2004 ALL MR (Cri) 2443
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.G. PALSHIKAR AND P.V. KAKADE, JJ.

Chindhu Salkaram Ladke Vs. State Of Maharashtra

Criminal Appeal No.508 of 2000

8th March, 2004

Petitioner Counsel: Ms. SHARMILA KAUSHIK
Respondent Counsel: Ms. U. V. KEJRIWAL

Evidence Act (1872), Ss.3, 24 - Penal Code (1860), S.302 - Appreciation of evidence - Extra-judicial confession - Murder case - Accused killing his wife - Accused making extra-judicial confession to his father (P.W.2) as well as his wife's father (P.W.1) about the murder - Deposition of these witnesses before court - Father of accused (P.W.2) not stating in his testimony of having disclosed extra-judicial confession by his accused son to the father of victim the P.W.1 - Held, such an omission or error is natural - Such contradictions or omissions occur in evidence and just for that contradictions it cannot be said that both these witnesses are stating falsely.

In the instant case, P.W.1 is the father of victim Parvati. He has deposed that the accused used to torture his daughter i.e. the victim and he tried to interfere on many occasions and that the accused did not mend his ways and ultimately this behaviour culminates in the accused murdering his wife. He has deposed that the father of accused came to his house and informed him that his daughter Parvati has been killed by the accused. He called the police patil and the Sarpanch and went to the place where the murder was allegedly committed. He saw the dead body of his daughter lying there with injuries on the head, ribs, hand and thigh. According to this witness the accused was present there and on being asked by the witness, the accused told him that he has assaulted Parvati by iron bars and killed her. It is therefore obvious, an extra-judicial confession made by the accused to the witness. This witness has been thoroughly cross examined. The cross-examination does not elicit anything which will require this court to discard the testimony of this witness to whom the extra-judicial confession was made. In fact P.W.2 Sakharam Ladake is also examined. He is the father of the accused. He states in his deposition that at about 8 a.m. on the fateful day the accused met him and told him that he has killed his wife. He then states that the parents of the victim Parvati came to the place. He admits to have met them and then speaks of Parvati died. In the cross-examination by the accused he has categorically stated that it is not true that the accused did not tell him i.e. the witness the accused killed his wife (Parvati). That is the only cross-examination of this witness. It is true that he does not state of having disclosed this extra-judicial confession by his son to P.W.1 the father of victim. But that omission or error is natural. Conversely it is also likely that somebody told P.W.1 about the murder. He thought that he was told by father of the accused. Factually when both these witnesses deposed before the court that the accused told that the accused killed the victim. Such contradictions or omissions assume in evidence and just for that contradictions it cannot be said that both these witnesses are stating falsely. [Para 6,7]

JUDGMENT

PALSHIKAR, J.:- Being aggrieved by the judgment and order of conviction passed on 10-3-2000 by the XI Additional Sessions Judge, Pune in Sessions Case No.139/96 convicting the accused under section 302 of IPC and sentencing him to suffer R.I. for life, the appellant has filed this appeal on the ground mentioned in the memo of appeal as also verbally canvassed by the learned counsel appearing on behalf of the accused/appellant.

2. With the assistance of the learned counsel for the defence and the learned Prosecutor we have scrutinised the evidence and have reappreciated the evidence on record.

3. The prosecution story as revealed from the reappreciation of the evidence stated briefly is that the accused, it is alleged that on 7-3-1995 at about 6 p.m. assaulted his wife Parvati with an iron bar which resulted in her death. When this matter came to the knowledge of father of Parvati, he lodged complaint with police on the basis of which enquiry was conducted, evidence was collected and the appellant was prosecuted for committing murder of his wife.

4. The prosecution examined as many as nine witnesses in support of its case that it is the accused who committed murder of his wife - the deceased. On appreciation of this evidence on record, the learned trial Judge came to the conclusion of guilt and with that conclusion he sentenced the accused to suffer imprisonment for life. It is this order of conviction and sentence which is impugned in this appeal as aforesaid.

