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.

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 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.

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 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,