Bombay High Court
Nijam S/O Chindhu Tadvi vs The State Of Maharashtra on 10 August, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:17029-DB
CriAppeal-472-2016
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 472 OF 2016
Nijam S/o. Chindhu Tadvi,
Age - 33 years, Occ - Labour,
R/o - Fattepur, Tq. Jamner,
District Jalgaon ... Appellant
Versus
The State of Maharashtra ... Respondent
.....
Ms. Seema Gaikwad, Advocate h/f Mr. A. G. Talhar, Advocate for the
Appellant.
Mr. A. V. Deshmukh, APP for Respondent-State.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 28.07.2023
Pronounced on : 10.08.2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. By invoking Section 374 of the Code of Criminal Procedure
[Cr.P.C.], appellant Nijam Chindhu Tadvi is hereby questioning the
correctness, legality and sustainability of the judgment and order of
conviction dated 13.06.2016 passed by learned Sessions Judge,
Jalgaon in Sessions Case No. 37 of 2015.
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-2-
BRIEF CASE OF PROSECUTION IN TRIAL COURT IS AS UNDER:
2. Deceased Chayabai resided with her husband [informant] and
family at Fattepur. Her one son resided at Jamner for education,
whereas remaining son and daughter resided at Fattepur itself. Both
children used to go to school.
3. On 10.12.2014, informant's daughter went ahead to attend
school and thereafter, informant left for work keeping behind his son
Rohit and wife Chayabai. It is the case of prosecution that between
7.00 a.m. to 7.30 a.m., appellant-convict entered the house of
informant. He abused informant's wife Chayabai and after giving her
fist blows, he used a crowbar kept behind cupboard, for hitting it on
her head and thereafter whisked out knife from his pocket and
stabbed deceased Chayabai.
4. The above incident was reported by PW2 informant Ramlal, on
the strength of which, police registered crime. Investigation was
entrusted to PW8 API Ganesh Kadam, who after completing the same,
chargesheeted accused. On assignment of sessions case before learned
Sessions Judge, Jalgaon, trial was conducted and on appreciating the
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-3-
oral and documentary evidence on record, learned trial Judge held
the case of prosecution as proved and thereby convicted and
sentenced appellant to suffer life imprisonment for commission of
offence punishable under Section 302 of the Indian Penal Code [IPC].
It is the above judgment and order of conviction, which is now
assailed before us on various grounds mentioned in the appeal memo.
SUBMISSIONS
On behalf of the appellant:
5. Learned counsel for the appellant would submit that
prosecution had miserably failed to prove the charges. According to
learned counsel, except the sole testimony of a child witness, there is
no other evidence on record about seeing appellant entering the
house of deceased, beating her, stabbing her and committing her
murder. Learned counsel emphasized that PW4 Rohit, a child witness,
had no occasion to see the incident as he had already left the house.
Taking us through the testimony of child witness, he submitted that it
is abundantly clear that the child was not available in the house and
rather, had been to school and therefore he had no occasion to see the
incident.
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-4-
6. It is further submitted that the child has been subsequently
tutored to depose and accordingly, the child has deposed and the
same is unfortunately taken into consideration and even relied by
learned trial Judge. He would point out that law is fairly settled that
testimony of child witness ought not to be accepted without sufficient
corroboration and here, there was no corroboration, but still learned
trial Judge has relied on the testimony of child witness and has held
appellant guilty.
7. It is further pointed out that even evidence of prosecution does
not remotely suggest as to on what count appellant allegedly killed
deceased. It is submitted that, therefore, motive has not been
established by prosecution.
8. It is further submitted that even so-called recovery is not free
from doubt as weapon knife is allegedly recovered from other's
property and at the behest of other person and therefore, same cannot
be applied to the appellant. Learned counsel would submit that
evidence of prosecution was very weak and insufficient to implicate or
held appellant guilty. Learned trial Judge failed to consider and
appreciate the settled legal position and having erred by recording
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-5-
guilt, he prays to allow the appeal by setting aside the judgment
under challenge.
