Karnataka High Court
Shamshir Khan vs The State Of Karnataka on 8 September, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF SEPTEMBER 2022
PRESENT
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B.KATTI
CRIMINAL APPEAL No.200160/2017
BETWEEN:
Shamshir Khan S/o Gafoor Khan,
Age: 26 years, Occ: Labour,
R/o Sangam Kalan, Tq: Chincholi,
Dist: Rangareddy-501144,
Andhra Pradesh.
... Appellant
(By Sri. B.C.Jaka, Advocate)
AND:
The State of Karnataka
Represented by the Public Prosecutor,
High Court of Karnataka,
At: Kalaburagi Bench.
... Respondent
(By Sri. Veeranagouda Biradar, In-charge Addl. SPP)
This Criminal Appeal is filed under Section 374 (2) of the
Code of Criminal Procedure, praying to set aside the judgment
of conviction and order of sentenced dated 02.06.2017 of
I Addl. Sessions Judge Kalaburagi in S.C.No.13/2016 convicting
the appellant/accused for the offences punishable under Section
302 of IPC.
Crl.A.No.200160/2017
2
This appeal coming on for hearing, through
physical hearing/video conference, this day,
Dr.H.B.Prabhakara Sastry J., delivered the following:
JUDGMENT
The present appellant who was accused in Sessions Case No.13/2016, in the Court of the learned I Additional Sessions Judge, Kalaburagi (hereinafter referred to as `the Session Judge's Court' for brevity), has challenged the impugned judgment of conviction and order on sentence both dated 02.06.2017, convicting him for the offence punishable under Section 302 of the Indian Penal Code, (hereinafter referred to as `the IPC' for brevity) and sentencing him accordingly.
2. The summary of the case of the prosecution in the trial Court was that on 09.08.2015 between 3.30 pm to 4.00 pm, the accused with an intention to kill his Crl.A.No.200160/2017 3 daughter Guljar took her from house and thrown her in a water pond at a quarry thus drowning her in a water pond which quarry was situated in land bearing Sy.No.158 of Kallur village and thereby caused the death of his own daughter baby Guljar and thereby has committed an offence punishable under Section 302 of IPC.
3. In order to prove the guilt against the accused, prosecution got examined twenty five (25) witnesses as PW-1 to PW-25 and got marked documents from Exs.P-1 to P-19 and got produced material objects from MOs-1 to MO-3. From the accused side, neither any witness was examined nor any documents were marked as exhibits.
After hearing both side, the learned Sessions Judge's Court, by its judgment dated 02.06.2017, convicted the accused for the offence punishable under Section 302 of IPC. Challenging the same, the appellant/accused has preferred the present appeal. Crl.A.No.200160/2017 4
4. The respondent/State is being represented by its learned Addl. SPP.
5. This appeal is from the jail on behalf of the appellant, where the appellant is said to be serving the sentence of imprisonment. The appellant is being represented the Panel advocate from the Legal Service Committee of this Court.
6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
Crl.A.No.200160/20175
9. The points that arise for our consideration in this appeal are:
i. Whether prosecution has proved beyond reasonable doubt that on 09.08.2015 between 3.30 pm to 4.00 p.m., the accused has caused the death of his daughter baby Guljar by drowning her in the pond water at a stone quarry at Sy.No.158 of Kallur village and thereby has committed an offence punishable under Section 302 of IPC?
ii. Whether the judgment of conviction and order on sentence under appeal warrants any interference at the hands of this Court?
10. The learned Panel advocate for the appellant in his brief argument submitted that admittedly the entire case of the prosecution is based upon circumstantial evidence, as such the prosecution was required to prove every aspect of the alleged act without any break in it. However, the process has Crl.A.No.200160/2017 6 stumbled since there is no evidence as to who have seen the accused carrying the deceased baby Guljar victim mear the pond. Therefore, the benefit of doubt was required to be given to the accused, but the Trial Court did not consider the said aspect.
