Santosh Kacharu Walunje v. State of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 584 OF 2023Santosh Kacharu WalunjeAge: 45 years, Occu.: Labour,R/o Galle Borgaon, Tq. Khultabad, Dist. Aurangabad..APPELLANTVERSUSState of MaharashtraThrough : Police Station, Veergaon, Tq. Vaijapur, Dist. Aurangabad..RESPONDENT....Mr. S.G. Bobde, Advocate for appellantMrs. S.N. Deshmukh , A.P.P. for respondent – StateMr. N.S. Ghanekar, Advocate for assist to Court.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.DATE : 04th MARCH, 2025ORAL JUDGMENT :1.The challenge in this appeal is to a judgment of conviction andorder of consequential sentence imposed on the appellant for offencepunishable under Section 302 of the Indian Penal Code (‘I.P.C.’) by the Courtof Sessions, Vaijapur on 01st August, 2022 in Sessions Case No.48 of 2019.The appellant has, therefore, preferred the present appeal.2.The facts giving rise to the present appeal are as follows :-The appellant alongwith his mother, wife and four minor childrenwould reside at Galle Borgaon, Tq. Khultabad, Dist. Aurangabad. In the1 / 8 APEAL-584-23.odtafternoon on 28th December, 2018, the appellant dropped his two minorchildren in a well. The children died of drowning. The reason behind thecommission of offence was his quarrel with his wife.3.The dead bodies of both the children were found floating in thewell of PW 9 – Bapusaheb. The report in that regard was lodged (Exh.47).A case of unnatural death was registered. During enquiry thereof, identity ofthe deceased children was established. It was further revealed that theappellant had left the house with both the children after quarrel with his wife.He roamed with the children at various places, such as road side eatery, stayed at the house of one of his relations overnight and travelled in a tempoand on a motorbike. All these persons were contacted and their statementswere recorded. PW 1 - Harishkumar, Police Officer attached to VeergaonPolice Station lodged the First Information Report (‘F.I.R’) (Exh.27). Theappellant was arrested. During enquiry of unnatural death / enquiry underSection 174 of the Code of Criminal Procedure (‘Cr.P.C.’), inquest andautopsy were conducted. After completion of investigation, the appellant wasproceeded against by filing the charge-sheet.4.The trial Court framed the charge (Exh.11). The appellantpleaded not guilty. His defence was of false implication.5.The prosecution examined sixteen witnesses and produced inevidence certain documents. The trial Court, on appreciation thereof,2 / 8 APEAL-584-23.odtconvicted the appellant and consequentially sentenced to imprisonment forlife and to pay fine of Rs.5,000/- with default stipulation.6.Learned counsel for the appellant would submit that the case wasbased on circumstantial evidence. The appellant had allegedly left the houselong before the dead bodies of his children were found. The well, whereinthe dead bodies were found, had no protective wall. Our attention wasdrawn to the crime scene panchanama (Exh.23) and even photographs ofthe well to indicate one side of the parapet wall of the well was not at place. Learned counsel meant to say that the children might have fallen in the wellaccidentally. A slightest of benefit of doubt would come to rescue of theappellant. Even the statement of his wife was recorded twelve days after theincident. All was not well between the appellant and his wife. She has, therefore, every reason to speak against him. The other witnesses, whoclaimed to have seen the appellant with his children, were unknown to theappellant. The Investigating Officer did not hold test identity parade. Learned counsel further submits that brother-in-law of the appellant wasinimical with him. According to learned counsel, all in all it is a case basedon circumstantial evidence. None of the circumstances relied on have beenduly established pointing towards the guilt of the appellant excludinginvolvement of anyone else. He, therefore, urged for allowing the appeal.7.Learned A.P.P. would, on the other hand, submit that wife of theappellant had no reason to speak against him, at the cost of her marital3 / 8 APEAL-584-23.odtrelation. The appellant nowhere disputed he left the house with the children.He, therefore, owes explanation as to what he did with the children. Section106 of the Indian Evidence Act was strongly relied on. The reasons given bythe trial Court were reiterated to ultimately submit for dismissal of the appeal.8.Considered the submissions advanced. Perused the judgmentimpugned herein. The case is based on circumstantial evidence. It would, therefore, be not out of place to refer to the judgment of the Apex Court incase of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984SC 1622, wherein it has been observed thus :-“(1) The circumstances from which the conclusion of guilt is to bedrawn should be fully established. The circumstances concerned‘must or should’ and not merely “may be” established;(2) The facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty;(3) The circumstances should be of a conclusive nature andtendency;(4) They should exclude every possible hypothesis except the oneto be proved; and(5) There must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”9.Let us advert to the evidence on record and appreciate the same. Admittedly, the dead bodies of the two children of the appellantwere found in a well at village Savarkhed on 29th December, 2018. A report4 / 8 APEAL-584-23.odt(Exh.47) was lodged in that regard by PW 9 – Bapusaheb, the