High Court
Legal Reasoning
Cri.Appeal No.58/2022:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.58 OF 2022Somnath s/o Shivaji SalunkeAge 32 years, Occ. Nil,R/o Sanjay Nagar, Latur,Tq. & dist. Latur, presently at-Central Prison, Aurangabad … APPELLANTVERSUSThe State of Maharashtra Through Police Station Officer,Vivekanand Chowk Police Station,Latur, Tq. & Dist. Latur(Copy to be served on PublicProsecutor, High Court of Judicatureof Bombay, Bench at Aurangabad)… RESPONDENT.......Mr. V.P. Savant, Advocate for appellantMr. N.R. Dayama, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.DATE :12th JULY, 2024 JUDGMENT (PER R.G. AVACHAT, J.) : The challenge in this appeal is to a judgment andorder of conviction and sentence, dated 18/9/2021, passed bylearned Sessions Judge, Latur in Sessions Case,No.116/2019. Vide impugned judgment and order, the Cri.Appeal No.58/2022:: 2 ::appellant was convicted for the offence punishable underSection 302 of the Indian Penal Code and, therefore,sentenced to suffer imprisonment for life and to pay a fine ofRs.5000/- with default stipulation.2.The facts giving rise to the present appeal are asfollows : The First Information Report(F.I.R.) (Exh.36) waslodged by P.W.1 Madhuri. She is wife of the appellant. It isher case that, she was married the appellant way back in June2014. The couple was blessed with children, Soham aged 2years and Swapnil, 8 months old (deceased). It is her casethat, after birth of Swapnil, the appellant started harassing andill-treating her. The appellant wanted to have a baby girl.Moreover, since it was a pre-mature birth of Swapnil, theappellant started suspecting her (P.W.1) fidelity. He, therefore,beat up Swapnil often.3.It is further her case that, about 7 days before10/8/2019, the appellant stretched both the legs of Swapnil inopposite direction of each other. Swapnil suffered fracture Cri.Appeal No.58/2022:: 3 ::thereby. Her mother-in-law was away at some other village. Itis further her case that, on 10/8/2019, the appellant returnedhome at 11.00 Hrs. in the morning. He started beating upSwapnil. He hit on the head of Swapnil with stone grinder(pestle). She, therefore, went to her neighbour’s house toreport the matter and then took Swapnil to hospital. Thedoctor, on examining, declared Swapnil to have been broughtdead. She, therefore, approached Vivekanand Chowk PoliceStation, Latur and lodged the F.I.R. Crime vide C.R.No.344/2019 for the offence punishable under Section 302 ofthe Indian Penal Code came to be registered at VivekanandChowk Police Station, Latur.4.During investigation, crime scene panchanama(Exh.43) came to be drawn. Inquest panchanama (Exh.39)and autopsy (Exh.60) were conducted on the mortal remains ofdeceased Swapnil. Clothes of deceased Swapnil came to beseized vide seizure panchanama (Exh.41). The appellantcame to be arrested vide arrest panchanama (Exh.40).Clothes on the person of the appellant too were seized underseizure panchanama (Exh.42). A pestle and and spatula alsocame to be seized from the scene of offence. All the seized Cri.Appeal No.58/2022:: 4 ::articles were sent to Forensic Science Laboratory, for analysis.Statements of persons acquainted with the facts andcircumstances of the case were recorded. Upon completion ofinvestigation, charge sheet was filed before the Court oflearned Judicial Magistrate, First Class, Court No.1, Latur, whoin turn, committed the case to the Court of Sessions, Latur.5.The learned Sessions Judge (Trial Court) framedthe Charge (Exh.9). The appellant pleaded not guilty. Hisdefence was of false implication.6.To establish the charge, the prosecution examined8 witnesses and produced in evidence certain documents. Onappreciation of the evidence in the case, the learned TrialCourt convicted and consequently sentenced the appellant asstated above.7.Heard. Learned Advocate for the appellant wouldsubmit that, P.W.1 Madhuri was an interested witness. Theprosecution came with a case of two motives, (1) Theappellant wanted a baby girl and (2) Swapnil being