11. The learned in-charge Additional State Public Prosecutor in his argument submitted that the date of the incident, the death of baby Guljar, the manner of death, as due to drowning are not in dispute. The evidence of witnesses that accused had taken his daughter Guljar victim is established beyond reasonable doubt. Even though, there are no eye witnesses having seen the accused drowning baby Guljar in the pond, still it was for him to explain the reason for the death of baby Guljar which he has failed to do it. Therefore, appreciating all these aspects, the Trial Court had rightly held that the accused is guilty of the alleged offence Crl.A.No.200160/2017 7 which does not warrant any interference at the hands of this Court.
12. It is not in dispute that deceased baby Guljar was aged about 3 years as on the date of alleged incident and she was the daughter of the present accused. It is also not in dispute that PW1 (CW-1)- Najeeyabegam is the wife of the accused. It is also not in dispute that Najeeyabegam was residing in the house of her mother along with her husband and the deceased daughter and one more son. It is also not in dispute that PW2 (CW-7)-Mahamuda Begam is the mother of PW1 and PW3 (CW-9)-Sajeeda Begum is the younger sister of PW1. It is also not in dispute that said Sajeeda Begum was also residing with her mother i.e. PW2 (CW-
7). It is also not in dispute that PW13 (CW-10)-Rasheed is the husband of PW14 (CW-11)-Taheera Begam. It is also not in dispute that said PW13 is the brother of PW1- Najeeyabegam. It is also not in dispute that PW1 and PW13 were residing in same village and deceased baby Crl.A.No.200160/2017 8 Guljar was left by her mother i.e. PW1 in her brother's house i.e. the house of PW13-Rasheed. Further it is not in dispute that the said deceased baby Guljar died an unnatural death on 09.08.2015 due to drowning in water said to be collected in a pond in a quarry at Kallur village. These details which have been extracted from the prosecution witnesses. More importantly from the evidence of PW1, PW2, PW3, PW13, PW14, PW19, PW20, PW21 and PW24 and have not been specifically denied. Hence, keeping these un-denied fact in the background, the evidence of prosecution witnesses have to be analyzed regarding the alleged offence.
13. The evidence of PW1 PW2, PW3 that they saw baby Guljar lastly on the date 09.08.2015 and that on the very same day baby Guljar was killed by drowning her in the pond water collected in a quarry in Kallur village has not been specifically denied from the accused side. On the other hand, from the accused side by making suggestion to PW1 and PW2 in the cross Crl.A.No.200160/2017 9 examination that while PW1 was working in the land as a coolie, at that time her daughter baby Guljar slipped into the pond water and drowned as such she lost her life, which was not admitted by the witnesses, but still shows that accused has admitted the nature of death of baby Guljar unnatural death due to drowning.
The further evidence of PW9, PW10, PW11 that they heard accused shouting that baby Guljar died due to drowning in the water collected in the quarry though was denied by the accused to the extent that accused made a shouting to that effect, but the nature of death, which these witnesses have shown to be unnatural death due to drowning has not been specifically denied in their cross examination from the accused side.
In the light of the above, the evidence of PW19 (CW-21)-Dr.Shivanagappa who stated that he has conducted the autopsy on the body of deceased baby Guljar and noticing after the dissection that Lungs were Crl.A.No.200160/2017 10 intact but frothy and swollen the stomach was containing 300 ml fluid and undigested food particles and based upon the examination, he came to opinion that cause of death was asphyxia due to drowning and death was between 0 (Zero) to 48 hours has remained un-denied. Thus, the evidence of these witnesses, as observed above, stating that the death of deceased baby Guljar was due to drowning and the medical evidence that it was due to asphyxia due to the drowning having remained specifically un-denied further makes it clear and establishes beyond doubt that the death of baby Guljar was unnatural death due to drowning. In the said circumstances, even though PW4 (CW-2)-Suleman and PW12 (CW-3)-Jeelekha Begum, who initially stated that Inquest panchanama as per Ex.P2 was drawn in their presence, but later stated in the cross examination that contents of the Inquest panchanama was not read over to them, would not vitiate the statement of other witnesses that death was unnatural Crl.A.No.200160/2017 11 death due to drowning. The medical evidence of the doctor i.e. PW19, further corroborates the evidence of other witnesses regarding nature of death and establishes that death of baby Guljar was an asphyxia due to drowning.
