A.P. Lavande, J.

By this appeal, the appellant (hereinafter referred to as "the accused"), takes exception to the Judgment and order dated 24.3.2009 passed by the Additional Sessions Judge-6th, Nagpur, in Session Trial No.306/2008, convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.15,000/- (Rs.Fifteen thousand only), in default to suffer rigorous imprisonment for one year. Out of fine amount, an amount of Rs.10,000/- has been ordered to pay to P.W.2 Divyani as compensation.

2. Briefly, the case of the prosecution is as under:

On 19.5.2008, P.W.1 Dilip Paigwar, the informant, lodged report at Police Station, M.I.D.C. inter alia alleging that he was a retired Police Sub Inspector and was residing at Shubham Nagar, Hingna Road, Nagpur. The house of one Arun Khandar was near his house and the accused was residing as a tenant in the house of Arun Khandar. The accused had worked as a driver of Arun Khandar for some time. When the accused was serving under him, the accused told him that there were illicit relations between his wife Rani and Arun Khandar and he had seen them indulging in sexual intercourse in the house of Arun Khandar in the absence of Aruns wife. Accused told him that it would not be appropriate to disclose this fact. On this count, there were quarrels between the accused and his wife Rani.

3. On 18.5.2008 at about 8.00 p.m. the accused came to the shop of Dilip Paigwar and Dilip Paigwar inquired from the accused as to what had happened since the accused seemed to be in a bad mood. The accused replied that his wife was misbehaving and as such he was thinking of committing suicide. Thereafter, the accused left the shop. On 19.5.2008 at about 5.30 a.m. he learnt that three persons i.e. two women and one man were lying dead in the house of Arun Khandar, so he went to the house of Arun Khandar and saw that Arun Khandar, his wife Versha Khandar and Rani, the wife of accused were lying dead in the pool of blood on the roof of the house of Arun Khandar. He also saw that one sledge hammer, stone-slab (dagadi pata) and one stick were lying near them. It was alleged that the accused suspecting illicit relation of his wife with Arun Khandar, on the night between 18th and 19th May, 2008 assaulted Arun Khandar, Varsha Khandar and Rani Verma with iron hammer and stone (pata) and caused severe injuries to them and committed their murder.

On the basis of the said report, the Officer In-charge of the Police Station, M.I.D.C. registered an offence bearing Crime No.84/2008 under Section 302 of the Indian Penal Code against the accused and handed over the investigation to Police Inspector-Ramlakhan Yadao, who investigated the crime. On 21.5.2008, A.S.I.,Mishra arrested the accused. Thereafter, further investigation was handed over to the Police Inspector Sayyed Iqbal, who conducted further investigation and filed charge sheet. The offence being exclusively triable by the Sessions Court, the learned Judicial Magistrate First Class, Nagpur committed the case to the Court of Sessions, Nagpur.

4. In Session Trial No.306/2008, the prosecution examined 14 witnesses, out of whom four witnesses including the first informant P.W.1 Dilip Paigwar, turned hostile. The prosecution also relied upon the documentary evidence. The defence of the accused is of total denial and false implication. Further his defence is that in the evening at about 6.00 p.m. he along with his son had gone to Chhattisgqad and fell ill and thereafter the police arrested him outside Durg Railway Station. The accused did not lead any defence evidence.

5. The learned Additional Sessions Judge, upon appreciation of the evidence led by the prosecution, held that the offence of murder was clearly made out against the accused and consequently convicted and sentenced him as above.

6. The learned trial Court held that the prosecution had proved that the death of Arun Khandar, his wife Varsha Khandar and Rani Verma, was homicidal and further placed reliance upon the evidence of P.W.2 Divyani Khandar - minor daughter of the deceased, who claimed to be an eye witness to the incident and consequently convicted and sentenced the accused as above. The trial Court also placed reliance upon the confessional statement recorded by P.W.10 Prakash Somkuwar, Special Executive Magistrate.

7. Mr. Daga, learned counsel appearing for the accused submitted that the evidence of P.W.2 Divyani does not inspire confidence and it is difficult to accept her evidence as an eye witness. He further submitted that P.W.7 Shobha Aade, P.W.8 Nanubai Barde and P.W.9 Meena Yede, who were the neighbours of the deceased, had not supported the prosecution case and in this background conviction of the accused, primarily based on the evidence of P.W.2 Divyani, is unsustainable in law. Mr. Daga, learned counsel took us to the evidence of the relevant witnesses and submitted that the prosecution evidence read as a whole does not make out a case of murder against the accused and, therefore, the accused is entitled to be acquitted of the offence punishable under Section 302 of the Indian Penal Code.