bornprematurely. He disowned himself to be the father of the child Cri.Appeal No.58/2022:: 5 ::(Swapnil). The prosecution did not prove motive. Theevidence of rest of the witnesses, namely the neighbour washearsay. Although the post mortem report indicates 15injuries, most of them were not caused by the appellant andthose had occurred about 8 – 10 days before the fateful day.According to learned Advocate, there used to be frequentquarrel between the appellant and his wife. Swapnil being 8months old, accidentally fallen on the ground from the hands ofP.W.1 Madhuri herself. He would further submit that, elderbrother of Swapnil being immature, used to jump over body ofSwapnil. Swapnil thereby died. According to learnedAdvocate, the appellant is behind the bars for years together.There is no one to look after his mother and elder son as well.According to him, the evidence of the prosecution fell short tobring home the charge beyond reasonable doubt. He wouldfurther submit that, one Shyamal Atya to whom P.W.1 Madhuriused to relate the happenings, was not examined. LearnedAdvocate ultimately urged for allowing the appeal.8.Learned A.P.P. would, on the other hand, submitthat, it is an open and shut case. P.W.1 Madhuri, wife of theappellant did not have any reason to give evidence against her Cri.Appeal No.58/2022:: 6 ::own husband, putting her matrimonial life at stake. Accordingto him, the incident took place within the four-walls of a house.There could, therefore, be no independent witness. The factthat, legs of Swapnil were in plaster reinforce the prosecutioncase that the appellant had pulled legs of Swapnil in oppositedirection of each other, causing severe injuries, some daysbefore he killed him. The learned A.P.P. reiterated the reasonsgiven by the Trial Court in support of the impugned judgmentand order. He ultimately urged for dismissal of the appeal.9.Considered the submissions advanced. Perusedthe evidence on record and the judgment as well. Let usappreciate the same.10.Admittedly, the appellant married P.W.1 Madhuriway back in June 2014. The couple was blessed with twosons, Soham (3 year old) and Swapnil (deceased), 8 monthsold. The couple along with their children and the appellant’smother would reside together. It is case of the prosecutionthat, all was well between the couple until birth of Swapnil. It isjust unpalatable that the appellant wanted the second baby tobe a girl child. It was suggested on behalf of the appellant Cri.Appeal No.58/2022:: 7 ::himself in the cross-examination that, birth of Swapnil waspremature. The appellant would suspect fidelity of Madhuri.Be that as it may. When the case is based on eye witnessaccount, the prosecution is not under obligation to provemotive.11.P.W.4 Dr. Dharmaraj was Medical officer atGovernment Medical College, Latur. He was on duty on11/8/2019 from 8.00 a.m. to 8.00 a.m. of the next date (roundthe clock). It is further in his evidence that, the PoliceConstable Surwase had brought a dead body of Swapnil forpost mortem examination. He conducted post mortem. Hefound following external injuries on the person of Swapnil :-(1)Abrasion present on right frontal region, 5 cm. frommiddle and 7 cm. from right ear, of size measuring 3 x 1cm. dark red colour.(2)Multiple abrasion present on right parietal region rangingfrom of size 1 x 0.5 cm. to 0.5 cm. x 0.3 cm., dark redcolour.(3)Multiple contusion present on forehead, of size rangingfrom 3.5 cm. x 2.5 cm. to 1 x 0.5 cm. red in colour. Cri.Appeal No.58/2022:: 8 ::(4)Contusion present on nose, of size measuring 1.9 x 0.8cm. red in colour.(5)Contusion present on right cheek, 1 cm. below right eyeof size measuring 4.3 cm. x 2.1 cm. red in colour.(6)Contusion present on left cheek, 1 cm. below left eye, 3.5cm. x 3.2 cm., red in colour.(7)Abrasion present on upper lip, in midline, inner aspect, 1x 0.5 cm., dark in colour.(8)abrasion present on right side of neck, 2 cm. below rightear and 2.5 cm. above middle 1/3rd of clavicle of sizemeasuring 4.7 cm. x 3.2 cm., dark red colour.