KAILASH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Vide above appeal, convict Kailas Waghmare is assailing the judgment and order of conviction dtd. 26/10/2016 passed by the learned Additional Sessions Judge, Bhokar, District Nanded in Sessions Case No.38 of 2014, holding appellant guilty for offence punishable under Sec. 302 of Indian Penal Code (IPC) and thereby sentencing him to suffer imprisonment for life and to pay fine. FACTUAL MATRIX

(2.) Convict - appellant returned home and demanded food from deceased wife. That time, PW8 Roshan, their child was present in the house. Deceased suggested appellant convict to eat food prepared in the morning, but assured to prepare fresh food after sometime. Appellant got enraged, went to another room, only to return with the axe. Initially, he gave blow with the handle of the axe on her back and thereafter gave blow on the back side of ear of his wife. She collapsed. Appellant took his son PW8 Roshan and attended police station and gave information. The Investigating Officer got the information verified by sending PW4 Bhimrao to the spot. He returned and gave FIR on behalf of State. On the basis of which, crime was registered and subsequently investigated and accused was duly charge-sheeted. Learned Additional Sessions Judge, Bhokar, who, conducted the trial, appreciated the evidence adduced by the prosecution and held the charges proved and convicted appellant to suffer life imprisonment for the offence punishable under Sec. 302 of IPC, which is now precisely assailed by filing instant appeal. SUBMISSIONS On behalf ofappellant :

(3.) Learned counsel for appellant would point out that apparently implication is false. According to him, prosecution claims that accused himself gave confession. That, if it so when accused himself allegedly went to police station and reported about cognizable offence, police machinery ought to have recorded FIR, but, such steps were not taken and rather PW4 Bhimrao was sent to verify and thereafter FIR has been lodged and so there is every possibility of false and concocted story set up by prosecution. He further pointed out that, even otherwise, FIR is lodged after delay. He further questioned the story of prosecution by submitting that there is no independent eye witness account, except testimony of child witness, who admittedly was in the custody of maternal uncle, and therefore, he was a tutored witness. That, there is no independent corroboration to the testimony of child witness, and therefore, it is his submission that law does not permit accepting and relying testimony of child witness in absence of corroboration. He further submitted that even statement of child is not recorded in spite of the child to be present and available in the police station for the entire night. There is no explanation for not recording his statement. He further submitted that there was no motive and the same has not been established by prosecution. He further pointed out that it is the case of prosecution that PW4 Bhimrao went and broke the lock, but no distinct panchanama was recorded to that extent. Even no neighbour has been examined by prosecution, but still with such weak evidence on record, it is his submission that, learned trial Judge has accepted prosecution version and further recorded guilt. According to him, there is improper appreciation of available evidence as well as settled legal position while appreciating child witness account and hence according to him, findings reached at by learned trial Judge cannot be said to be legally sound and he prays for allowing the appeal. On behalf of State :