8. Per contra, Mr. Nayak, learned APP supported the Judgment and order of the learned trial court and submitted that the evidence of P.W. 2 Divyani inspires confidence inasmuch as her presence at the time of the incident was quite natural and she has absolutely no reason to falsely implicate the accused as the author of the crime. He further submitted that the evidence of P.W. 2 Divyani stands corroborated by the evidence of P.W.10 Prakash Somkuwar-Special Executive Magistrate, who recorded the confessional statement of the accused under Section 164 of the Code of Criminal Procedure. He further submitted that considering that the accused committed brutal murder of three persons and considering prosecution evidence, there is absolutely no case made out for the interference with the Judgment and order of conviction passed by the learned trial Court.

9. We have carefully considered the rival submissions, perused the record and the Judgments relied upon.

10. There is no serious dispute that the death of deceased Arun Khandar, Varsha Khandar and Rani Verma was homicidal. This has been clearly proved by the evidence of P.W.12 Dr. Mohd. Ali Nisar Ali, who was attached to Forensic Medicine Department, Government Medical College, Nagpur in May, 2008. He deposed that he conducted the post mortem on the dead body of Varsha Khandar, Arun Khandar and Rani Verma on 19.5.2008. On the dead body of Varsha Khandar, he found the following injuries.

1) Lacerated wound present on forehead, 3 cms to right of midline, 5 cms above eyebrow of size 3.5 cms x 1 cms, bone deep. Margins are contused.

2) Lacerated wound present on right side of face adjoining outer angle of right eye of size 3 cms x 2 cms bone deep, Margins are contused.

3) Lacerated wound present over pinna of right ear of size 1 cms x 0.25 cms skin deep. Margins are contused.

4) Lacerated wound present in right occipital region, 3 cms behind mastoid process of size 4 cms x 2 cms bone deep margins are contused.

5) Lacerated wound present in right occipital region over mastoid process of size 2.5 cms x 0.5 cms, bone deep. Margins are contused.

All the injuries were ante mortem and fresh. He found corresponding internal injuries. He opined that all the injuries were possible by hard and blunt object and cause of death was head injury. He identified his signature on the post mortem (Exh. 50) and confirmed its contents as true.

11. On the same day, he also conducted the post mortem on the dead body of Arun Khandar. He found the following injuries on the dead body of Arun Khandar.

1) Lacerated wound present on right temporal region, 10 cms above tragus of right ear of size 7.5 cms x 0.5 cms scalp deep, margins are contused.

2) Lacerated wound present in right temporal region, 4 cms behind injury no.1 of size 2.5 cms x .5 cms, margins are contused.

3) Lacerated wound present in right temporo occipital region, 5 cms above mastoid process of size 3.5 cms x 1 cms, bone deep, margins are contused.

4) Lacerated wound present in right occipital region, 1 cm behind mastroid process of size 2.5 cms x 0.5 cms, skin deep margins are contused.

5) Lacerated wound present in right temporal region, behind pinna on the bae of mastroid process of size 2.5 cms x 0.5 cms scalp deep, margins are contused.

6) Lacerated wound present over pinna of right ear, 2 cms x .5 cms size skin deep, margins are contused.

7) Post mortem abrasion (Ant bite marks) on left side of chest in mid axillary line over 5th and 6 th rib of size 3 cms x 1 cms, yellowish brown in colour.

All the injuries were ante mortem except injury No.7 and were fresh. He also found corresponding internal injuries. Further, he stated that all injuries were possible by hard and blunt object and the cause of death was head injury. He identified his signature on post mortem report (Exh. 51) and confirmed its contents as true.

12. On the same day, he also conducted the post mortem on the dead body of Rani Verma. He found the following injuries.

1) Lacerated wound present on forehead "L" shape with vertical limb extending from a point 3 cms to left of mid line and 5 cms above eye brow to a point 1 cms outer to medial end of eye brow and horizontal limb continued laterally to a point on outer end of eye brow vertical limb of size 4 cms x .5 cms bone deep and horizontal limbs of size 4 cms x .5 cms bone deep with fracture of bones under neath, margins are contused.

2) Lacerated wound present on left side of forehead, 1 cms above outer end of left eyebrow of size 1 cms x .5 cms bone deep, margins are contused.

