Bombay High Court
Lakhan @ Raju Baban Yedave (Yevale) vs The State Of Maharashtra on 18 September, 2002
Equivalent citations: 2003CRILJ4424
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. Ms. V.S. Mhaispurkar for the appellant. Shri Shringarpure, A.P.P. for the prosecution. Both of them have been heard at length in context with the evidence on record. The appellant is assailing correctness, propriety and legality of the judgment and order passed by the 3rd ad hoc Additional Sessions Judge, Pune while deciding Sessions Case No. 202 of 2001, wherein the appellant has been convicted for the offence punishable under the provisions of Section 304(II) of Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. The appellant has been convicted for the offence punishable under Section 506(II) of I.P.C. and has been sentenced to undergo rigorous imprisonment for one year. The substantive sentences have been directed to run concurrently.
2. The prosecution case, in brief, is that the appellant was staying with his wife P.W. Shantabai, in a rented room owned by one Vilas Katore at Indrayani Nursery at Chimbali Phata, Kuruli, Tal. Khed, District Pune. On the night of the incident, their small daughter aged about 9 months was ill. The appellant had gone for search of work in the morning and returned back home at about 10.30 P.M. The prosecution case shows, that he had retired for sleep. At about 11.30 P.M. in the said night said small child named Guddi started crying. Hence, P.W. Shantabai put her in craddle and tried to clam her down but Guddi continued crying. On account of that, the appellant got up and he himself took the said child on his lap and started patting her. After patting her for sufficient time, as per prosecution case, all of a sudden he pressed the mouth and nostrils of said child by his palm by which said child suffocated and died.
3. After some time P.W. Shantabai shouted and on account of that neighboring persons came namely Pandit Katore. Devidas Danane, Bajirao Bankar and Waman etc. P.W. Shanatabai told them that the said child died on account of appellant pressing his palm on the mouth and nostrils of their child. She further told them that the appellant threatened her that he would kill her in case she shouted. Therefore, she had kept mum. Parents of Shantabai were called by sending a message through telephone. After they came, the F.I.R. was lodged which resulted in the trial, and thereafter resulted in said order of conviction and sentence.
4. Miss. Mhaispurkar, Counsel appearing for the appellant, submitted that the wife of the appellant P.W. Shantabai was having illicit relations with Vilas Katore, the landlord, and on account of that, she might have falsely implicated the appellant in this case. She prayed for acquittal or, in the alternative, prayed for reduction of the sentence by submitting that no father would kill his child and whatever has been committed by the appellant was on account of sheer unfortunate frustation. Shri Shringarpure justified the order of conviction and sentence as correct, proper and legal and submitted that the appeal be dismissed.
5. Evidence of Shantabai has been corroborated by her F.I.R., by the evidence of Vitthal Thorahe, Kantabai W/o Devidas Danane, Savita W/o Vilas Katore, Jayshree W/o Bajirao Bankar, Dr. Mrs. Meenal Vitthal Jadhav and P.I. Ramchandra Pathare. The evidece of all these witnesses, if assessed as a whole, leads to only one conclusion that appellant was responsible for the death of child of appellant and Shantabai, namely Guddi, and he had threatened Shantabai by asking her to keep silence. The evidence, if appreciated as a whole, leads one to conclude that after the said incident appellant left the house and did not come back.
6. But this does not mean that. he has committed murder of said child and his acts were with the intention to commit the murder of the said child. It is true that some suggestions have been made on behalf of the appellant by suggesting that P.W. Shantabai was having illicit relations with Vilas Katore, the landlord, and there used to be some bickering between the husband and wife on account of more visits of Vilas Katore to their house. Shantabai has denied these suggestions. There is no material on record to come to the conclusion that there were such relations between them. The evidence on record shows that both, appellant and Shantabai were not having sufficient understanding sense, education and maturity of life. On account of that they had lost their earlier child which died on account of fever. Evidence also shows that Shantabai did not give personal care towards this child Guddi also, two days prior to the said unfortunate night. Normally, a mother is not expected to be so careless but there are some persons who do not understand as to what they should do in respect of their children and this couple is example of that. Without meaning anything, they were casual in their behaviour and therefore, Shantabai was not careful enough in giving even traditional medical treatment to the said child with the help of the adjoining ladies. The appellant happens to be a poor person, as evidence on record shows. He had gone in search of work right from the morning of the said day and returned back at 10.30 p.m. Needless to say that he must have been very much tired and must have been in dire need of sleep. When said child started crying, P.W. Shantabai put her in craddle at 11.30 P.M.. That crying made appellant to get up and his natural reaction was that he should take the said child out of credle and put her on his lap. He did so and started patting it for pacifying but he could not succeed. He was not to succeed because, when shantabai was careless and appellant was not accustomed and in the habit of handling the child. Lack of experience, lack of habit resulted in attempts going in vain. Child continued crying and thereafter the alleged act of appellant came in and that ended the chapter, so far as that child's life was concerned.
7. The evidence on record shows that the appellant did his best for pacifying that child but the said child did not keep coolness of mind. It continued crying. Therefore, it is possible that in the mood of annoyance on account of lack of maturity, the appellant might have tried to pacify that child in a rude way and that must have resulted in its suffocation. The evidence which is on record shows that, it was an act committed by the appellant without taking sufficient care or might have been also done in haste. But on account of absence of sufficient material on record, the learned trial Judge was left with no alternative but to conclude that the act of the appellant was an act amounting to culpable homicide not amounting to murder. The learned trial Judge has given the reasons justifying the said conclusion. There was no reason for the appellant to commit the murder of his own child. It seems to be the rude action of ignorant, immatured father. Therefore, this Court does not find any ground for setting aside the conclusions of the trial Judge holding that the appellant Committed an offence punishable under section 304(II) of I.P.C.
8. The prosecution evidence has proved that appellant had left his home after the said incident by threatening his wife P.W. Shantabai, warning her that she should not tell anybody about the said incident, otherwise, she would be killed. She has stated in her evidence that while saying so the appellant brandished a knife. It has not been seriously challenged nor shattered in the cross-examination. Therefore, the learned Judge happens to be correct in holding the appellant guilty of offence punishable under section 506(II) of I.P.C. This Court does not find any ground for dislodging the said conclusion of the trial Judge.
9. Thus, this Court confirms the order of conviction passed by the trial Court.
10. The trial Judge has inflicted the sentence of rigorous imprisonment for two years, for offence punishable under Section 304(II) of I.P.C. and sentence of one year rigorous imprisonment for the offence punishable under Section 506(II) of I.P.C. There is no point in reducing the said sentence because, the appelalnt has already undergone that sentence when this appeal came up for hearing. This Court does not find any ground for setting side that because, the reasons given by the trial Court for justifying it are correct proper and legal. The sentence is also maintained.
Thus, appeal stands dismissed. No interference in respect of the order in context with disposal of the property.
The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.