JUDGMENT :

Abhay S. Waghwase, J.

1. Feeling aggrieved by the judgment and order of conviction dated 02.11.2016 passed by learned Additional Sessions Judge, Ambajogai, Dist Beed in Sessions Case No.72 of 2015, thereby holding appellant guilty for offence under section 302 of Indian Penal Code (IPC), accused has filed instant appeal by invoking section 374(2) of the Code of Criminal Procedure (Cr.P.C.).

PROSECUTION CASE IN TRIAL COURT

2. Appellant son of PW3-Damu had three daughters, namely Nikita, Nakula, Sangita and a son, namely Sunil. He did not work for his living and was rather addicted to liquor. As a result, there used to be quarrels between him and his wife and she resultantly left the children and went to stay with her parents with daughters, namely Nakula and Sangita, whereas deceased Nikita and son Sunil were put up with PW3 Damu – grandfather.

3. According to prosecution, on 10.07.2015, accused went to fetch his wife back, but she did not return. As a result of which, accused was frustrated and annoyed. On 10.07.2015, after dinner appellant went to PW3 Damu and declared that he would finish one by one. He thereafter took Sunil and Nikita to his house. According to prosecution, in night in his room he sat on the chest of his daughter Nikita and manually strangulated her to death.

4. PW3 Damu approached police, who arrived at the house of accused and shifted Nikita to hospital. However, on examination she was declared dead. On the basis of report lodged by PW3-Damu, Ambajogai (City) police station registered crime bearing no.123 of 2015.

On completion of investigation, appellant was chargesheeted and charge (Exh.4) was explained. On denial of charge trial was undertaken, during which prosecution has examined in all 9 witnesses and relied on documentary evidence.

After hearing both sides, learned trial court appreciated the oral and documentary evidence and reached to a conclusion that prosecution has established the charges and accordingly awarded life imprisonment, which is now questioned before us by virtue of present appeal.

SUBMISSIONS

5. According to learned counsel for appellant, implication and conviction is in absence of cogent and reliable evidence. According to him, there is no independent evidence in support of accusations. That, nobody had seen accused in the house so as to invoke section 106 of Evidence Act. He pointed out that entire case of prosecution is based on child testimony, but it being tutored, ought not to have been relied. He submitted that, at the outset, prosecution has failed to establish motive. Learned counsel pointed out that prosecution witnesses have en-bloc turned hostile. Therefore, when there was no evidence, he questioned as to how conclusion of guilt of accused has been reached at by learned trial Judge. He would submit that, apparently there is non application of mind and apart from non appreciation of evidence in its proper perspective, there is failure on the part of learned trial Judge in applying the settled law. Resultantly, according to him, such judgment of conviction in absence of sound reasons deserves to be set aside, by allowing the appeal.

6. While refuting the above submissions, learned APP would submit that though most of the witnesses including informant have not supported the prosecution case, he would point out that, so much part of their testimonies which corroborates and supports the case of prosecution can definitely be relied. He pointed out that such witnesses have partly supported prosecution, and therefore, it is open for the prosecution to take recourse to the same.

He next submitted that, testimony of child witness is intact and is worthy of credence. It is not shown to be tutored. Therefore, on the strength of child witness account, who was very much present at the time of alleged incident, the only conclusion was that accused is responsible for the homicidal death and is thereby rightly convicted and he prays for dismissal of the appeal.

7. In the light of above su