(9)Contusion present on abdomen, 3 cm. belowxiphisternum upto umbilicus, of size measuring 14 x 6.8cm., red in colour.(10)Contusion multiple present on right lumber region ofabdomen, of size ranging from 3 x 2.5 cm. to 1 x 1 cm.,red in colour.(11)Contusion present on hypogastric region of abdomen, 3cm. below umbilicus and 3.5 cm above pubic symphysisof size measuring 3.5 cm. in diameter, red in colour.(12)Contusion present on right thigh, middle 1/3rd region, 4 x3.2 cm., greenish yellow in colour. On opening evidence Cri.Appeal No.58/2022:: 9 ::of fracture of right femur shaft, middle 1/3rd region,obliquely placed with blood infiltration seen insurrounding tissue, fractured margins are wellapproximated showing signs of partial healing.(13)Abrasion present in right hypochondriac region, onabdomen, of size measuring 1.5 cm. x 1 cm., dark redcolour.(14)abrasion present on right side of back, 8 cm. belowinferior angle of right scapula 7 cm. from midline of back,of size measuring 2.8 cm. x 1.5 cm., dark red colour.(15)Contusion present on left forearm, middle 1/3rd region,posterior aspect, 6 cm. below elbow joint, verticallyplaced, of size measuring 6.9 cm. x 2 cm. red in colour.On internal examination, the Medical Officer alsofound contusion under scalp on right fronto-parieto-occipitalregion, 9.8 cm. x 6.5 cm., dark red colour. Haematoma underscalp on right temporal region, 3.9 cm. x 2.5 cm. dark redcolour.12.On skull, the Medical Officer found linearundisplaced fracture of right temporal bone, vertically placed
Legal Reasoning
Cri.Appeal No.58/2022:: 10 ::3.8 cm. in length with blood infiltrated margin, injuries on brainregion, Meninges intact, subdural blood clot in occipital lobe 25grams. in weight, subarachnoid haemorrhage on right parietallobe 6.2 cm. x 4.1, dark red colour. On abdomen, he foundcontusion present on abdominal wall muscle, 3 cm. frommidline on right hypochondriac region of abdomen 4 cm. indiameter, red in colour and contusion present on abdominalwall muscle, in left hypochondriac region of abdomen, 2 cm.from midline, 4.8 cm. x 3.9 cm., red in colour. 13.All the above injuries were ante-mortem. In hisopinion, Swapnil died of head injury. The post mortem report(Exh.60) states cause of death as “head injury”. The MedicalOfficer P.W.4 Dharmaraj was categorical to rule out the headinjury to be possible by sudden fall of a child on head in scufflebetween a couple. The doctor has, however, admitted that,rest of the injuries were simple in nature except thigh fracture. 14.P.W.1 Madhuri, wife of the appellant testified that,she married appellant way back on 16/6/2014. They had twosons, Soham and Swapnil. After birth of Swapnil, appellantSomnath started quarreling with her. He (appellant) would say Cri.Appeal No.58/2022:: 11 ::that he wanted a baby girl. He, therefore, started beating upSwapnil. The appellant used to put red pepper in the eyes andmouth of Swapnil. He would ask Soham to bite Swapnil. Heused to beat her (P.W.1 Madhuri) as well and ask her to leavethe house. 15.It is further in her evidence that, about 8 daysbefore the incident, her mother-in-law was away at villageAurad. The appellant pulled both the legs of Swapnil inopposite direction. 8 days thereafter, mother-in-law returned.Having seen health condition of Swapnil, she took him tohospital after 2 days. The doctor asked them to admit Swapnilto hospital. The appellant refused. It is further in her evidencethat, she thereafter took Swapnil to the hospital. The doctorapplied plaster on his leg.16.It is further in her evidence that, the incident tookplace on 10/8/2019. appellant questioned her as to how andwhy the plaster was applied to Swapnil. The appellantthereafter assaulted Swapnil with spatula. He then gave him(Swapnil) fist and kick blows. The appellant then hit on headof Swapnil with pestle, took Swapnil to the hospital. Doctor Cri.Appeal No.58/2022:: 12 ::examined him and declared dead. She thereafter approachedthe Police Station and lodged the report against the appellant.Report (F.I.R.) is at Exh.36. It is further in her evidence that,her statement was also recorded by a Court. We referred toher statement (recorded under Section 164 of the Cr.P.C.). Itis at Exh.38.17.She was subjected to a searching cross-examination. It was suggested to her that, birth of Swapniltook place within 7-8 months of conception. She denied thatSwapnil was weak since birth. She denied that, in the birthcertificate of Swapnil it was stated that he was born prematureand, therefore, was weak. She denied the appellant wastaking fatherly care of both the children. She denied that, thereused to be frequent quarrels between her and the appellantsince it was the appellant alone who would take care of boththe children. She, however, admitted that there used to bequarrels between her and the appellant due to her mother-in-law. This admission is not unusual. She denied that she wasinsisting the appellant to live separately i.e. away from hismother and brother-in-law. She denied that Soham, the elderson, used to jump on the person of Swapnil. It appears that, Cri.Appeal No.58/2022:: 13 ::the suggestion was put to bring on record that injuries sufferedby Swapnil were as a result of Soham jumping on person ofSwapnil. It is further in her evidence that, she had related theincident to one Shyamal Atya and Radha Magar. It is true that,Shyamal Atya was not examined. In the facts andcircumstances of the case, we find non-examination ofShyamal Atya to be not fatal. True, P.W.1 Madhuri wasconfronted with her F.I.R. which is silent to record that theappellant would ask elder son to bite Swapnil. However, closereading of the F.I.R. would indicate that P.W.1 Madhuri’s oralevidence before the Court has been corroborated/ reinforcedby the F.I.R. Exh.36 and even her statement under Section 164of the Cr.P.C. (Exh.38).18.Exh.39 is the inquest panchanama. Column 17thereof indicates that Swapnil died due to beating. Column9(viii) indicates that, right leg of Swapnil was in plaster. Thisfact too reinforces P.W.1 Madhuri’s case that 8 days before theincident the appellant had stretched Swapnil’s legs and,therefore, the leg was required to be plastered. Column No.16of inquest further indicates various injuries on the person ofSwapnil. We find no inconsistency between inquest Cri.Appeal No.58/2022:: 14 ::panchanama (Exh.7) and post mortem report (Exh.60).19.P.W.2 Radha was the immediate neighbour ofP.W.1 Madhuri. P.W.1 Madhuri testified that, she used to relatethe incident to her neighbour Radha. It is in the evidence ofP.W.2 Radha that, Madhuri used to tell her that appellant wouldfrequently quarrel with her and used to beat younger sonSwapnil. She even testified that she was related by Madhurithat the appellant would put chilly powder in the eyes ofSwapnil. It is further in her evidence, about 8 to 12 daysbefore the incident, she (P.W.2) was cleaning utensils outsideher house. She saw Madhuri taking Swapnil with her. Madhurirelated her the appellant to have pulled the legs of Swapnil inopposite direction and therefore she was taking Swapnil to thehospital.20.True, since the incident took place in the house,P.W.2 Radha and other neighbours namely P.W.3 Gitabai andP.W.7 Shankar could not be said to have an occasion towitness the incident of assault made by appellant, wherebySwapnil passed away. P.W.2 Radha’s evidence indicates that,she heard Madhuri weeping. Madhuri had been to her Cri.Appeal No.58/2022:: 15 ::residence to ask for her mother-in-law’s cell phone number.She accompanied Madhuri to her residence. She saw Swapnilwith his eyes closed.21.During her cross-examination, it was suggestedthat there used to be frequent quarrels between the appellantand Madhuri. It was further suggested that, no neighbourwould intervene to subside quarrel. She admitted to have notwitnessed the incident of appellant beating up his son Swapnil.22.P.W.3 Gitabai is another witness residing in theneighbourhood of the appellant. It is in her evidence that,Madhuri used to tell her that appellant, under the influence