14. According to the prosecution, the place of the death was in the pond located in a quarry in Sy.No.158 of Kallur village, in which pond water was said to have been collected. The evidence of PW1, PW2, PW3, PW8, PW9, PW10, PW13 and PW14 would all go to show that the alleged drowning had taken place in the water said to have been collected in the pond at quarry. PW1, PW2, PW3 have specifically stated that they have seen the police with the help of Fire Brigade personnel extracting the body of deceased baby Guljar from the pond on the next date of incident i.e. 10.08.2015. More specifically PW17 (CW-18)- Shivaraj being the Head Constable, Karnataka State Fire and Emergency Services Department has stated Crl.A.No.200160/2017 12 that it was he who joined by the other police personnel and fireman Pradeep and Siddram have searched for the body of baby Guljar in the pond and could extract the body from the water. The said statement of witnesses that body was extracted from the water pond in the said quarry has not been denied from the accused. Further the evidence of PW20 (CW-24)-Manovyas, the Village Accountant that he had issued the RTC of the said property as per Ex.P10 and a reading of the said document at Ex.P10 would go to show that the said quarry with the pond was located in Sy.No.158 of Kallur village within the limits of respondent-police Station. Therefore, the scene of offence where dead body of Guljar was found also stands established beyond doubt.
15. In the light of the above, the major question that has to be considered is whether the said unnatural death of baby Guljar was homicidal and if so whether the prosecution has proved beyond reasonable doubt that it Crl.A.No.200160/2017 13 was accused and accused alone who has committed the said homicidal death of baby Guljar.
16. The present case is based on the circumstantial evidence. The Hon'ble Apex Court in C. Chenga Reddy and others V/s State of Andhra Pradesh, reported in AIR 1996 SC 3390 was pleased to observe that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstance must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the help of hypothesis of the guilt of the accused and totally inconsistent with his innocence.
In Padal a Vee ra Reddy V/s S tate of Andh ra Pradesh and others, r epott ed in AIR 199 0 SC 79 th e Hon' ble Apex Court was Crl.A.No.200160/2017 14 pleased to observe that in a case resting on circumstantial evidence, the following tests must be satisfied.
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency and unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so completely that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent the guilt of the accused but should be inconsistent with his innocence.
Crl.A.No.200160/201715
17. Further, the case of the prosecution is also based upon the last scene theory since admittedly there are no eye witnesses to the incident.
The Hon'ble Apex Court in Kanhaiyalal V/s State of Rajasthan, reported in (2014) 4 SCC 715 was pleased to make observation with respect to a criminal case based on the theory of last seen together and thus the circumstantial evidence that, circumstance of last seen together does not by itself necessarily lead to inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. That points to guilt of accused and none else. Mere non- explanation of being last seen together with deceased person or part of accused, by itself cannot lead to proof of guilt against him.
Crl.A.No.200160/201716
18. The evidence of PW1 the wife of the accused, PW2 the mother-in-law of the accused, PW3 the sister-in- law of the accused to the effect that the accused being the husband of PW1 and having returned from Mumbai few years ago was staying with his wife and their deceased daughter and a son in the house of the PW2 the mother-in-law of the accused in the village Sangam Kalan has not been denied by the accused. It is also not the defence of the accused either in the form of statement by any of these witnesses or in his statement under Section 313 of Cr.P.C. that he was residing in a separate house with his wife and children. Further more the evidence of the above said PW1, PW2 and PW3 that among the two children of the accused and PW1 the deceased baby Guljar was left in the house of PW13- Rasheed the brother of PW1, as such the brother- in-law of the accused, is also not denied or disputed from the accused side. Undisputedly the said brother of Rasheed was also resident of the same Crl.A.No.200160/2017 17 village.