On behalf of the State:
9. In answer to above, learned APP would submit that no doubt,
case of prosecution is based on testimony of child witness, but
according to him, the child has narrated whatever he saw. Child's
evidence indicates that he merely left the house to go to school, but
seeing appellant entering his house, the child had returned back and
he had seen his mother being assaulted. That, child reported his
father, who was informed by one person about the incident and
prompt report has been lodged. The testimony of child witness has
remained unshaken and the child has denied that he was tutored.
Therefore, there is no hurdle to accept such evidence and hence,
according to learned APP, learned trial court has correctly relied on
the said testimony.
10. It is further pointed out that there is recovery and discovery at
the instance of accused. Scientific evidence also connects appellant.
That, there being strong evidence, it is submitted that no error
whatsoever has been committed by learned trial Judge in accepting
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-6-
the case of prosecution as proved and hence, he prays that appeal be
dismissed.
11. Here, we are dealing with first appeal wherein we are, in the
capacity of last fact finding court, expected to re-appreciate, re-
analyze and re-examine the entire evidence. Resultantly, on doing so,
we have found that prosecution has rested its case on the testimonies
of eight witnesses.
EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT
Role, status and sum and substance of their evidence is
summarized as under:
PW1 Tanaji Ganpat Dhande, Pancha to recovery of knife vide
Exhibit 14. He spoke about the spot being pointed out by one
Sarvar, where, according to Sarvar, accused had concealed the
knife and about knife being recovered from a heap of ash and
seized vide panchanama Exhibit 14.
PW2 Informant Ramlal Ganbas stated that deceased was his wife.
Out of his two sons, one son stayed at Jamner while other son
and a daughter stayed with him and his wife. On 10.12.2014,
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-7-
his daughter Pooja left for school and this witness went to
Takali for driving tractor. When he left, his wife Chayabai and
son Rohit were in the house. Around 7.00 a.m. to 7.30 a.m.,
he received information from his employer about untoward
incident taking place in his house and so he returned back and
found his wife lying in pool of blood in injured condition, with
an injury on the right side of her abdomen. According to him,
his son Rohit told that accused had come, initially dealt fist
blows on the nose and thereafter, stabbed her by knife and
had ran away from the backside door and therefore, he lodged
report.
PW3 Maksood Gafur Deshpande, pancha to spot panchanama
Exhibit 20, deposed to the extent of drawing spot panchanama
which he identified to be at Exhibit 20.
PW4 Child witness Rohit Ganbas, aged 13 years, stated that the
incident took place on 10.12.2014 around 7.00 a.m. He got
ready to go to school, went towards Hanuman temple and
stood there. He saw accused entering their house and so, he
claims that, he followed accused. According to him, accused
sat on a cement bag in the house. His mother was cooking
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-8-
food. Accused abused her in filthy language and when his
mother went out of back door, accused picked up a crowbar
from behind the cupboard, dealt a blow on the head of his
mother and thereafter gave fist blows on her nose, took out a
knife from his pant pocket and stabbed his mother in stomach
and ran away. He stated that he raised hue and cry but
nobody came and so he ran to school and came back with
sister Pooja. He identified both, accused and weapons i.e.
knife as well as crowbar.
PW5 Mukesh Chaudhari, pancha to seizure of clothes of deceased
Exhibit 25, also pancha to memorandum of disclosure Exhibit
27 and recovery and discovery by accused vide Exhibits 28
and 29.
PW6 Police Constable Ramdas Kumbhar is carrier of muddemal.
PW7 Dr. Ravindra Patil, autopsy doctor, who on conducting
postmortem, issued report Exhibit 38 recording death due to
hemorrhagic shock due to multiple injuries. He also opined
that injuries are possible by sharp edged weapon as well as
pointed weapon like articles "A" and "B".
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-9-
PW8 API Ganesh Kadam is the Investigating Officer.
12. On hearing learned counsel for the appellant, the following
grounds are raised for questioning the judgment and order of
conviction;
i] Firstly, there is no motive,
ii] Secondly, except testimony of child witness, which
cannot be relied in absence of other corroborative piece
of evidence, there is no other independent corroborative
evidence.
iii] Thirdly, recovery is doubtful, being not at the instance
of accused and even from abandoned place and from
other's property.
13. In the light of above grounds raised before us, we undertake
the exercise of re-appreciating the entire evidence adduced by
prosecution.
