Bombay High Court
Sunanda W/O Ravindra Wankhede vs State Of Mah. Thru Police Sub-Inspector on 12 December, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
APEAL.359.07
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 359/2007
* Sunanda w/o Ravindra Wankhede
Aged about 26 years, occu: Household
R/o Mahalundi Tq. Nandura
Dist. Buldana. ..APPELLANT
versus
The State of Maharashtra
Through Police sub Inspector
Police Station,Akot
Tq. Akot, Dist. Akola. .. RESPONDENT
..........................................................................................................
Smt. Swati Paunikar, Advocate (appointed) for appellant
Mr. Amit Chutke, APP for respondent
..........................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 12.12.2019
ORAL JUDGMENT:
1. This Appeal takes exception to the judgment and order dated 23rd April, 2007 in Sessions Trial No. 7/2006 whereby the learned Ad-hoc Additional Sessions Judge, Akot has convicted the appellant/accused for offence punishable u/s 304 Part-I of the IPC and sentenced him to suffer RI for ten years and a fine of R. 500/- in default, to further undergo RI for one month. ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 :::
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2. The prosecution case in brief is that: PW5-Ravindra Wankhade is the husband of the accused and were resident of Mahalundi Tq. Nandura Dist. Buldana. They had a female child aged about one-and-a-half years. It is the case of the prosecution that the accused was not happy with the female child and she used to neglect her. On 16.5.2005 at 9.45 am, accused along with her child went to 'Lendi' stream, which is by the side of Akot- Daryapur Road and a flowing stream. The accused placed the child on the verge of the stream and stood at some distance watching the baby. After some time the baby moved forward and fell into the pit, which was by the side of the stream. Due to the said fall, the baby was drowned in the water. Just prior to falling into the pit, PW1- Vijay Tayade saw that the baby sitting near the pit was crying. PW1 was about to lift that baby from that place, however, before he could reach, the baby fell down in the water. PW1-Vijay and PW2-Jairam succeeded in fishing out the baby outside the pit. They saw the accused standing nearby and when they addressed the accused, she hurriedly left that place. PW1 Vijay asked PW3- Vinod Upase to follow that lady, who noticed that the accused was ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 ::: APEAL.359.07 3 about to leave that place by boarding an auto rickshaw. PW3 brought the accused to the police station. In the meantime, the child was taken to the Rural Hospital, Akot who referred them to the District Hospital at Akola. However before they could reach the said hospital, the child died. An autopsy of the child was conducted at Rural Hospital, Akot. The cause of death was revealed as asphyxia due to drowning. In the meantime, PW1 lodged the report at Police Station, Akot. On the basis of the said report offence came to be registered vide Cr. No. 144/2005. PW8- Pyarsingh Manlavi, PSI conducted the investigation, visited the spot of occurrence. He prepared the inquest panchnama in respect of the dead body of the child. The statements of the witnesses were recorded. The accused was arrested. After completion of investigation, charge-sheet was submitted in the Court of learned JMFC. The case was committed to the Court of Sessions. The learned trial Judge after recording the evidence and hearing both the sides, convicted the accused, as aforesaid. ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 :::
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3. The prosecution has examined in all eight witnesses. PW1-Vijay Tayade and PW2-Jairam Shewale are the eye witnesses, PW3-Vinod Upase has apprehended the accused, PW4-Mangala cleaned the baby, PW5-Ravindra is the husband of the accused, PW 6-Ashok Wankhede is the brother-in-law of the accused, PW7- Ashok Dikkar who had seen the accused with the baby prior to the incident whereas PW8-Pyarsing Manlavi is the Investigating officer.
4. Mrs.Swati Paunikar, learned Advocate (appointed) for the appellant vociferously argued that the learned trial Judge has not assessed the evidence of the prosecution in its proper perspective. She submitted that actually the accused had gone to answer the nature's call and she kept the child near the flowing stream and the child accidentally fell down in the pit. She further submitted that there were matrimonial disputes between the accused and her husband and,therefore, at the most, it can be said that due to frustration the accused might have left her child near ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 ::: APEAL.359.07 5 the stream. She further submitted that erroneously the learned trial Judge has convicted the accused.