At the inception of her evidence in examination-in- chief, PW1 has stated that since accused was addicted to consuming liquor, he was assaulting her and scolding her, so also was assaulting her daughter (deceased Guljar). She had left her daughter Guljar in the house of PW13 (PW10). The said categorical statement of none else then the mother of the deceased who is also the wife of the accused showing the reason for keeping her daughter in her brother's house has not been denied specifically in her cross examination. To the same effect PW14 (CW11)-Taheera Begam who is the wife of PW13-Rasheed has also given her evidence. The said witness has further stated that the accused apart from initiating quarrel by consuming liquor was attempting to kill the child and as such the said child was left in her house. These un-denied categorical statements of witnesses would go to show primarily that the accused was some how troubling the deceased and her mother and as such the mother of the deceased had anticipated some danger Crl.A.No.200160/2017 18 to the life of her daughter baby Guljar from the hand of none else than her husband i.e. accused.
19. PW1 has further stated that on the date of incident, the accused had been to the house of her brother (PW13-CW10) asking for the custody of baby Guljar. Since CW10 refused to gave the custody of the child, the accused had gone into the village. Then she (PW1) has brought her daughter baby Guljar to her house, at that time while the said baby Guljar was sleeping in the house of PW1, the accused again went to the house of PW1 and quarreled with her for the custody of the child. Though she (PW1) refused to give the child, however, he could able to lift the child and went in the village. PW1 stated that at that time along with her mother (PW2-CW7) and her sister (PW3-CW9 and PW10- CW14) were also present. The witness has further stated that herself and her sister followed the accused who was going towards Kallur village. Though they asked, the accused refused to come back. PW3 has further Crl.A.No.200160/2017 19 stated that when they followed the accused asking for the child Guljar accused threatened them as such they had to returned to the home. PW2 also in her evidence categorically stated that on the said day, the accused lifted her child and took her with him. These specific averments made from none else then, the family members of the accused including his wife, mother-in- law and sister-in-law has not been specifically denied in their cross examination. Even otherwise, the evidence of these witnesses that the accused took deceased girl victim being trustworthy is reliable. Therefore, it is established that the accused on the said afternoon took the deceased baby Guljar victim.
20. Though PW13 and PW14 have also stated that on the said day the accused took baby Guljar victim, however, their statement is based upon the information given to them by PW1. Since as observed above, the evidence of PW1, PW2, PW3 clearly established that on the date of incident in the afternoon, the accused Crl.A.No.200160/2017 20 forcibly has lifted sleeping baby Guljar and had taken victim towards Kallur village.
21. PW1 the wife of the accused has further stated in her evidence that in the evening CW16 (PW15)-Pandhari came to her house and told that accused met him on the road and informed him that he has drowned baby Guljar in the water collected in the stone quarry of Nagappa and asked him to tell the same to her (accused's wife). The witness further stated that next day morning she joined by her mother, sister, brother went to the quarry and searched for the daughter. They could not see floating dead body, as such they informed the police. Thereafter once again joined by the police, all these people went to the water pond in the quarry. The police with help of the other people when searched for baby Guljar, they found her dead body in the bottom of the pond, stating so, the witness has identified the complaint. She has also identified the clothes of her deceased daughter baby Guljar at MO1 and MO2. The Crl.A.No.200160/2017 21 witnesses stated that the police apart from drawing inquest panchanama in her presence have also drawn scene of offence panchanama and collected sample water of the quarry in a bottle which the witnesses has identified as MO3.
22. In the cross examination of PW1, the evidence of witness that having getting the information that her daughter was killed by drowning in the water in a quarry and that the said witness joined by others rushed to the quarry on two occasions and in the second attempt they could trace the dead body of deceased Guljar was not specifically denied.
23. The evidence of PW2 and PW3 about they getting the information about baby Guljar said to have been thrown in the quarry water and they rushing to the spot and finding the dead body of the baby Guljar, after the police and other people coming to the spot and searching for the dead body in the water, have also Crl.A.No.200160/2017 22 remained from being specifically denied in their cross examination. Thus, the evidence of PW1, PW2 and PW3 makes it very clear that just few hours prior to they getting the information of baby Guljar said to have been thrown in the quarry water, thus had witnessed the accused forcibly taking the deceased baby Guljar victim, despite the protest of PW1, the mother of the child. Thus, the prosecution could clearly able to establish that the deceased was lastly found in the company of the accused just prior to her death in the form of drowning in the water collected in the quarry of Sy.No.158 of Kallur village.
