Sec.302 -Vs- Sec.326 - Death of wife - Eye Witness - child - Son - deposed that his father caused head injury to his mother and killed - Doctor opined that she was died due to Strangulation - there was an injury on neck - No body speaks about this - Sec.302 not proved - convicted under Sec.326 I.P.C. for 7 years and fine = the evidence of a juvenile witness must be analysed, with proper care and caution. Two contradictory phenomena come into picture. The first is that a boy of tender age would have no intention to distort the facts, and he would just speak about whatever he has witnessed. The other factor is that the witnesss of that nature may not be able to comprehend the facts to a level of precision, and unless corroborated by other evidence, it may not be safe to act upon such evidence. The evidence of P.W.2 would, at the most, account for a head injury. He did not say a word about the use of any wire or thread by the accused, much less, did he say that the accused has strangulated the deceased.P.W.13 gave his opinion, at the end of the report, as under: a) The approximate time of death is: 16 to 24 hours b) The cause of death to the best of my knowledge: ASPHYXIA due to strangulation with Hypovolemic shock due to superficial injuries. c) Reserved pending report from the Director-Forensic Science Laboratory, Government of Andhra Pradesh, Red Hills, Hyderabad-500 004 (A.P.) From this, it becomes clear that the cause of the death of the deceased is asphyxia, which is referable to injury No.3 on the neck. It has already been mentioned that P.W.2 did not state that the accused has caused any injury on the neck of the deceased. There is no other evidence on record to prove that the accused caused any injury on the neck of the deceased. Therefore, it emerges that the prosecution failed to establish the link between the accused and the vital injury on the body of the deceased. The gist of the evidence on record, at the most, would lead to a conclusion that the accused has caused a grievous injury i.e., injury No.1 upon the deceased. Therefore, it is difficult to hold that the accused is guilty of the offence of murder, under Section 302 IPC.In the result, the Criminal Appeal is allowed in part, and the conviction handed out and the sentence imposed for the offence under Section 302 IPC are set aside. In its place, it is held that the appellant is guilty of the offence under Section 326 IPC and is sentenced to undergo rigorous imprisonment for seven (7) years, and to pay fine of Rs.500/- (Rupees five hundred only), and in default of payment of the fine, to undergo simple imprisonment for one (1) month. The conviction and punishment referable to Section 323 IPC are sustained. Both the sentences shall run concurrently. - 2015 A.P.(2014) MSKLAWREPORTS

Sec.302 -Vs- Sec.326 - Death of wife - Eye Witness - child - Son - deposed that his father caused head injury to his mother and killed - Doctor opined that she was died due to Strangulation - there was an injury on neck - No body speaks about this - Sec.302 not proved - convicted under Sec.326 I.P.C. for 7 years and fine =

 the evidence of a juvenile witness must be
analysed, with proper care and caution.  
Two contradictory phenomena come into
picture.  
The first is that a boy of tender age would have no intention to
distort the facts, and he would just speak about whatever he has witnessed. 
 The
other factor is that the witnesss of that nature may not be able to comprehend
the facts to a level of precision, and unless corroborated by other evidence, it

may not be safe to act upon such evidence. 
The evidence of P.W.2 would, at the most, account for a head injury.  He
did not say a word about the use of any wire or thread by the accused, much

less, did he say that the accused has strangulated the deceased.P.W.13 gave his opinion, at the end of the report, as under:
a) The approximate time of death is: 16 to 24 hours
b) The cause of death to the best of my knowledge: ASPHYXIA due to strangulation
with Hypovolemic shock due to superficial injuries.
c) Reserved pending report from the Director-Forensic Science Laboratory,
Government of Andhra Pradesh, Red Hills, Hyderabad-500 004 (A.P.) 

 From this, it becomes clear that the cause of the death of the deceased is
asphyxia, which is referable to injury No.3 on the neck.  It has already been
mentioned that P.W.2 did not state that the accused has caused any injury on the
neck of the deceased.  There is no other evidence on record to prove that the
accused caused any injury on the neck of the deceased.   Therefore, it emerges
that the prosecution failed to establish the link between the accused and the
vital injury on the body of the deceased.   The gist of the evidence on record,
at the most, would lead to a conclusion that the accused has caused a grievous
injury i.e., injury No.1 upon the deceased. Therefore, it is difficult to hold
that the accused is guilty of the offence of murder, under Section 302 IPC.In the result, the Criminal Appeal is allowed in part, and the conviction handed
out and the sentence imposed for the offence under Section 302 IPC are set
aside.  In its place, it is held that the appellant is guilty of the offence
under Section 326 IPC and is sentenced to undergo rigorous imprisonment for
seven (7) years, and to pay fine of Rs.500/- (Rupees five hundred only), and in
default of payment of the fine, to undergo simple imprisonment for one (1)
month.  The conviction and punishment referable to Section 323 IPC are
sustained.  Both the sentences shall run concurrently. - 2015 A.P.(2014) MSKLAWREPORTS

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