well owner. His evidence indicates that he had visited his field in the evening on 29thDecember, 2018. He saw bodies of two children floating in his well. He,therefore, made report (Exh.47) to Veergaon Police Station. During his cross-examination, he admitted that his well did nothave an iron cap. He further admitted that anybody can accidentally fall inthe well. Police recorded his statement 4th/5th day post finding of the deadbodies.10.Based on his report (Exh.47), case of unnatural death wasregistered. It was enquired into by PW 1 – Harishkumar, Assistant PoliceInspector, attached to Veergaon Police Station. His evidence indicates thatduring enquiry he could find out identity of the deceased children. Fromfurther enquiry he found the appellant to be their father. The trio (theappellant and his two deceased sons) had been seen roaming. They hadvisited various places and traveled in vehicles. He contacted all suchpersons and ultimately found that it was the appellant, who dropped hischildren into the well. He, therefore, lodged the F.I.R. (Exh.27).This witness was subjected to a searching cross-examination. Hebeing the enquiry and investigating officer, whatever material he collectedduring the same, would either hit by hearsay, and therefore, cannot be actedupon solely based on his testimony. What can be proved by the reportlodged by PW 9 – Bapusaheb and the evidence of this witness was that deadbodies of two minor children of the appellant were found in the well on 29th5 / 8 APEAL-584-23.odtDecember, 2018. The postmortem reports (Exh.70 & 71) indicate thechildren died of drowning.11.Now it is to be found out whether the children died accidentally orthe appellant committed their murder.12.PW 13 – Sunita is the wife of the appellant. She testified that on26th December, 2018 there was quarrel between her and her mother-in-law. The appellant was at his workplace by that time. The appellant would workas waiter with one hotel. Somebody informed him of the quarrel. Theappellant came home. He slapped his wife. The appellant then left thehouse taking with him his two minor children. Some days thereafter policehad made enquiry with her. She narrated them the incident. During her cross-examination, she testified that she had marriedthe appellant fifteen years back. Her husband (appellant) had no vices. Shedid not lodge any report against the appellant with the police station aboutassault by him or taking away the children with him and to have not returned. She further testified that her statement was recorded by police thirteen daysafter the incident. According to her, anybody might have committed thecrime.13.PW 2 – Ganesh was the appellant’s employer (hotel owner). Hisevidence does not further the prosecution case. PW 3 – Nitin’s evidence toois irrelevant. PW 4 – Annasaheb was a landlord, in whose premises the6 / 8 APEAL-584-23.odtappellant would reside on rent. He testified that on the following day i.e. on27th December, 2018 the appellant’s wife (PW 14) had come to his groceryshop and related him the appellant to have left the house with their two minorchildren after quarreling with her. Evidence of this witness reinforces theevidence of PW 14. PW 5 – Sarita was a distant relative of the appellant. Her evidence indicates that the appellant and his two children had been toher residence. They stayed overnight there on 26th December, 2018. On thefollowing day the trio took meals and left the house.14.So far as the other prosecution witnesses viz. PW 7 – Arjun, PW 6– Amjad Khan and PW 8 – Dnyaneshwar are concerned, they claimed tohave seen the appellant with his two children. One of these three witnessesis a hotelier. The other one claimed to have given lift to the appellant and histwo children on his motorbike, while the third one claimed to have given themlift in his tempo. Admittedly, the Investigating Officer did not hold test identityparade. The evidence of these witnesses, therefore, would be of littleconsequence.15.We have the evidence of the wife of the appellant. Her evidenceindicates that the appellant, after having quarreled with her, left the housetaking their two children with him. PW 5 – Sarita, appellant’s relative, testified the appellant and his two children had stayed at her house overnighton 26/27th December, 2018. The appellant did not specifically dispute theevidence of these two witnesses. His examination under Section 313 of the7 / 8 APEAL-584-23.odtCr.P.C., is silent to state where he was at the material time. It is reiteratedthat his wife has no reason to testify against her husband at the cost of hermarital future. As such, the fact that the appellant after quarreling with hiswife left with his two children, gets proved. Since the children were too small, it is for him to explain what he did with them or when he parted theircompany. The appellant offered no explanation in that regard. The onlyconclusion, therefore, that could be drawn is that the appellant and none elsedropped his children in the well with an intention to kill them or knowing fullywell the consequence thereof would be death of his children. We, therefore, find the trial Court to have rightly convicted the appellant.16.In the result, criminal appeal fails. The same, therefore, standsdismissed. However, the quantum of sentence of three months in default ofpayment of fine of Rs.5,000/- is reduced to ten (10) days. With thismodification of the order impugned herein, the appeal stands disposed of.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD8 / 8