14. As regards homicidal death of Chayabai is concerned, taking
into account the substantive evidence of autopsy doctor PW7 Dr.
Ravindra Patil, who narrated about external and internal injuries
noticed by him, nature of injuries, site of injuries and even taking into
account the nature of his cross, we are also of the opinion that death
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-10-
of Chayabai is shown to be not only unnatural, but homicidal one.
The manner of questioning and suggestions put to autopsy doctor
goes to show that a defence about accidental fall on a sharp object
while standing on stool is tried to be put forth for suffering the above
injuries, however, scene of occurrence panchanama belies such
defence and therefore, there is no hesitation to hold that deceased
met only and only homicidal death.
15. In view of above, now it becomes incumbent upon us to get
satisfied beyond reasonable doubt that accused is the author of fatal
injuries suffered by Chayabai.
16. As stated above, informant PW2 Ramlal has received details of
the occurrence from his son PW4 Rohit, a child witness. Therefore,
there being no other independent witness, case of prosecution hinges
entirely on the testimony of child witness PW4 Rohit. Evidence of
informant PW2 Ramlal shows that said child witness was studying in
school and was accompanying his sister Pooja at around 7.00 a.m.
However, informant PW2 Ramlal in his substantive evidence is very
categorical that initially, his daughter Pooja left the house to go to
school and thereafter he left and his wife Chayabai and son Rohit i.e.
PW4 only remained back in the house.
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-11-
17. Before proceeding to test the child witness evidence, it would
be useful to first give a brief account regarding law on the manner of
appreciation of evidence of child witness and its evidentiary value.
There are various landmark pronouncements on above aspect and a
few could be named as under:
In Mangoo and another v. State of Madhya Pradesh; AIR 1995
SC 959, the Hon'ble Apex Court while dealing with the evidence of a
child witness observed that;
"There was always scope to tutor the child, however, it
cannot alone be a ground to come to the conclusion that
the child witness must have been tutored. The Court must
determine as to whether the child has been tutored or
not. It can be ascertained by examining the evidence and
from the contents thereof as to whether there are any
traces of tutoring."
In the case of Dattu Ramrao Sakhare v. State of Maharashtra;
1997 (5) SCC 341, Hon'ble Apex Court held that;
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-12-
"A child witness if found competent to depose to the facts
and reliable on 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 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."
In Ratansinh Dalsukhabhai Nayak v. State of Gujarat; (2004) 1
SCC 64, the Hon'ble Apex Court held that;
"Child witness - evidence of - conviction on the basis of -
held, permissible if such witness is found to be competent
to testify and the court after careful scrutiny of its
evidence is convinced about the quality and reliability of
the same."
The Hon'ble Apex Court in the case of Gagan Kanojia and
another v. State of Punjab; (2006) 13 SCC 516 has ruled that,
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-13-
"Part of statement of child witness, even if tutored, can be
relied upon, if the tutored part can be separated from the
untutored part, in case such remaining untutored part
inspires confidence."
In Nivrutti Pandurang Kokate and ors. v. State of Maharashtra;
AIR 2008 SC 1460, the Hon'ble Court dealing with the child witness
has observed as under;
"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, shaped 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."
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-14-
In a celebrated case of Hari Om v. State of U.P.; (2021) 4 SCC
345, very recently the Hon'ble Apex Court, in para 22 of this
judgment, has spelt out legal principles, summarized the evidentiary
value of child witness, effects of its discrepancies, and duty of court
and corroboration when to be insisted upon, which we borrow and
quote here:
"22. The evidence of the child witness cannot be rejected
per se, but the court, as a rule of prudence, is require to
consider such evidence with close scrutiny and only on
being convinced about the quality of the statements and
its reliability, base conviction by accepting the statement
of the child witness. If the child witness is shown to have
stood the test of cross-examination and there is no
infirmity in her evidence, the prosecution can rightly
claim a conviction based upon her testimony alone.