5. As against this, Mr.Amit Chutke, learned APP supported the impugned judgment and submitted that the evidence of the witnesses clearly indicates that the accused had deliberately gone near the flowing stream and kept her child near the stream and was just waiting that the baby should fall into the stream and die. He submitted that the evidence on record shows that the accused was not intending to have baby girl and since birth of the child, she used to ill-treat her, inasmuch as she anyhow wanted to get rid of her baby. He submitted that the learned trial Judge has properly assessed the evidence and convicted the accused.
6. In order to appreciate the rival contentions of both sides, it would be beneficial to go through the evidence led by the prosecution witnesses. The evidence of PW1-Vijay Tayade, who is the informant and an eye witness to the incident, shows that on the day of incident at about 9.45 am he went to the land of PW3- ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 ::: APEAL.359.07 6 Vinod Upase for the purpose of irrigating the land. He stated that there was one electric motor pump fitted on the Lendi stream. When he went near the said motor pump so as to start it, he noticed a female child, aged about one and a half years, lying under a Chilar tree and was crying. The baby was lying on the bank of the stream and just at its verge. There was a pit full of water. By the time he reached near the crying child, it fell into the pit and the water of the pit entered into the nostrils and mouth of the baby. PW1 with the help of PW2-Jairam took out baby from the pit. PW1 categorically stated that he noticed a woman in a blue saree at that place. After taking out the baby from the pit, PW1 said to that woman that her baby had fallen into the pit,however, that woman quickly disappeared. At that time PW3- Vinod Upase reached that place. PW1 asked PW3-Vinod to keep a watch on that lady who had abandoned her baby. PW1 then proceeded to Akot Police Station. The baby was taken to Rural Hospital, Akot. In the meantime PW3-Vinod took the woman i.e. accused to the Akot Police Station. PW1 then lodged his report at Akot Police Station vide Exh.18.
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7. The testimony of PW1 not at all shattered in the cross-examination on material aspects. PW1 has identified the accused in the Court. There was no reason for PW1 to lodge a false complaint against the accused. Furthermore, PW1 had an opportunity to see the accused watching the incident from a distance of about 15 feet. It was suggested to PW1 that when the baby was found crying near the stream the accused was answering the nature's call at a short distance away from that baby. However PW1 stated that he saw the accused in a standing position. The presence of PW1 at the place of the incident was natural one as he went to the place of incident to start the electric motor fitted on the stream.
8. The testimony of PW1-Vijay is corroborated with the testimony of PW2-Jairam and it demonstrates that on the day of the incident at 9.45 am when he was returning back to his house, he received a call by PW1 Vijay. On reaching there he found that PW1 was on the bank of Lendi stream there was apit in which ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 ::: APEAL.359.07 8 dirty water gathered below a tree and a baby had fallen in the pit water and her body was below the water level. PW2 deposed that he took out the baby with the help of PW1-Vijay. A woman was standing at a distance of 15 to 25 feet. People gathered there however that women fled away from that place. PW2 stated that PW1 asked the owner of the land to keep a watch on the woman. PW2 then went to the Police Station, Akot. At the Police Station that woman was present. PW2 identified that woman as the accused. PW2 specifically stated that the accused was not answering the nature's call and saw the accused running towards Akot town.
9. The deposition of PW3-Vinod Upase shows that he is the owner of the land where the incident had taken place. He asked PW1-Vijay who was in his employment, to start the electric motor pump fitted on the stream. Since PW1 did not return back for a quite some time, he went to that place and found 4 to 5 persons gathered at that place and PW1 had taken out the baby from the pit. PW3 stated that he noticed a woman running away and she was at ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 ::: APEAL.359.07 9 a distance of 100 ft. According to PW3 he went on bicycle following that woman. He reached Octroi naka. He found the accused sitting in one cab. PW3 made her to get down from the taxi and took her to the Police station.
10. No doubt, there are certain improvements in the testimony of PW3 with regard to the fact that when he followed the accused he was on a bicycle; however the fact remains that PW 3 followed the accused who had boarded a cab and he brought the accused to the Akot Police station. PW3 is also found to be a natural witness as the incident had taken place on his land near the stream where the motor pump was fitted and he asked his employee PW1-Vijay to start the said motor pump. Thus, the presence of PW1Vijay, PW2-Jairam and PW3-Vinod at the place of the incident has not been seriously disputed. They are found to be natural witnesses. It is also not challenged in the cross-examination that the accused was found at some distance from the stream and she was taken by PW3 at the Police Station.
