IMPORTANT POINTS
(1) A relative of victim may not necessarily be hostile to accused. Close relationship of a witness with victim is not a ground to discard his testimony.
(2) Attempt to murder – What is required by prosecution to establish is that accused had requisite intention or knowledge that if successfully executed alleged act would have caused death.

JUDGMENT (ORAL)

Chandrashekhar, J.—Bengabad PS Case No. 144 of 2009 was registered on the basis of the fardbeyan of Chandawa Devi which was recorded at about 9:45 AM on 16.11.2009 near her house. The informant is mother of Prince Verma, the deceased. She has alleged that the appellant who is her sister-in-law has thrown her son in a nearby well and the doctor who has conducted the post-mortem examination has stated that Prince Verma has died due to asphyxia on account of drowning in the water. After the investigation, a charge-sheet was filed and the appellant has faced the trial on the charge of committing murder of Prince Verma.

2. In S.T. No. 113 of 2010, the learned Additional Sessions Judge, Giridih has held that ocular evidence of the prosecution witnesses that the appellant with an intention to commit murder of Prince Verma has thrown him in a well is corroborated by medical evidence which confirms cause of death as asphyxia due to drowning. Accordingly, the appellant has been convicted and sentenced to RI for life under Section 302 of the Indian Penal Code.

3. PW-3, Chandawa Devi is sister-in-law of the appellant. PW-2, PW-6, PW-7 and PW-8, the co-villagers, are the eye-witnesses; they are related to the informant. The defence has examined two witnesses, namely, Tejani Devi who is sister-in-law of the informant and Surendra Verma who is father of the deceased-child.

4. The case of the prosecution is that there was constant quarrel between the informant and the appellant who on account of her matrimonial discord was residing at her parents’ place and due to her annoyance with the informant she has thrown her son in the well in the morning of 16.11.2009. PW-3, the informant is not an eye-witness. She has deposed in the Court that when she came back home from the temple after offering worship, PW-2, PW-6 and PW-8 informed her that Gudia Devi has killed her son. She has stated that the appellant was staying with her family because of her own matrimonial dispute and on various domestic issues she has quarreled with her. She has further deposed that the appellant was threatening to teach a lesson to her. PW-2 has stated that in the morning of 16.11.2009 she was near the well. At that time PW-6 and PW-8 were also around. She has seen the appellant carrying the child near the well and suddenly she threw him in the well. By the time she could intervene and raise hulla the appellant had sneaked inside the house. PW-6 and PW-8 have also deposed in the Court that they have seen the appellant carrying Prince Verma, a minor child aged about 5-6 years, and throwing him in the well. PW-4 had stated that when hulla was raised he rushed to the well and brought out Prince Verma from the well. In his examination-in-chief, he said that he cannot remember whether the child was dead or alive when he was taken out from the well and therefore he was declared hostile at the instance of the prosecution. PW-5 is also a co-villager. In the morning of 16.11.2009 he was sitting outside his house and he has seen the appellant carrying the child. He stated that after sometime he saw the appellant returning home but at that time the child was not with her. In the meantime he heard hulla and rushed towards the well. He has said that Prince Verma was lifted out from the well; he was aged about 4-5 years and; he was found dead. PW-7 has also stated that on hearing hulla he had gone near the well and there he heard PW-2 and PW-8 saying that the appellant has thrown the child in the well.

5. The appellant has taken a defence that in the morning of 16.11.2009 Chandawa Devi had gone to temple to offer prayer. At that time her children were sleeping. Prince Verma when woke-up did not find his mother around so he went outside the house and while searching for his mother when he came across the well he fell down and slipped in the well. In her cross-examination PW-2 has stated that granddaughter of Hiro Mahto had fallen in the well and she herself has also