Corroboration of the testimony of a child witness is not a
rule but a measure of caution and prudence. Some
discrepancies in the statement of a child witness cannot be
made the basis for discarding the testimony. Discrepancies
in the deposition, if not in material particulars, would
lend credence to the testimony of a child witness who,
under the normal circumstances, would like to mix up
what the witness saw with what he or she is likely to
imagine to have seen. While appreciating the evidence of
the child witness, the courts are required to rule out the
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-15-
possibility of the child being tutored. In the absence of any
allegation regarding tutoring or using the child witness for
ulterior purposes of the prosecution, the courts have no
option but to rely upon the confidence inspiring testimony
of such witness for the purposes of holding the accused
guilty or not. The evidence of the child witness must be
evaluated more carefully and with greater circumspection
because a child is susceptible to be swayed by what others
tell him and thus an easy prey to tutoring. The evidence of
the child witness must find adequate corroboration before
it is relied upon, as the rule of corroboration is of practical
wisdom than of law."
18. Bearing in mind above settled legal position, we have
undertaken the exercise of re-analyzing the testimony of PW4 Rohit.
In para 11 of our judgment, we have already reproduced the
entire examination-in-chief of the said child witness.
The child in cross answered that his school timing is from 7.00
a.m. to 12.00 noon. He answered that he used to go regularly to
school. He gave the strength of his class as 60 students and his roll
number to be 34. After answering about the interval time, he gave
name of his class teacher. In para 7 of his cross, he stated that he is
able to understand direction and thereafter he faced cross and
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-16-
answered that to the west of his house, there is a road; to the south
there is house of Subhash Mistry. He admitted that surrounding their
house, there are houses from all sides. He flatly denied that on the
day his brother Vaibhav was also in the house. He admitted that he,
his sister Pooja and their friends used to go to school at 7.00 a.m. and
return at 12.00 noon. Then he is questioned about vices of his father
and quarrels between his parents which he had candidly admitted it.
However, he flatly denied that after his father went, number of
persons visited his mother. He admitted that he knew accused
because his house is just in front of their house. He is unable to state
whether accused was a mason and that he used to stay out of house
for days together. He admitted that he has accompanied his father on
the previous date to the court when his father gave evidence. He
again flatly denied that his father tutored him as to how evidence is to
be given. He also denied that his father frequently read over his
statement and asked him to give evidence before the court as per such
statement. In further cross, he answered that on the day of incident,
he was getting ready to go to school, but he denied that on that day,
early in the morning, there was any heated exchange between his
parents. He denied that during quarrel, some persons used to threaten
his mother. He also denied that after he left for school, somebody
stabbed his mother. The rest is all denial.
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-17-
19. It is tried to be submitted by learned counsel for appellant that
even evidence of PW4 child witness shows that he had gone out of
house. In our view, his testimony is required to be examined in
entirety, which shows that though the child went out of the house, he
further claims that he was near the Hanuman temple, which is just in
front of their house, and then he saw accused entering his house and
therefore, he claims to have come back and seen his mother being
abused, initially hit with a crowbar on head and thereafter stabbed
and accused running away. Child also states that he raised hue and
cry but nobody came to his rescue.
20. We have also noticed that he confirmed that he understood the
directions and thereafter gave geographical directions of his house. In
para 8 he is found to be candidly admitting that his father frequently
consumed liquor, but he flatly denied that due to consumption, he did
not go out for work. Though he admitted that there were quarrels
between his parents on account of demand of money for liquor, he
denied that after his father went, number of persons used to visit his
mother. He answered that he knew accused because he stayed in
front of their house. To a suggestion he has flatly denied that he has
been tutored as to how to give evidence and that in the house, his
father frequently read over statement and directed him to give
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-18-
evidence accordingly. He has flatly denied that on the day of the
incident, in the morning, there was any heated quarrel between his
parents and his father questioning his mother about visits of outsiders
and that there used to be quarrel between his mother and such
persons. He flatly denied that he was in the class and his attendance
has been marked by teacher and he denied that he is falsely deposing.
Consequently, in our considered opinion, taking into
consideration the age of the child, the manner of answering the
questions raised in cross, his testimony cannot be discarded. For
above reasons, his testimony instills confidence. Possibility of tutoring
has been completely ruled out by the very child. Therefore, there is no
hesitation to take recourse to the same.
