Bombay High Court Sanjay S/O Ranganathrao Garud-vs-The State Of Maharashtra Through on 7 March, 2008
Author: V Kingaonkar
Bench: V Kingaonkar
V.R. Kingaonkar, J.
1. This appeal is directed against judgement rendered by learned Sessions Judge, Parbhani, in Sessions Case No. 43 of 2007 whereby appellant, named above, has been convicted for offence punishable under Section 304 II and 323 of the I.P. Code and is sentenced to suffer rigorous imprisonment for five (5) years and to pay a fine of Rs. 2000/-, in default to suffer rigorous imprisonment for three (3) months and rigorous imprisonment for one (1) month and to pay a fine of Rs. 200/-, in default to suffer rigorous imprisonment for seven (7) days, respectively.
2. Briefly stated, the prosecution case before the Trial Court, was that after marriage between the appellant and informant Sow. Meera, he used to harass her due to demand for unpaid dowry amount. The marriage was performed on 22nd April, 2004. She became pregnant and was taken away by her father to his house, for her delivery. She delivered a weakling and premature female baby. She returned to house of the husband after the appellant made separate arrangement for his residence. They used to reside separately. A parcel of land was also allotted to him by his parents. He used to demand an amount of Rs. 10,000/-from her parents. She was being troubled by him due to nonfulfillment of such unlawful demand.
3. On 13th January, 2007, PW Manoj who is brother of informant Sow. Meera, visited house of the appellant to meet her. Her brother met her and left house of the appellant somewhere in the evening when the appellant was not at home. The appellant returned home in the night time. The female child by name Sakshi aged about one and half year, was in slumber. The appellant inquired with informant Sow. Meera as to whether her brother had brought the amount so demanded by him. She told him that her brother did not bring any amount. The appellant was infuriated. He slapped informant Sow. Meera and all of a sudden, lifted the female child – Sakshi, whirled her around and hit the child on chest and back of informant Sow. Meera. Before he could realize as to what had happened, the female child became unconscious and her pupils were dilated. The pupils of the child became white and evidently, the child became breathless. The appellant took the child to a local doctor in the same night. Thereafter, the female child was rushed to the Government Hospital at Parbhani. The Medical Officer declared that the child was no more. The parents of informant Sow. Meera visited house of the appellant immediately in the next morning. They took her to Police Station at Tadkalas. She lodged a report against the appellant about the incident, including the past incidents of matrimonial cruelty. Thereupon, the police conducted investigation. The dead-body of minor female child – Sakshi was subjected to post mortem examination. Consequent upon material gathered during the investigation, the appellant alongwith his parents were prosecuted for offence punishable under Sections 302, 498A, 323 and 504 read with Section 34 of the I.P. Code.
4. To the charge (Exh-9), the appellant pleaded “Not guilty”. He denied truth in to the accusations. He suggested defence of accidental death of the minor child. According to him, the child had fallen from the cot before he went home.
5. At trial, in all six (6) witnesses were examined in support of the prosecution case. The learned Sessions Judge held that the charge for offence of matrimonial cruelty was not proved against either of the accused. They were acquitted of the offence punishable under Section 498A of the I.P. Code. So also, the parents of the appellant were acquitted of the offence punishable under Section 302 of I.P. Code in as-much-as they did not assault the minor female child – Sakshi and did not aid or in any manner abet the appellant in causing her death. The learned Sessions Judge, however, came to conclusion that though the appellant had no intention to cause the death of female child, yet, he had reason to know that his act would cause the death of child. He had the knowledge that by violent hitting of the child on the person of informant Sow. Meera, the child was likely to die. In keeping with such finding, the appellant was convicted for offence punishable under Section 304 II of the I.P. Code. So also, the learned Sessions Judge believed that the appellant slapped the informant Sow. Meera in the relevant night and as such, committed offence punishable under Section 323 of the I.P. Code. He was, therefore, convicted and sentenced as stated at the outset.
6. By consent of the parties, the appeal was heard finally at the stage of admission.
7. Short question for determination is whether the appellant is author of the death of minor child Sakshi, aged about one and half year, or that there is ring of truth in his defence that she had fallen from the cot and, hence, died.
8. Mr. Shinde, would submit that conduct of the appellant reveals his innocence. He pointed out that immediately the appellant asked informant Sow. Meera as to what had happened to the child. He would submit that probably informant Sow. Meera was also sleeping at the relevant time when the child had fallen down from the cot and was unaware as to what had happened. He would argue that due to misunderstanding, PW Sow. Meera lodged a false report. He further contended that the appellant is not a harden criminal and, hence, alternatively, benefit of probation could be granted to him. Per contra, the learned A.P.P. supports the impugned judgement.
9. Out of the six (6) witnesses examined by the prosecution, PW1 Sow. Meera and PW4 Dr. Sayyed Juned are the most material witnesses. The version of PW Dr. Juned reveals that post mortem examination indicated a contused abrasion over right frontal region, an abrasion over right infront orbital region and an abrasion over right ear of deceased Sakshi.
