Judgment

SARKARIA, J.:- The respondent Kondiba, aged about 55 years, was tried and convicted for the murder of a boy, named Laxman aged about 2 years, by the Sessions Judge, Satara, and sentenced to imprisonment for life. On appeal, the High Court of Bombay acquitted him.

2. The State has now come in appeal by special leave under Article 136 of the Constitution against the order of acquittal.

3. The prosecution case was as follows:

Kondiba works as a barber. He was living in a hut in the hamlet of village Chaturbet. He was married to one Jaibai and had from her two daughters but no son. The daughters were married. In order to get a son, Kondiba decided to marry a second wife Anjira, the mother of the deceased boy, Laxman, was earlier married to one Bapu Shripati Pawar of village Devle. She, however, had developed illicit intimacy with one Shantaram Pawar of village Vakan, and became pregnant. As a result, her husband, Bapu Sripati Pawar, drove her out of the matrimonial home for good and repudiated the marriage. Anjira thereupon returned to the house of her father, Dharma Babaji Sapkal in Vakan village. There, she gave birth to Laxman. Kondiba approached Anjiras father and requested him to remarry Anjira with him but he was initially unwilling to take Laxman with him. Laxman was then 1 1/4 or 1 1/2 years of age. However, ultimately, the marriage was settled on the condition that the respondent would keep and bring up Laxman also in his house along with Anjira. At the time of this settlement, some writing was also executed between the parties. The marriage of the respondent and Anjira thus took place towards the end of March 1968. Thereafter, Anjira and Laxman started living with the respondent and his first wife, Jaibai in the Nhavyache Gaothan of village Chaturbet.

4. Despite the assurance given by the respondent to Anjiras father, the respondent started ill-treating the child, Laxman and giving him frequent beatings. Anjira complained about this conduct of the respondent to the villagers, including PWs. 1 and 4, and also to her father.

5. On October 10, 1968, in the morning, Anjira went away from the hut to fetch water from a tank at a short distance, leaving behind the respondent, her son Laxman, and Jaibai in the hut. She returned and went a second time to fetch more water from the tank. At this time also, Laxman and the respondent both were present at the hut. But when on this second occasion she returned with water, she found that both Laxman and the respondent were missing. She asked Jaibai regarding the whereabouts of Laxman. Jaibai told her that Kondiba had taken Laxman with him for leaving him with Leela and Kala, two neighbouring girls, who were out in the fields to graze cattle. Leela and Kala returned to the hut at about 9-30 a.m. Anjira asked them whether Kondiba had left Laxman with them. She learnt from those girls that the boy was never left with them. Anjira and Jaibai, accompanied by the two girls then set out in search of the boy but could not find him. The respondent returned home at about 5 or 5-30 in the evening from Manghar where he used to work. Anjira asked him regarding the whereabouts of Laxman. The respondent gave no reply. The respondent and his cousin Anusuya then went to the Police Patil of the village and reported about the disappearance of the boy. A desultory search was made during the night in the village. Next morning, the Patil collected a large number of villagers and organized a search party which was divided into three batches. Each batch went to search for the boy in a different sector. One batch, which included the respondent and PWs Janu Lakhu Dhabe, and Ambaji Kondi Jadhav, proceeded towards the rocky terrain which is at a distance of about three or three and half furlongs from the hut of the respondent. This batch found the dead-body of Laxman at the foot of a cliff. Janu was the first to notice it there. All the three search batches then gathered at that spot. The Patil, Janu and the r