24. PW8 (CW12)-Chandrashekar who is the resident of Kallur village and claiming himself to be a person knowing the accused has stated that on the date of incident at about 4 o'clock he saw the accused going on the road at Kallur and shouting that the child has fallen in the water in the quarry and has died. The witnesses stated that after hearing the same, joined by Crl.A.No.200160/2017 23 few other persons, he rushed to the spot shouted by the accused, but could not see any child there. However, on the next day morning, the police and other people gathered at the spot and on search made by the persons from Fire Services, a girl child's dead body was found. The witness further stated that he came to know that the said child is of accused and also further stated that Smt. Sundaram, Smt. Gunavanti, Smt. Ratnamma were also present. In his cross examination rather than denying the statement of the witness made in his examination-in-chief, some more details have elicited which favour the prosecution more than the accused. The witness has stated that his land at Kallur village was only at a distance of quarter kilometer from the stone quarry and the accused was known to him even prior to the incident. He further stated that when he saw the accused going and shouting, he was just 200 feet away from him. Giving these details, he made his presence in Crl.A.No.200160/2017 24 Kallur village and hearing the accused shouting about death of the child are true and believable.
25. PW9 (CW13)- Ratnamma, PW10 (CW14)-
Gunavanti, PW11 (CW15)-Sundaramma who are undisputedly the resident of Kallur uniformly stated that on the date of incident in the afternoon between 3.00 pm to 4.00 pm., while they were in the land, they saw the accused going on Kallur road shouting that a girl child has fallen in the water of the stone quarry and has died. PW9 has gone to the extent of telling that the accused called her and informed the same to her. However, all these three witnesses uniformly stated that after coming to know about the same from the accused, all the three of them went to the said spot, however, they could not see the dead body there.
PW10-Gunavanti and PW11-Sundaramma have further stated that on the next day, police had come to the said spot and brought out the dead body of the girl Crl.A.No.200160/2017 25 child from the water. The said girl child was appearing to be aged 3 years. These two witnesses have identified the clothes at MO1 and MO2 as the ones found on the dead body of the child when the dead body was taken out from the water in the quarry. Except making denial suggestion in their cross examination from the accused side no other attempt was made to shake trustworthyness of the statements made by these three witnesses.
The evidence of these three witnesses, since has been corroborated by the evidence of PW8 that apart from him PW9, PW10, PW11 were also present, it would further makes the evidence of PW9, PW10 and PW11 more believable that it is only after hearing from the accused, they came to know about the alleged incident of death of baby Guljar, that too in the manner of drowning in the water. Undisputedly on the date of incident itself all these witnesses and several others in the village came to know about the alleged death of baby Guljar by drowning in the quarry water and Crl.A.No.200160/2017 26 assembled there, however the dead body of the girl child came to be found and lifted from the water only on the next day morning. Therefore, the alleged incident of death stand proved to have taken place in the afternoon of the date 09.08.2015 between 3.00 pm to 4.00 pm and her dead body came to be traced only on the next day morning.
26. An interesting point which cannot be ignored at this stage itself is that according to all these witnesses i.e. PW8, PW9, PW10 and PW11, the information of death of baby Guljar was given to them by none else then accused and accused only. Therefore, since the accused was found to be lastly in the company of the deceased and it was accused alone who is said to have found moving on the road of Kallur village shouting that girl child was drowned and dead in the water at the quarry, it would be for him to explain as to under what Crl.A.No.200160/2017 27 circumstances he came to know that a girl child was drowned in the quarry water and was found dead.
