The reliability of the injured witness's evidence, the need for caution in evaluating a child witness's testimony, and the consideration of mitigating circumstances in determining the sentence.

Headnote:
Death Penalty - Murder - Section 302 I.P.C. - Summary
Fact of the Case:

The appellant was convicted for the murder of his daughter and attempting to murder his other daughters. The evidence included the recovery of blood-stained clothes and the recovery of the dead body on the pointing out of the appellant.
Finding of the Court:

The court found the appellant guilty based on the ocular account furnished by the injured daughter and the incriminating circumstantial evidence. The court concluded that the death penalty was not justified and commuted the sentence to life imprisonment.
Issues: The court considered the reliability of the injured daughter's evidence, the incriminating circumstantial evidence, and the justification for the death penalty.
Ratio Decidendi: The court emphasized the reliability of the injured witness's evidence and the need for caution in evaluating a child witness's testimony. The court also considered the mitigating circumstances and the need for a just balance between aggravating and mitigating circumstances in determining the sentence.
Final Decision: The court commuted the death penalty to life imprisonment and directed the sentences to run concurrently.

JUDGMENT - VISHNU SAHAI, J.:---Since Confirmation Case No. 2 of 2000 and Criminal Appeal No. 222 of 2000 arise out of the same set of facts and are directed against a common judgment, we are disposing them off by one judgment.

Through his judgment dated 2nd February, 2000 passed in Sessions Case No. 1327 of 1996, the IInd Additional Sessions Judge, Kalyan convicted and sentenced Raju Dadaba Borge in the manner stated hereinafter :---

(i) Under section 302 I.P.C. to death penalty to be hanged by neck till dead (for the murder of his daughter Sangita aged 1½ years) and to pay a fine of Rs. 10,000/- in default to suffer two years R.I. ;

(ii) Under section 307 I.P.C. for attempting to commit the murder of his two daughters Sangeeta and Pooja, to ten years R.I. and pay a fine of Rs. 5000/- on each count, in default to suffer R.I. for two years :

Vimlabai Raghunath Chandane P.W. 1 had four sons and two daughters. Her daughter Baby @ Laxmi was married to Raju Dadaba Borge (hereinafter referred to also as the accused - appellant and the appellant) about ten years prior to the incident. They had three daughters namely Sangeeta P.W. 6 aged 8 years, Pooja aged four years and Soni (deceased) aged 1½ years and were residing at Sonwadi Taluka and District Nagar. About a month prior to the incident, Baby Laxmi came to Vimlabai's hut situate at Balkanji Bari, Saibaba Colony, Ulhasnagar - 3. She told Vimlabai that the appellant was not doing his job ; consuming liquor; and beating her. Next day, the appellant also came to Vimlabai's hut and after picking up a quarrel with Baby went to his native place. After 8 to 15 days, he again returned, patched up with Baby and started residing with Vimlabai but, since old habits die hard, he kept on consuming liquor and picking up quarrels with Baby on petty issues. He used to always say that he was not the father of these girls.

On 28-10-1995, there was a quarrel between the appellant and Baby @ Laxmi. Consequently, on the night of 28th/29th October, 1995 at 12.30 a.m. the appellant left along with Baby @ Laxmi.

On 2-11-1995, at 8.30 a.m. Mangala Bondave P.W. 5 went to answer the call of nature in the open shrubs in the ground known as M.S. Quarters and saw two girls lying in a unconscious and injured condition and heard the sound of cries. She went to the police outpost and gave the necessary information vide Exhibit 27.

The information conveyed by Mangala Bondave was conveyed by the police to Vimlabai P.W. 1 the same morning at 9/9.30 a.m. and she immediately proceeded to Central Hospital, Ulhasnagar to see her grand daughters. She saw two of them namely Sangeeta and Pooja. The third Soni (deceased) was not there. She informed the police that Sangeeta and Pooja were her grand daughters. Vimlabai lodged her F.I.R. Exhibit 15 on the basis of which Crime No. 159 of 1995, under sections 307/201 I.P.C., was registered at Central Police Station by P.S.I. Suryavanshi.

After regaining consciousness, Sangeeta was interrogated and as is manifest from parts A and B of her statement under section 161 Cr.P.C. with which she was contradicted, she gave ocular account of the incident.

3. The evidence of Sr. P.I. Ashok Kamble P.W. 10 shows that the same morning (morning of 2-11-1995) Head Constable Jagtap arrested the appellant and brought before him. He drew the arrest panchanama of the appellant Exhibit 17 and in the presence of public panchas Anil Rajput P.W. 2 (who turned hostile) and Dipak Jadhav P.W. 1 recovered the blood stained clothes of the appellant namely pant, banian and shirt, under a panchanama.

The evidence of Sr. P.I. Ashok Kamble further shows that on the same date (2-11-1995) the appellant during the course of his interrogation stated that he could show the place where he had thrown the dead body of his youngest daughter Soni @ Anjali. Consequently, P.I. Kamble called for two public panchas out of whom one namely Devidas Jamdar P.W 7 has been examined. In his presence, he recorded the willingnes

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