ofliquor, would beat up her and their son. It is further in herevidence that, about 12 days before the incident, she metMadhuri on way. Madhuri was taking her son to the hospital.That time Madhuri told her the appellant to have pulledSwapnil’s legs. This statement made to Gitabai soon after theincident would very much be admissible in evidence tocorroborate Madhuri’s evidence before the Court by her ownprevious statement to Gitabai (Section 157 Evidence Act). Cri.Appeal No.58/2022:: 16 ::23.The evidence of P.W.3 Gitabai further indicatesthat, on 8/8/2019, there was crowd in front of the house of theappellant. P.W.1 Madhuri was crying. She told the appellantto have killed her son. The police then came and took thechild to the hospital.24.Our attention was drawn to paragraph 4 of thecross-examination of P.W.3 Gitabai, wherein she has notstated arrival of police and taking the child to hospital andappellant to the Police Station. 25.P.W.5 Daivat was a Police Head Constable. Hehad carried seized articles to Forensic Science Laboratory,Aurangabad vide forwarding letter (Exh.62). P.W.6 Baliramwas another police official who carried other muddemal articlesto Forensic Science Laboratory, Nanded vide forwarding letterExh.65. 26.P.W.7 Shankar is another witness residing in theneighbourhood of the appellant. It is in his evidence that, on10/8/2019, Madhuri had been to his house. He asked for cellphone of her mother-in-law. Madhuri (P.W.1) was crying. On Cri.Appeal No.58/2022:: 17 ::enquiry, she told the appellant to have assaulted Swapnil. It isfurther in his evidence that, she had brought her child to herhouse at the say of his wife. He noticed the child to havenodded.27.This witness appears to have been supporting boththe prosecution and the appellant as well since he admitted incross-examination to have never heard appellant to haveassaulted Soham. The suggestion was in respect of elder sonand not Swapnil. He was suggested that, there used to bequarrels between appellant and Madhuri.28.P.W.8 Dayanand did the investigation of the crime.29.On appreciation of the evidence on record, wereach to the conclusion that, there used to be frequent quarrelsbetween appellant and his wife Madhuri (P.W.1) post birth oftheir second child Swapnil. The evidence of neighboursindicate that there used to be frequent quarrels. Even 8-10days before the fateful day, the appellant had stretched legs ofSwapnil in opposite direction with each other. The neighbourshad seen Madhuri taking the child to hospital and related the Cri.Appeal No.58/2022:: 18 ::said incident to them immediately (P.W.2 Radha) and P.W.4Gitabai. The same reinforces Madhuri’s case that theappellant was cruel with his second child Swapnil. It wassuggested to Madhuri in her cross-examination that, Swapnilwas born prematurely. The same explicitly suggests theappellant to have suspected her fidelity. Madhuri (P.W.1) beingwife of the appellant, had no reason to speak against herhusband putting her matrimonial life at stake. Nothing of thatsort was brought on record through her cross-examination.Even she was not suggested that child suffered head injuryaccidentally. P.W.4 Dr. Dharmaraj ruled out the head injury(cause of death) to be the result of fall on the ground. It needsno mention that, for proof of a fact, no particular number ofwitnesses are required to be examined (Section 134 Evidenceact). The appellant’s case that Swapnil fell down and fracturedhis leg found to be false. We find the evidence of P.W.1Madhuri to be reliable and inspiring confidence. The same hasbeen reinforced by evidence of P.W.2 Radha and P.W.3Gitabai. The medical evidence further reinforces her case.We, therefore, find the Trial Court to have rightly convicted theappellant and sentenced him accordingly. As such, nointerference with the impugned order of conviction and
Decision
Cri.Appeal No.58/2022:: 19 ::consequential sentence is warranted. In the result, the appealfails. The appeal, therefore, stands dismissed. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-