3) Lacerated wound present over left side face, 3 cms in front of tragus of size 0.5 cms x 0.5 cms margins are contused.

4) Contused abrasion present on right side of forehead, 1 cms above outer end of right eyebrow of size 0.5 cms x 0.5 cms brownish red in colour.

5) Contused abrasion present over right malar prominence 3 cms below lower eyelid of size 2 cms x 0.5 cms brownish red in colour.

6) Contused abrasion present on chin, 1 cms to the left of mid line of size 0.5 cms x 1 cms brownish red in colour.

7) Two scratch abrasion present on chin 1 cms left of injury no.6 extending up to a point 3 cms to the outer angle of mouth, 4 cms long each, brownish red in colour.

8) 2 cresentic abrasions present on under surface of chin, 3 mm long each, brownish red in colour.

9) Contused abrasion present over front of neck, 2 cms above adams apple, extending from a point 1 cms to right of midline at level of hyoid bone, to a point 3.5 cms to left of mid line of level of adams apple of size 4.5 cms x 1 cms, obliquely placed, margins are contused.

10) 2 cresentic abrasions present on right side of neck at level of adams apple 1 cms to right of mid line, 1 cm apart from each other, 2 mm long each, brownish red in colour.

11) 5 cresentic abrasions present on front of neck, below adams apple, in an area of 3 cms x 3 cms, 2 mm long each, brownish red in colour.

12) Linear abrasion present over front of neck, below cricoid cartilage, vertically placed on size 2.5 cms, brownish red in colour.

13) 2 cresentic abrasions present on left side of neck, 0.5 cms to left of injury No.12, 2 mm long each, brownish red in colour.

14) Contused abrasion present on left side of neck, 3 cms to left of mid line at the level of adams apple of size 1 cms x 0.5 cms. Brownish red in colour.

15) Linear abrasion present on left side of neck at level of a point 1 cms above adams apple, 3.5 cms to left of mid line, 3 cms long, brownish red in colour.

16) 2 contused abrasions present on right side of neck, at th elevel of hyoid bone, 2 cms to right of mid line of size 3 cms x 2 mm and 1 cms x 2 mm obliquely placed, brownish red in colour.

17) Contused abrasion present right supraclavicular region, 3 cms above midclavicular point of size 1.5 cms x 0.5 cms brownish red in colour.

18) Contusion present over upper surface of left shoulder of size 3 cms x 1 cms. Bluish in colour.

19) 2 Linear abrasions present in right mammary region, extending from midclavicular point, to a point 5 cms to right of mid line at level of 3rd costal cartilage, parallel to each other, 5 cms long each, brownish red in colour.

20) Contused Abrasion present inleft infra mammary region, 4 cms to left of mid line in 5th intercostal space of size 2 cms x 2 cms, brownish red in colour.

21) Contused abrasion present on left side of chest on outer aspect extending from a point on anterior axillary line on 6th rib to a point on left infra scapular region, 2 cms away from inferior angle of scapular of size 12 cms x 2 cms, obliquely placed brownish red in colour.

22) Lacerated wound present over scalp in right parietal region 3 cms in front of parietal prominence of size 4 cms x 1 cms, bone deep, margins are contused.

23) Lacerated wound present over scalp in mid line in parietal region of size 3 cms x 1 cms, bone deep, margins are contused.

24) Lacerated wound present in right temporo parietal region, 5 cms in front and lateral to right parietal eminence of size 4 cms x 1 cms bond deep margins are contused.

25) Contused abrasion present on back in mid line level of T 12 Thoracic vertebra of size 1 cms x 0.5 cms, brownish red in colour.

26) Post mortem abrasions (Ant bite marks) present over right infra scapular region and over medial surface of both thighs at places.

13. He further stated that all the injuries except injury No.26, were ante mortem and were fresh. He found corresponding internal injuries. He further stated that most of the injuries could be caused by hard and blunt object, some of the injuries could have been caused by pointed object and remaining injuries could be caused by nails. The cause of death was head injury. He identified his signature on the post mortem report (Exh. 52) and confirmed its contents as true. He further deposed that all the injuries mentioned in column no.17 of post mortem reports (Exh. 50 to 52) were sufficient in the ordinary course of nature to cause death.

