High Court
Legal Reasoning
-1- Cri.Appeal.515.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.515 OF 2004Kashabai W/o. Madansingh Kakarwal, (Rajput), Age : 40 years, Occu. : Labour, R/o. Bhagatsingh Nagar, Waluj, Taluka : Gangapur, Dist. Aurangabad… Appellant. VersusThe State of Maharashtra, Through Police Sub-Inspector,Police Station Waluj,Taluka Gangapur, Dist. Aurangabad… Respondent.…Mr. P. N. Sonpethkar, Advocate for AppellantMr. Rajdeep D. Raut, APP for Respondent – State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 30th JULY, 2024PRONOUNCED ON : 9th AUGUST, 2024JUDGMENT : 1.In this appeal, there is challenge to the judgment andorder of conviction recorded by Ist Ad-hoc Additional SessionsJudge, Aurangabad on 26.11.2002 in Sessions Case No. 262 of2002, recording guilt and sentencing appellant for commission ofoffence punishable under section 304 Part II of Indian Penal Code(IPC).IN SHORT PROSECUTION VERSION IN TRIAL COURT IS AS UNDER2.Appellant delivered male child on 19.04.2002 in the
Decision
-2- Cri.Appeal.515.2004maternity hospital of PW1 Dr. Gangawal. She sought dischargeand took the new born away. However, she caused head injury tothe infant, resulting his death and thereafter disposed of the deadbody on Aurangabad - Ahmednagar Road. PW3 Santosh noticeddead body and approached Waluj police station and lodged reportat Exh.17. Police machinery swung into action and investigationwas carried out by PW8 P.I. Dasare, who after gathering evidence,arrested accused and charge-sheeted her and she was tried beforeIst Ad-hoc Additional Sessions Judge, Aurangabad vide SessionsCase No. 262 of 2002. The trial culminated into conviction for above offence.Present appeal is offshoot of said conviction.EVIDENCE ON RECORD3.PW1 Dr. Anil Gangawal, who ran maternity hospitalnamed Leela Nursing Home, deposed about appellant hospitalizedfor delivery and she giving birth to a male child and gettingdischarge, he carried certificate and medical papers (Exhs.13 and14) PW2 Syed Bibi, neighbour of appellant, stated that, shehad accompanied to the hospital of PW1 Dr. Gangawal for deliveryof appellant and appellant delivered a male child. On the next day,she saw accused appellant passing from the rear side of her house -3- Cri.Appeal.515.2004along with her son and daughter, but she was not carrying the newborn delivered on previous day. She identified dead body of the newborn. PW3 Santosh, informant, who, while on morning walknoticed dead body of the new born on Aurangabad-Ahmednagarroad and approached Waluj Police Station. PW4 Harun is a pancha to inquest panchanama atExh.13. PW5 Raosaheb, Police Head Constable, who drewinquest panchanama, spot and cloth seizure panchanama andreferred dead body for postmortem. PW6 Rashid is a pancha to seizure of clothes of accused(Exh.27). PW7 Dr. Parshuram Kothekar, Autopsy Surgeon, whoissued opinion as probable cause of death due to head injury. PW8 P.I. Dasare, the Investigating Officer, whoconducted investigation and charge-sheeted accused.SUBMISSIONS On behalf of Appellant :- 4.Learned counsel for appellant would submit that, thereis false implication and in absence of cogent, reliable and -4- Cri.Appeal.515.2004trustworthy evidence, he pointed out case is based oncircumstantial evidence. According to him, none of thecircumstances were so compatible or complete in nature so as tohold appellant responsible. He pointed out that, there is noevidence that, she is responsible for the death of the new born. Hepointed out that, there is no evidence or witness in support ofprosecution version that she caused head injury. Therefore,according to him, learned trial court ought not to have acceptedthe prosecution version and convicted the accused. Therefore, heprays that, the judgment under challenge is required to be set asideby allowing the appeal. On behalf of Prosecution : -5.In answer to above, learned APP submitted that, thereis strong and reliable evidence demonstrating and substantiatingthat accused delivered baby in the hospital of PW1 Dr. Gangawal.Such doctor has been examined. It is pointed out that, PW2 SyedBibi, immediate lady neighbour, who had accompanied accused forgetting admitted for delivery, has also been examined. She hadseen the new born. She has also spotted accused appellant on thevery next day without new