5. It is the contention of the learned counsel appearing on behalf of the appellant that the evidence on record is insufficient and it is unsafe to rely on the extra-judicial confession made by the victim to his father P.W.1. According to the learned counsel P.Ws.3 and 5 have turned hostile. They could have thrown much light on what factually had happened and therefore the evidence on record as it stands is grossly inadequate to sustain the order of conviction. Repelling the argument the learned A.P.P. contended that there is no infirmity in the extra-judicial confession made by the victim to P.W.1 and in view of the fact that it is sufficiently corroborated, the order of conviction does not require any reconsideration.

6. P.W.1 is the father of victim Parvati. He has deposed that the accused used to torture his daughter i.e. the victim and he tried to interfere on many occasions and that the accused did not mend his ways and ultimately this behaviour culminates in the accused murdering his wife. He has deposed that the father of accused came to his house and informed him that his daughter Parvati has been killed by the accused. He called the police patil and the Sarpanch and went to the place where the murder was allegedly committed. He saw the dead body of his daughter lying there with injuries on the head, ribs, hand and thigh. According to this witness the accused was present there and on being asked by the witness, the accused told him that he has assaulted Parvati by iron bars and killed her. It is therefore obvious, an extra-judicial confession made by the accused to the witness. This witness has been thoroughly cross examined. The cross-examination does not elicit anything which will require this court to discard the testimony of this witness to whom the extra-judicial confession was made.

7. Infact P.W.2 Sakharam Ladake is also examined. He is the father of the accused. He states in his deposition that at about 8 a.m. on the fateful day the accused met him and told him that he has killed his wife. He then states that the parents of the victim Parvati came to the place. He admits to have met them and then speaks of Parvati died. In the cross-examination by the accused he has categorically stated that it is not true that the accused did not tell him i.e. the witness the accused killed his wife (Parvati). That is the only cross-examination of this witness. It is true that he does not state of having disclosed this extra-judicial confession by his son to P.W.1 the father of victim. But that omission or error is natural. Conversely it is also likely that somebody told P.W.1 about the murder. He thought that he was told by father of the accused. Factually when both these witnesses deposed before the court that the accused told that the accused killed the victim. Such contradictions or omissions assume (occur ?) in evidence and just for that contradictions it cannot be said that both these witnesses are stating falsely.

8. P.W.3 Kondiba has turned hostile. He was the witness to the quarrel between the accused and the deceased which took place prior to the accused hitting the victim. However nothing can be turned from the testimony of this witness who was declared hostile.

9. P.W.4 is the panch witness who saw the seizure of iron bar at the instance of the accused. He has proved the article in the court. This therefore is yet another circumstance which connect the accused to the crime. P.W.5 is another witness to the quarrel, who is also turned hostile.

10. P.W.6 is yet another witness who heard the father of the accused saying that the accused killed his wife. Therefore, if at all corroboration is not in the testimony of P.Ws.1 and 2 it can be found in the testimony of P.W.6. P.W.7 is the doctor who conducted the post-mortem and proved the homicidal death of the victim. P.W.8 is the PSI who recorded the FIR as lodged by P.W.1 and P.W.9 is the Investigating Officer.

11. It will thus be seen that in this case we have prospective statement in the court by three witnesses who say that the accused told each of them about the accused killing the accused's wife. They corroborate each other on all material particulars. We also have evidence of P.W.6 which certainly can be used as corroboration to the testimony of P.W.2 the father of the accused, or that of P.W.1 the father-in-law. The evidence of recovery of iron bar at the instance of accused is yet another circumstance, which gives credence to the testimony of P.Ws.1 and 2. In such circumstances, the order of conviction as passed by the trial Judge cannot be found fault with. The reasoning is correct. Marshalling of evidence is correct. We have therefore no cause to interfere with this conviction. In the result therefore the appeal fails and it is dismissed.

Appeal dismissed.