14. He further stated that on 30.5.2008 from police he received three articles i.e. one wooden stick, one iron head of hammer and one large stone block (pata). He opined that the injuries 1 to 5 and the corresponding internal injuries mentioned in the post mortem report of Varsha Khandar were possible by hammer and stone block. Similarly, he opined that injuries 1 to 6 and the corresponding internal injuries mentioned in the post mortem report of Arun Khandar were possible by hammer and stone block. He also opined that injuries 1 to 6, 9 and 22 to 24 along with internal injuries mention in the post mortem report of Rani Verma were possible by hammer and stone block. He identified all the three articles as Articles 1,2 and 3. He identified his signature on query report Exh. 54. Nothing tangible has been brought on record in the cross examination of this witness and as such the prosecution has been able to establish that all the three deceased viz. Arun Khandar, Versha Khandar and Rani Verma died homicidal death and the injuries found on each of them could have been caused by Articles which were sent to P.W. 12 Dr. Mohd. Ali Nisar Ali for his opinion.

15. The prosecution has primarily relied upon the evidence of P.W.2 Divyani Khandar, seven years old daughter of Arun Khandar. She deposed that Arun Khandar and Varsha Khandar were her parents and they were two sisters and one brother. All of them were residing together and the accused and his wife were the tenants. She further deposed that the incident has taken place four months before her deposition which was recorded on 4.10.2008. They were sleeping in the house. She along with her brother, parents, aunt viz. Rani, were sleeping in the house. During the night, accused came from the gate of the house on the first floor. The accused assaulted her father on his head by sledge hammer. He shouted. Therefore, she and her brother woke up. Her mother also woke up. The accused then assaulted her by the same hammer. Thereafter, aunty (referring to Rani) woke up and accused struck her on head with stone - slab (stone-pata). Her brother Abhijit started weeping. Accused told him to keep quite otherwise he would be killed. She further deposed that her parents and aunt sustained bleeding injuries on their head and blood was oozing from their head. Thereafter, the accused took the key of the gate, opened the gate and on motor cycle went away. She identified the stone-slab and sledge hammer (Articles A and B respectively).

In cross examination, she stated that she used to go to School at about 10.00 a.m. and return at about 5.00 p.m.. After coming from the School, she used to take meal and go for playing. She used to return to her house at about 7.00 to 7.30 p.m. and thereafter went to study. After taking meals, she used to watch T.V. and sleep at about 8.00 p.m.. She admitted that she used to sleep in the house on the ground. She admitted that after sleeping, she used to wake up at 7.00 a.m. in the morning. She further admitted that on the day of the incident, she slept and woke up as usual. She further stated that when she woke up in the morning, she heard hue and cry. She admitted that the persons gathered in the morning, were telling that the murder of her parents had taken place. She denied the suggestion that she has not gone along with the persons to the first floor of their house. She denied the suggestion that she could not see the gate of the house by sitting on the roof of the house. She admitted that the Muddemal Articles A and B were seen by her, for the first time, before the Court. She admitted that Rani used to support her mother in her cooking work on payment of wages. She further stated that at the time of her deposition, she was residing with her maternal uncle. She denied the suggestion that her grand mother and maternal aunt tutored her to give her statement. She denied that her aunt had told her how to give statement. She stated that her statement was recorded by police but she claimed that she did not know what was written in her statement. She stated that in her police statement, she had stated that accused had gone from the gate to the first floor of the house. She stated that she could not give any reason as to why the fact that the accused had assaulted aunt Rani with stone slab, was not appearing in her statement. She denied that as she had slept, she did not know anything about the incident. She denied the suggestion that she was deposing falsely.

16. A close scrutiny of the evidence of this witness discloses that her evidence is natural and inspires confidence. No doubt, in her cross examination, she has stated that she used to sleep at about 8.00 p.m. and wake up in the morning at about 7.00 a.m. and on the day of the incident also she had slept and woke up as usual. This stray statement of the witness in the cross examination cannot be taken to mean that this witness had not seen the incident. It was quite natural for her being seven years old to sleep along with her parents and as such it was quite natural for her to witness the assault on her parents as well as on Rani. Her statement that all of them including deceased were sleeping on the first floor, has to be understood as they were sleeping on the terrace and her statement in the cross examination that there is no first floor to their house, cannot be construed to mean that her entire version regarding assault on three deceased, deserves to be rejected. We are, therefore, of the considered opinion that her evidence, which implicates the accused as the author of the crime, deserves to be accepted. We are conscious of the fact that the evidence of a child witness has to be scrutinized carefully and cautiously but after having tested the evidence of P.W.2 Divyani on the touch stone of the settled principles, we have absolutely no hesitation to accept her testimony. Moreover, there is absolutely no reason for her to falsely implicate the husband of Rani to whom she called as aunty".

