant and deposed that she was not knowing the appellant Nandeshwar. She was declared hostile and she stated that she did not know whether her husband is brother-in-law of accused Nandeshwar. She has thus suppressed the information on this aspect from the Court and in case her husband was not related to the accused, she could have categorically stated so, but she gave evasive reply. She also stated that the accused was not visiting her house. However, her mother P.W. 8 Sundarabai has stated that the husband of Kamla P.W.7 had deserted her and Kamla was residing with her at the time of the incident. She stated that she knew Nandeshwar and some times, the said accused Nandeshwar used to visit her house. She further stated that she did not know regarding the relation of Nandeshwar and Kamla. She also gives an evasive reply on the fact of relationship between Nandeshwar and Kamla and in case there was no relationship between the two, she could have categorically denied the said fact as she was suppressing the truth. The witness was declared hostile and during her cross-examination, she was confronted with her statement before the police wherein she had stated that Kamla and Nandeshwar had love affair and they wanted to marry. Of course, she denied to have made such statement before the police. Even though this witness was declared hostile, her testimony does lend support to the prosecution case that the appellant wanted to marry Kamla. Thus, the motive, in our opinion, stands duly established.

7. We have already pointed out that the testimony of child witness has stood the test of cross-examination except for the improvement on the question of gagging of mouth of his mother by the appellant. The testimony of child witness has stood the test of lengthy cross-examination with some minor omissions here and there. His testimony that the appellant assaulted his mother and twisted her neck gets complete corroboration from the medical evidence on record. P.W.4 Dr. Ghotekar who conducted post mortem on the dead body on 28.10.1992, found the following injuries on her person:

"1. Haematoma face Rt. side from Rt. eye to mouth. Size 6" x 4". Greenish and reddish discoloration present. Signs of inflammation seen. Depression of face Rt. & Lt. side seen.

2. # Haematoma fore head Lt. side seen. Size 3" x 2".

3. # Fracture & dislocation of cervical vertebrae 3rd to 5th present Neck can easily displace to any direction due to # Fracture & dislocation of 3rd to 5th cervical vertebrae.

4. # Fracture of Thyroid cartilage present. Congestion anteriorly seen.

5. Haematoma below scalp frontoparietaly Lt. side. Size 4" x 3".

He found fracture and dislocation of 3rd to 5th cervical vertebrae. The spinal cord injury was present on that level and the spinal cord was exposed posteriorly. The cause of death, according to him, was spinal shock caused by injury, fracture and dislocation of 3rd to 5th cervical vertebrae and spinal cord on that level. According to him, injury nos. 3 and 4 are possible by twisting of neck. The external injuries coupled with internal injuries were sufficient to cause death in the ordinary circumstances. Thus, medical evidence duly substantiates the ocular version of Roshan P.W. 2 who saw the appellant assaulting and beating the deceased as also twisting her neck. The evidence of Dr. Ghotekar namely twisting of neck disproves the defence version that the deceased had died on account of illness. The defence had put up a false defence of death due to illness through the statement of the appellant under Section 313 Cr.P.C. as also by lodging a missing report by co-accused Purushottam which is at Exhibit 48. This report has been proved through P.S.I. P.W. 11 Laxman Bhalavi. In this report, the said Purushottam had stated that there was a quarrel between the appellant and the deceased and the appellant beat her. In this report, it was further stated that his brother might have taken this deceased somewhere as she was not found in the house. Simultaneously, the appellant had absconded and had taken along with him his son Roshan P.W.2 who was an eye witness of the incident. Thus, there was a planned strategy to hoodwink the police that the deceased was taken away somewhere by her husband namely the appellant who absconded from the village. Filing of report Exhibit 48 by Purushottam was not challenged at all during the course of evidence of P.W.11 and it is only subsequently that Purushottam in his statement under Section 313 Cr.P.C., put forth an imaginary explanation in respect of Exhibit 48 that his signatures were taken by the police on a blank paper. Exhibit 48 is admissible in evidence. The false defence has created an additional link against the appellant.

8. The dead body was clandestinely buried in the forest at night and the appellant in the early morning absconded by taking his son P.W. 2 Roshan who was the eye witness of the incident, as a result of which the statement of this witness could not be immediately recorded and the same was recorded on 31.8.1992. Though the learned Advocate for the appellant tried to find fault with the delay in recording the statement of this witness, yet, in the facts and circumstances, we find no merit in the submission of the learned Advocate for the appellant. The appellant was arrested on 8.11.1992 and he came out with an explanation that he had gone to Chandrapur in order to obtain anticipatory bail. In case his wife had died on account of illness, then where was the question of seeking anticipatory bail or the appellant absconding from the village. Ultimately, the appellant was found hiding in a hut in the field of grandfather of Kamla as revealed by the Investigating Officer P.W.11 which further strengthens the motive that the appellant wanted to marry Kamla and as such, he was being shielded by her family by permitting him to hide in their hut. The evidence on record unerringly points out to the guilt of the appellant and that he is solely responsible for the murder of his wife. The appellant tried to destroy the evidence by clandestinely burying the deceased in the forest against all cannons of Hindu customs. For the aforesaid reasons, we are of the opinion that the prosecution had succeeded in establishing the charge of murder under Section 302 I.P.C. and the charge of destroying evidence under Section 201 I.P.C. Therefore, we do not find any merit in this appeal and the appeal is hereby rejected. The appeal is accordingly dismissed.

Appeal allowed.