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11. The evidence of PW5-Ravindra Wankhade is material one so far as conduct of the accused is concerned. His testimony indicates that after marriage with the accused, the accused insisted for separating from joint family and therefore he arranged for separate residence. The accused conceived after some time. The accused used to say that their first issue should be a son, however she gave birth to female child. He stated that the accused was not taking proper care of the baby. The accused used to quarrel with PW5. PW5 stated that once when he was sitting outside the house, he heard the cries of his baby. He rushed and found that the accused was trying to suffocate the baby by placing her under the heap of cotton. PW5 then informed the act of the accused to her parents who tried to persuade the accused, but in vain. PW5 deposed that on the day of incident at 2.30 p.m. when he came home, he asked the accused whether she had cooked food to which she told that she did not cook up the food as the baby was causing trouble to her. In the evening when he came to his house, there was a lock on the door. He made enquiries with the neighbourers. On the next day, PW5 received a telephone call ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 ::: APEAL.359.07 11 from Police Station Akot, where he learnt that their daughter died and the the act of accused had brought her death. The testimony of PW5 however does not make clear as to why he had not reported the incident of keeping the baby below the heap of cotton.
12. The testimony of PW6 -Ashok Wankhade corrobroates with the testimony of PW5 on the point that the accused was not taking care of her baby inasmuch as she was not feeding her properly. He also stated that the accused was expecting a male child as her first issue. However she begot a daughter and as such, she was not taking care of that baby. A case was put up to PW 6 that husband of the accused was desirous of having male child and as they got female child, he was annoyed and since the birth of the baby girl he was saying that he will perform the second marriage.
13. The cross-examination of PW6-Ashok Wankhade, brother in law of the accused, shows that he himself along with PW5-Ravindra and others were facing prosecution for offence punihsable u/s 498A IPC at the instance of complaint lodged by ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 ::: APEAL.359.07 12 accused. He further admitted that PW5 had filed Hindu Marriage Petition for divorce before learned Civil Judge, S.D. Khamgaon; whereas the accused had filed a maintenance petition u/s 125 of Cr.P.C. against PW5 which is pending before JMFC, Buldana. It appears that there was some marital discord between PW5 - Ravindra and the accused and in a fit of depression, the accused had committed the act of abandoning her child. It appears that the moment the accused saw that her child fell down in the pit and PW1 and PW3 took out the child from that pit, she got frightened and left that place hurriedly, fearing mob fury.
14. The testimony of all the aforesaid witnesses corroborate with each other on material aspects and confirms the presence of accused at the place of incident.
15. It is not disputed that the baby died due to asphyxia due to drowning. The spot panchmana also shows that there was a stream in the village, a motor pump was fitted on the said stream. Thus, the spot panchnama supports the case of the prosecution. ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 :::
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16. The overall assessment of the evidence on record leads to the inference that the accused had intentionally abandoned her child near the flowing stream under frustration as there were matrimonial disputes between husband and wife. It further appears that as the accused saw PW1 and PW2 near her child while it fell down in the pit, she got frightened of mob fury and tried to flee away from that place. In any case, the accused abandoned her child near the stream intentionally due to frustration.
17. The overall facts and circumstances indicate that the offence punishable u/s 317 of the IPC has been made out against the accused. The learned trial Judge although discussed the same, he convicted the accused u/s 304 Part I of IPC. The learned trial Judge should have assessed the evidence led before him in its right perspective.
18. The learned Advocate for accused informed that the accused has undergone sentence of eight months and prays for ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 ::: APEAL.359.07 14 leniency. Considering the facts and circumstances of the case and also keeping in mind that the incident had taken place in the year 2005, the following order would subserve the interest of justice:-
ORDER
(i) Criminal Appeal No. 359/2007 is partly allowed.
(ii) The impugned judgment of conviction and sentence dated 23.4.2007 passed by learned Ad-hoc Additional Sessions Judge, Akot in Sessions Trial No.7/2006, is set aside.
(iii) The appellant is, however, convicted for the offence punishable under section 317 of the IPC and is sentenced to suffer the period already undergone by her.
(iii) The fine amount is increased from Rs. 500/- to Rs.3000/- (rupees three thousand), in default, to suffer RI for one month.
(iv) The professional fees of the Advocate appointed for the appellant, be paid as per rules.
JUDGE sahare ::: Uploaded on - 02/01/2020 ::: Downloaded on - 26/04/2020 03:17:19 :::