17. The evidence of P.W.2 Divyani stands corroborated by P.W.10 Prakash Somkuwar - Special Executive Magistrate, who recorded the confessional statement of the accused. The evidence of P.W.10 Prakash Somkuwar discloses that on 29.5.2008 he was requested by police to record confession of the accused by communication dated 29.5.2008 (Exh. 36). He passed order directing production of the accused before him on 6.6.2008. On 6.6.2008 the accused was produced before him and he gave answers in Hindi language and after satisfying himself that the accused was not under any pressure and after putting the accused to notice that if he gives confession, he would be punished, he gave him 24 hours to reflect and told the police to produce him on the next day. On 7.6.2008 he recorded the statement of the accused in question answer form. The accused, inter alia, stated before him that his wife was having illicit relations with the landlord and he had seen them indulging in sexual intercourse and, therefore, he had killed his wife, landlord and wife of landlord. He obtained the signature of the accused on confession and certified that the confession recorded by him was true, correct and as per his statement. He identified his signature on the confessional statement (Exh. 37). He further stated that when the statement was recorded, nobody was present in his room except he and the accused. After recording the statement, he put it in an envelop, sealed the same and handed it over to the concerned police station. In the cross examination of this witness, nothing tangible has been brought on record to discredit his testimony. He denied the suggestion that he prepared the confessional statement on his own accord under the influence of the police. There is absolutely no reason as to why P.W.10 Prakash Somkuwar-Special Executive Magistrate would falsely depose regarding the confessional statement of the accused.

18. The evidence of P.W.10 Prakash Somkuwar, which is corroborated by confessional statement (Exh. 37), also lends corroboration to the version of P.W.2 Divyani on material aspects. Therefore, in our view, the prosecution has been able to establish that it was the accused who had assaulted Arun Khandar, Varsha Khandar and Rani Verma on account of illicit relationship between his wife Rani and deceased Arun Khandar which he had personally witnessed.

19. We shall now deal with the other evidence led by the prosecution. The prosecution examined P.W.1 Dilip Paigwar, the first informant, who had lodged report (Exh.6) on 19.5.2008. Though he turned hostile and was cross examined by the prosecution, his evidence clearly establishes that he had lodged first information report (Exh.6) and that in the morning on 19.5.2008 he had seen dead bodies of Arun Khandar, Varsha Khandar and Rani Verma on the roof of the house of Arun Khandar. P.W.3 Motilal Bind has proved the spot panchanama (Exh. 13) in terms of which sledge hammer and stone-slab were seized by the police from the spot. P.W.4 Chandramani Yadao was examined to prove the discovery of the blood stained pant and motor cycle at the instance of the accused on 22.5.2008. His evidence, which has not been shaken in the cross examination, clearly establishes that on 22.5.2008 at the instance of the accused, his blood stained pant was seized from his house pursuant to the memorandum panchanama Exh. 19 and the same was seized under seizure panchanama Exh. 20. P.W.6 Rajesh Daderao, who was a panch to the seizure panchanama of the clothes of all the three deceased, did not support the prosecution and as such his evidence does not advance the case of the prosecution. P.W.7 Shobha Aade, P.W.8 Nanubai Barde and P.W.9 Meena Yede, who were the neighbours of deceased Arun Khandar, did not support the prosecution case and they turned hostile and as such their versions do not support the prosecution case. However, admittedly they were not the eye witnesses. The prosecution also examined P.W.5 Anil Gedam, P.W. 11 Ramlakhan Yadav, P.W.13 Sayyad Iqbal and P.W. 14 P.S.I., Mahindrasingh, the police officers who deposed about the investigation carried out by them.

20. It is pertinent to note that the accused had taken a defence of false implication and also a specific plea of alibi in the statement under Section 313 of Cr.P.C.. According to the accused, he was not present on the spot and he had gone to Chhatisgad and he was arrested at Durg Railway Station. The accused has not led any evidence to substantiate the plea of alibi taken by him and, therefore, the defence of alibi taken by the accused deserves to be rejected. Thus, the prosecution evidence clearly proves that it was the accused and accused alone who had committed triple murder. Therefore, in our view, no interference is warranted with the Judgment and order of conviction and sentence imposed on the accused.

21. In the result, criminal appeal stands dismissed.