21. We find it pertinent to note that the child has testified about
assault on head and stabbing in abdomen. For getting assurance to
that extent, we have carefully gone through the medico legal expert's
evidence and the PM report. The injuries noticed and noted by
autopsy doctor are as under:
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-19-
19. Head-
(i) Injuries under the scalp, Haematoma 4x4 cm, just
their nature. above left eye
(ii) Skull - Vault and base Fracture of frontal bone on
describe fractures, their left side.
sites, dimensions,
directions etc.
(iii) Brain- The appearance of its Extradural as well as
coverings, size, weight and intradural haematoma about
general condition of the organ 100 gram just below above-
itself and any abnormality found fracture site.
in its examination to be carefully - Brain pale.
Noted
21. Abdomen-
Walls - Spindle shape, sharp edges with 2 cm length
perforating injury at right lumber region
anteriorly horizontal in position with fat and
intestine coming from it.
Peritoneus - Round shape, perforating injury, 1 cm in
dimension at lateral abdominal wall, just above
left iliac crest.
Cavity - Peritoneal cavity full of blood, 2-3 litre which is
draining from left sided wound.
Kidneys with - Injuries seen to both renal vessels, shows
weight intra peritoneal hemorrhage on right side and
extra peritoneal on left side.
Therefore, here ocular account finds support from the medical
evidence. Therefore, there is no reason to doubt version of
prosecution.
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-20-
22. It is true that recovery evidence is not completely free from
doubt as, by examining PW1 Tanaji, knife has been shown to be
recovered however, testimony of this witness shows that he had learnt
about the spot of hiding knife from one Sarvar. Such person is not
examined. But, by examining PW5 Mukesh, memorandum of
disclosure at the instance of accused regarding his readiness to show
spot of hiding crowbar, clothes and the spot of hiding knife, is
brought on record by prosecution. The article crowbar is recovered
from a specific spot like dargah and it is not mere open spot or a no
man's land. Knife was recovered with blood stains as well as ash
remains. But still, though the recovery of knife is coming under
shadow of doubt, there is recovery of other article crowbar and
clothes on the person of accused on the day of incident recovered at
his instance. Scientific evidence at Exhibit 52 shows that knife and
ash were subjected to analysis and results showed that ash adhered to
the knife tallied with the ash kept in a polythene bag packet Exhibit 8.
Blood is also analyzed and found to be of human. Therefore, though
little, there is some evidence in that regard.
24. Even otherwise, if recovery evidence is kept out of
consideration, still, in the light of availability of trustworthy ocular
account of child witness, which is finding support from the medico
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-21-
legal expert's evidence on the point of site of injuries, case of
prosecution can still be accepted and relied.
25. It has been vehemently submitted before us that prosecution
has failed to establish motive. In our opinion, when a case is based on
direct eye witness account, motive becomes insignificant.
26. It is also tried to be posed before us that material witnesses like
Pooja i.e. sister of PW4 Rohit to be not examined. On this count, if we
visit testimony of father PW2 Ramlal, we find him categorically
stating about his daughter Pooja to have left the house in the morning
and after her, he claims that he went to Takali and at that time, his
wife Chayabai and son Rohit were present in the house. Even child
states that after seeing the occurrence, he ran to school and brought
his sister from school. Therefore, no purpose would have been served
by examining Pooja.
SUMMATION
27. To sum up, here, case of prosecution hinges on the sole
testimony of child witness PW4 Rohit. We have carefully and with
abundant caution re-examined the entire examination-in-chief of the
child witness. We are finding it to be free from tutoring. The child has
::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::
CriAppeal-472-2016
-22-
withstood cross without getting shaken. He has confidently answered
the questions and has refuted suggestions put to him. Resultantly, we
are convinced that prosecution has established the charges.
28. We have carefully gone through the impugned judgment.
Learned trial Judge has correctly appreciated child witness account
and has relied on the same for accepting the case of prosecution. Law
on appreciation of child witness evidence is taken into consideration.
Consequently, we do not find any reason to interfere in the findings
reached at by learned trial Judge. Hence, we proceed to pass the
following order:
ORDER
The appeal is hereby rejected.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.] vre ::: Uploaded on - 10/08/2023 ::: Downloaded on - 11/08/2023 09:51:23 :::