IMPORTANT POINT
Murder of Stepmother – Adverse inference must be drawn against prosecution for not examining material witnesses.

JUDGMENT :

Abhay S. Oka, J.

1. The Sessions Court convicted the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code (for short, ‘IPC’) for committing the murder of Smt Hemwati Bai, who was his stepmother. Appellant was sentenced to undergo life imprisonment. By the impugned judgment, the High Court has dismissed the appeal preferred by the appellant.

FACTUAL ASPECT

2. The case of the prosecution in brief is that the appellant had a land dispute with the deceased. The allegation against the appellant is that on 2nd March 2013, he assaulted the deceased. After that, he caught hold of the deceased by her hair and dragged her up to the village pond. The appellant put her head inside the pond water. The deceased was suffocated to death. The first informant–Darshu, PW-4, informed the police that Hemwati Bai died due to drowning. Accordingly, a First Information Report (for short, ‘FIR’) was registered. After the completion of the investigation, a chargesheet was filed against the appellant. The prosecution examined ten witnesses. There is no direct evidence. The prosecution relied upon evidence of PW-1, Sukhmani Bai, the village officer. The prosecution case is that the appellant made an extra-judicial confession before the witness. The prosecution relied upon the evidence of PW-5, Chaprasi, the deceased's brother. According to PW-5, he saw the appellant holding the hair of the deceased and was taking her towards the pond. Though PW-1 was declared hostile, the Trial Court and High Court relied upon a part of her testimony. The Courts also believed the testimony of PW-5.

SUBMISSIONS

3. Shri Shridhar Y. Chitale, learned counsel appearing for the appellant as amicus curiae, has taken us through the postmortem report and testimony of relevant prosecution witnesses. Based on the evidence of PW-9, Dr Pankaj Kishore, his submission is that the death was due to drowning, and the prosecution has not discharged the burden on it to prove that it was a homicidal death. He submitted that evidence of PW-1, who was declared as hostile, cannot be believed as in the examination-in-chief, the witness did not depose that the appellant made a confession of killing the deceased. However, in the cross-examination made by the public prosecutor, the witness purportedly stated that the appellant confessed before her about killing the deceased. He submitted that evidence of PW-1 cannot be believed. As regards the evidence of PW-5, he stated that though the witness deposed that he saw the appellant dragging the deceased towards the pond, PW-2 – Bisoha, who was allegedly present at that time, did not support the prosecution. Moreover, another witness, Lakhan, was allegedly present there and was not examined by the prosecution. He pointed out that the incident happened in the evening and PW-10, Investigating Officer admitted that there is a temple near the house of the deceased and other people lived nearby. He would, therefore, submit that the prosecution has failed to prove the appellant's guilt beyond a reasonable doubt.

4. Shri Prashant Singh, learned counsel appearing for the respondent State, submitted that in her cross-examination made by the public prosecutor, PW-1 has clearly deposed about the confessional statement made by the appellant. He submitted that evidence of a hostile witness need not be rejected in its entirety and that the Court can always rely upon a part of the testimony of such a witness. He submitted that the evidence of PW-5 proves that the appellant was last seen together with the deceased, and at that time, he was holding the deceased by her hair. He submitted that this evidence is sufficient to hold that the death of the deceased is homicidal. He submitted that in view of the oral testimony of the said two witnesses, the appellant's guilt has been established.

CONSIDERATION OF SUBMISSIONS

5. We have carefully perused the evidence of prosecution witnesses and other documents on record. The prosecution is re