27. Apart from the above the evidence of PW15 (CW16)-Pandhari a barbar by profession would also go to show that he knows the accused, his wife (PW1) and two children even prior to the incident and he has categorically stated that among the two children of the accused one was a girl child. The witness has stated that on the date of incident while he was going from Bidar towards village Sangam Kalan at about 4 o'clock in the afternoon, he met the accused near Kallur village. He stopped his motorcycle and went to the accused then the accused told him that he has killed his daughter in the water at the quarry and asked this witness to go to his (of the accused) house and inform there. Witness further stated that he went to the village and informed what he heard from the accused to them. Since this witness who was expected to say something more about the incident did not speak about the same, Crl.A.No.200160/2017 28 the witness was permitted to be treated as hostile at the request of the prosecution and prosecution was permitted to cross examination him.
In his cross examination, the witness admitted the suggestions as true to the effect that since the accused stopped him on the said day near a Government school he stopped and it was the accused who gave him the information stating that he had caused the death of his daughter Guljar in the stone quarry water of Nagappa company. Thus, the witness has made it clear that it was not on his own has stopped and wanted to speak to the accused, but it was the accused who stopped him as such he stopped his vehicle and spoke to him.
The evidence of PW15 that accused met him was not categorically denied in his cross examination. On the other hand by making a suggestion to the witness suggesting that the witness does not know as to what Crl.A.No.200160/2017 29 happed after the accused met him, admitted that the accused had met the witness. Otherwise no such suggestion could have been made to the witness suggesting that after the accused meeting the witness, the further developments were not known to the witnesses. Therefore, the evidence of PW16 that accused met him and it was through accused and accused alone, he came to know about the incident of death of girl child due to drowning in the quarry water of Nagappa stands established. The evidence of PW1 that it was PW15 Pandari who informed about the death of baby child by drowning in water at quarry also does not only makes believable, but stands established. In this matter not just PW1 who is the wife of the accused, PW2 and PW3 who are the relatives of PW1 who have spoken about they hearing about the death of baby Guljar due to drowning and that the said information was given to their informant by none else then by accused himself, but their statement also stands corroborated in the evidence Crl.A.No.200160/2017 30 of PW15-Pandhari. Further, the evidence of PW15- Pandhari goes in consonance with the evidence of PW8, PW9, PW10 and PW11 that it was accused and accused alone who was shouting or who had revealed about the death baby Guljar due to drowning. Therefore, when it is established that it was the accused and accused alone who had lastly found in the company of the deceased, once he had taken deceased girl victim forcibly by separating from her mother (PW1), and also when it was once again the very same accused who revealed to the word about the death of baby girl Guljar, as such even under Section 106 of Indian Evidence Act, it was for the accused to whose exclusive knowledge the incident or the fact which might have taken place from the time of the child, he has taken into custody till her death was there, then it was for him to explain as to how the death of deceased baby Guljar was caused. It also cannot be ignored of the fact that the time between the accused taking baby Guljar from the house of her mother till PW8, PW9, PW10, Crl.A.No.200160/2017 31 PW11 and PW15 hearing from the accused about the death of baby Guljar being too short of not more than two hours, the suspicion regarding the hands of any other person or occurrence of any other incident, without to the knowledge of the accused can be imagined. As such also it has to be inferred that the cause for death of baby Guljar was to the exclusive knowledge of the accused who was in custody of that minor child. Therefore, it was for him to explain.
Admittedly, the accused has not made any efforts to explain as to the incident that have taken place, after he taking baby Guljar victim from the house of PW1 and till the death of the child. He has not even come up with any defense in that regard including in his statement recorded under Section 313 of Cr.PC. as to when, how and in what manner he came to know about the death of his child. Particularly when PW1 to PW3 have stated that they were eye witnesses to the act of the accused taking child with them and PW18, PW11 and PW15 categorically Crl.A.No.200160/2017 32 stated that it was from shouting or statement of the accused they came to know that the girl child was found dead due to drowning in the quarry water. In that regard, even though the evidence of PW15 go to show that the accused has made voluntary confession before him which cannot be relied solely to hold a person guilty of the alleged offence but the evidence of PW8, PW10 and PW11 which have found to be trustworthy and believable that accused was shouting that a girl child died in the quarry water due to drowning, the evidence of PW15 that he too met the accused on the same road and also spoke to him where the accused told him that he has caused the death of baby Guljar cannot be brushed aside rather it creates confidence to believe the same. The death of baby Guljar if were not to be to the sole knowledge of accused and if there were any other person from whom or by any incident by which the accused had come to know about the death of baby Guljar, then Crl.A.No.200160/2017 33 definitely he should have taken such a defense atleast in the form of suggestions to any of the prosecution witnesses or in his statement under Section 313 of Cr.P.C. However, as observed above, the accused except suggesting PW1 and PW2 in their cross examination to the effect that deceased child slipped into the quarry water and died, had not made any attempt of placing any specific defence in his support. The said suggestion made to the witnesses also have been denied by the witnesses. Therefore, the finger from all the directions point only towards the accused and accused alone for the death of baby child Guljar.