According to him, these injuries were caused by some hard and blunt object within 24 hours and were ante-mortem. The internal examination revealed extra dural haematoma of size 4 x 2 x 2 cms., over right frontal hemisphere and intra cerebral multiple hemorrhage. In other words, the death was result of the hemorrhagic shock. The post mortem notes (Exh-40) are corroborated by PW Dr. Sayyed Juned. He stated that the cause of death was the extra dural haematoma which was on the frontal region of the body and must have been caused with force. He further states that if the child was hit on chest or back of another person, then such haematoma was possible. He admits that if the child of one and half year would fall from a cot on rough surface, then the contusions and lacerated wounds may occur. He, however, states that in such a case, the injuries sustained by the child would be of superficial nature.
10. PW Sow. Meera is mother of deceased Sakshi. Her testimony purports to show that deceased Sakshi was hardly of 2.75 pound weight. She was born immature. The baby was of less weight. Naturally, she was a weakling child. This fact was known to the appellant. Obviously, it was expected of the appellant that he will take care of the child. The mother would not normally attribute false charge of ghastly acts in relation to the child to the childs father. The version of PW Sow. Meera reveals that there were incidents of ill-treatment to her. Her version reveals that the incident of the night time was the aftermath of the visit of her brother to house of the appellant. Her brother did not give any amount. The appellant asked Sow. Meera whether her brother had brought the amount which was demanded earlier. He was annoyed when she gave negative reply. Her version reveals that the incident occurred around 11 p.m. The appellant slapped her and hit her with the minor child. Her version reveals that the eyes of the child became white and thereafter the appellant asked her as to what had happened to the daughter. He took the daughter to his parents and they tried to serve water to the child, but she was no more. The version of PW Sow. Meera is duly corroborated by the medical opinion.
11. The defence version is that the child fell down from the cot due to accident and as such, died. If that was so, the first re-action of the appellant would have been to inform such fact to the concerned police. He could have narrated the story atleast to the Medical Officer after reaching the child to the hospital. In any case, he could have informed immediately to the neighbours. There is no corroboration available from the circumstances to the defence suggested by the appellant. Nor the medical evidence lends assurance, in any manner, to such line of defence.
12. The version of PW3 Manoj reveals that he visited house of the appellant on day of the incident i.e. 13th January, 2007. His version reveals that he is younger brother of informant PW Sow. Meera. She told him that the appellant wanted Rs. 10,000/-for construction of house. He returned home by about 6 p.m. and informed his parents about the demand of Rs. 10,000/-. His version reveals that when he visited house of the appellant, then the appellant was not at home. The recitals of the F.I.R. (Exh-34) are partly corroborated by PW Manoj. He is aged about fifteen years. He has no business to speak lie. His version cannot be thrown over board only because he is younger brother of informant PW Sow. Meera. So also, the version of PW2 Manchak who is father of informant PW Sow. Meera, would show that the appellant used to make unlawful demands for money.
13. The testimonies of PW5 Kondiba and PW API Gautam are of formal nature. A rough sketch of the spot was drawn by PW Kondiba. His version corroborates the rough sketch (Exh-42). It transpires from the recitals of the admitted spot panchanama and the rough sketch that the incident occurred in the western side room. The version of API Gautam reveals that a cable wire and a leather belt were seized from house of the appellant when spot panchanama (Exh-26) was drawn.
14. Once it is found that defence of the appellant is quite irrational and highly improbable, there is no reason to dislodge the version of PW Sow. Meera. Inspite of matrimonial cruelty felt by her, she used to reside with the appellant. She could not have levelled false charge against the appellant without there being substantial reason to do so. It is duly proved that the child received the haematoma on the frontal right temporal region due to violent hitting. The mere fall of the child on the ground, due to accident, could not have taken the toll. Under these circumstances, I am in general agreement with the findings of the Trial Court. There cannot be any manner of doubt that the incident occurred due to sudden annoyance which prevailed on mind of the appellant. It is well said : “entry of the anger is exit of the reason”. The accused lost balance of mind. He was excessively annoyed. I am convinced that he angrily hit the minor female child against back and chest of PW Meera. Hence, the child died. The learned Sessions Judge rightly convicted him, therefore, for offences punishable under Section 323 and 304 II of the I.P. Code.
15. So far as benefit of probation is concerned, learned advocate Mr. Shinde, would rely on certain observations in “Bhupesh Ramchandra More v. State of Maharashtra 1994 (1) Crimes 2”. The observations in the given case relate to provision of Section 6 of the Probation of Offenders Act where the accused was aged below 21 years. In such a case, consideration of probation is mandatory. Herein, the accused is of 24 years age. He is a married man and had no reason to behave cruelly with the minor child. So also, reliance placed on “Ved Prakash v. State of Haryana ” by learned advocate for the
appellant, is misplaced. With great respects, it may be said that Section 360 of the Code of the Criminal Procedure is not attracted in the fact situation of the present case as well as in view of the settled legal position. It is well settled that in view of Section 19 of the Probation of Offenders Act, where provisions of the Probation of Offenders Act are applicable, Section 360 of the Code of Criminal Procedure cannot be applied. Hence, the alternative argument advanced on behalf of the appellant is also unavailable to him and will have to be rejected.
16. Considering the foregoing reasons, I have no hesitation in holding that the appeal is meritless. Hence, the appeal fails and is accordingly dismissed.