Part of hostile witness’ testimony found trustworthy can be taken into consideration; man convicted for son’s murder on wife’s hostile testimony

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. dismissed an appeal filed against the judgment of the trial court whereby the appellant was convicted for the offence punishable under Section 302 IPC.

The appellant was convicted for the murder of his son. On the fateful day of the incident, wife of the appellant came back home from selling fish and saw that her husband and her son were quarreling as the husband had given the food meant for her, to some other person. Later, the convict and his wife went to sleep on the mezzanine floor of the house while the son was sleeping on the ground floor. The wife woke up on hearing the cries of his son, she ran to the ground floor and saw that her husband was assaulting her son with an iron rod which resulted in death of the son. When the wife tried to stop the appellant, she too was hit by the rod. The appellant threatened her not to tell this to anybody or else she had to face consequences. Subsequently, an FIR was registered and the appellant was convicted by the trial court under Section 302. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court noted that the wife (PW 1) was the star witness in the case. No doubt, in her testimony, she did not fully support the prosecution case. However, the Court observed, that it is a well settled position of law that such part of the evidence of a hostile witness which is found to be trustworthy van always be taken into consideration. In the instant case, PW 1 had supported the prosecution case with regard to earlier incidents of quarrel, she and the appellant going to mezzanine floor. Her evidence of seeing the appellant with iron rod standing near the deceased had gone unchallenged, which was also corroborated by her sister and niece who came running to the house hearing the cries of PW 1. Furthermore, the burden under Section 106 of the Evidence Act shifted on the appellant to prove that how the injuries were sustained by the deceased. The explanation given by the appellant that the deceased fell from the mezzanine floor and thereby sustained injuries were found to be false in light of the evidence of medical expert. In such circumstances, the Court dismissed the appeal. [Babubhai Laxman Bhamaniya v. State of Maharashtra,2018 SCC OnLine Bom 2634, dated 09-08-2018]

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