28. The motive behind the crime as placed by the prosecution is in two fold. The first point of motive is that the accused was addicted to consumption of liquor and was the habit of assaulting his wife regularly and repeatedly. The evidence of PW1, PW2, PW3 speaks about the same and have remained not specifically denied. Secondly, all these three witnesses i.e. PW1, Crl.A.No.200160/2017 34 PW2, PW3 have also stated that the accused had a great dislike towards the deceased child and he had a strong suspicion that the said child was not his. PW3 has gone to extent of stating that on one occasion, the accused had even attempted to kill the said child which made her sister (PW1) to leave the child in the house of PW13- Rasheed (the brother of PW1). Even PW1 has also stated that due to cruelty meted by the accused, she had left her daughter (deceased) in the house of PW13- Rasheed. Even wife of PW13 also had stated that accused was addicted to liquor and the deceased child was left in their house by her mother. These statement of witnesses have not been categorically denied in their cross examination. As such, the statement of these witnesses shown for motive behind the crime that accused who was said to be eking livelihood at Mumbai for some point of time was seriously suspecting that the deceased child was not born to him. It is apprehending some danger to the life of the child, the mother had left Crl.A.No.200160/2017 35 the child at the house of PW13. PW1 and PW13 were not giving the custody of the child to the accused. However, the accused was frequently quarrelling seeking the custody of the victim child. However, on the date of incident, he was succeeded in entering the house of his wife i.e. his mother-in-law's house where he too was residing with his wife and could able to take away the sleeping child Guljar with him. Attempt made by PW1, PW2 and PW3 to secure the child back was spoiled by him by threatening them of dire consequences. However, within couple of hours thereafter the child was declared as dead by none else than himself. These links in the chain of the events which are inter linked with each other have been clearly established by the prosecution through the evidence of the above said witnesses. The evidence of Investigating Officers i.e. PW24 and PW25 are corroborated by the evidence of the above said material witnesses. Thus each of the link in the chain of events have been undoubtedly proved by the prosecution beyond Crl.A.No.200160/2017 36 reasonable doubt which only goes to show that the accused and accused alone has caused the death of his child baby Guljar. Since it is nobody's case including that of accused that the act of causing the death of baby Guljar was either due to grave and sudden provocation or by any such act which can be called as exception to Section 300 of IPC, the act of the accused not just results into an act of homicidal, but an act of murder of his own daughter baby Guljar. Since the trial Court after appreciating the material placed before it in their proper perspective has arrived at a proper conclusion holding the accused guilty of proving the offence, we do not find any reason to interfere in it. Further, though the offence under Section 302 of IPC is punishable with the sentence of imprisonment for life up to death penalty. However, the trial Court after considering the principle that the sentence ordered for proved guilt to be proportionate to the gravity of the proved guilt has sentenced the accused Crl.A.No.200160/2017 37 with rigorous imprisonment for life and a fine of `.10,000/- . In case of default to pay fine amount to undergo further simple imprisonment for a period of three months, we do not find the said sentence ordered is either excessive or arbitrary. Hence, we do not find any reason even to modify the sentence. Accordingly, we proceed to pass the following:
ORDER The appeal stands dismissed as devoid of merits.
Registry to transmit a copy of this judgment along with learned Sessions Judge's Court records to the concerned Sessions Judge's Court, immediately.
Sd/-
JUDGE Sd/-
JUDGE SMP