born. That, dead body of new born wasabandoned and disposed of on a road. Complaint to that extent wasreceived from a citizen. That, thorough investigation revealed -5- Cri.Appeal.515.2004involvement of appellant and therefore, learned trial courtcommitted no error in accepting the case of prosecution and so it isprayed the appeal be dismissed. ANALYSIS6.Here, guilt recorded by trial court for offencepunishable under section 304 Part II of IPC i.e. culpable homicidenot amounting to murder. On careful scrutiny and analysis of evidence of PW1 Dr.Gangawal and PW2 Syed Bibi, it is emerging that, appellant gotadmitted for delivery in the hospital of PW1 Dr. Gangawal. In hismaternity home PW1 Dr. Gangawal performed delivery ofappellant at around 3:50 p.m. He also deposed that, she tookdischarge on her request. This doctor has placed medical papersExhs.13 and 14. He has identified accused to be the same lady,who had come for delivery and he also gave her name. His suchtestimony has not been rendered doubtful or shaken.7.Likewise, testimony of PW2 Syed Bibi also goes to showthat, she is immediate neighbour and she had accompaniedaccused appellant to the hospital of PW1 Dr.Gangawal. She is verycategorical about male child being born. She has spotted accusedpassing behind the back of her house on the very next day without -6- Cri.Appeal.515.2004the infant. She has also visited mortuary and identified the deadbody of infant. Therefore, even her evidence has not been rendereddoubtful in the cross examination. Thus, the testimony of PW1 Dr.Gangawal and PW2 Syed Bibi categorically established thataccused gave birth to a male child and after taking discharge fromthe hospital, new born was in her custody.8.PW3 Santosh, a morning walker, had spotted deadbody of infant abandoned on a road while he was on a walk in themorning of 20.04.2002. He had immediately reported the same topolice and on the strength of the same, FIR has been lodged. Evenhis testimony has remained intact in spite of being cross examined.9.PW7 Dr. Parshuram, who conducted postmortem,deposed about conducting autopsy and issuing opinion regardingdeath of infant and regarding head injury. In cross examination, doctor has answered that, therewas possibility of fracture if head of infant is hammered with forceand that head injury noticed in column no.19 is possible by stone.He also admitted that, said injury is possible if the delivery is notperformed by gynecologist, i.e. while taking out the the infant outof uterus. However, he volunteered that, injury noted in columnno.19 is not possible due to forceps. -7- Cri.Appeal.515.2004 Therefore, autopsy doctor’s opinion about death due tohead injury is also proved by prosecution.10.The above discussed evidence shows that, appellant isthe mother of the infant, who was born in the hospital of PW1 Dr.Gangawal. It is a maternity home, where she herself got admittedfor delivery. Doctor has identified accused in the court. PW2 SyedBibi, independent witness and a neighbor, who accompanied andadmitted her in hospital, was present at the time delivery has seenthe male child. After two days, this witness has seen appellantwithout the infant. The infant was noticed by PW3 Santosh in deadcondition, but wrapped and abandoned on a public road. Autopsysurgeon confirmed death due to head injury. There is, both, directevidence on the point of admission for delivery and giving birth toa male child, who was spotted dead. PW2 Syed Bibi has identifiedthe dead body to be the baby of appellant. Circumstances of beingabandoned and spotted by independent witness clearly shows thatappellant is responsible for the death. There was no explanationfrom her assigning any reason for the death of her own child andreason for abandoning the dead child. Consequently, there isevidence against appellant for being responsible for death of herchild. -8- Cri.Appeal.515.200411.Learned trial court has correctly appreciated theavailable evidence. The conclusion drawn and the view taken bylearned trial Judge seems to be the possible view that could emergewith such quality of evidence on record. There is no illegality orperversity in the finding arrived at by the learned trial court.Accordingly, I proceed to pass the following order :-ORDERThe Criminal Appeal stands dismissed. (ABHAY S. WAGHWASE, J.) Tandale