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2014 Supreme(Bom) 2430
IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
B.R. Gavai & V.M. Deshpande, JJ.
Kavita – Appellant
Vs.
State of Maharashtra – Respondent
Criminal Appeal No. 336 of 2003
Decided On : 24.11.2014
Advocate Appeared:
For Appellant:R.M. Daga, Advocate.
For Respondent: T.A. Mirza, A.P.P.
Headnote:[INDIAN] PENAL CODE, 1860 - Section 302 Murder Proof of. Though it was alleged against accused appellant that he caused death to his newly born child but there was evidence of any eye-witness as to alleged incident and hence, in absence of motive, conviction of appellant was set aside. It is clear that it was noticed on 6.10.2001 the yellowness in the eyes of the new born baby. Since the doctor suspected something, therefore, the doctor thought it fit to do blood test which unfortunately could not be done. Further, doctor is unsure as to whether the baby was suffering from jaundice or not.
It is to be observed further that at the time of conducting inquest, it was noticed that from the nostrils white froth was being discharged. Even PW 11 Dr. Seema who has conducted the post-mortem, has also noticed at the time of post-mortem has also noticed the frothy liquid from the nostrils.
In this backdrop, the following admission by Dr. Seema assumes importance :
"It is true to say that the death of the said baby was caused due to failure of respiratory system first. Such failure might have been caused due to some obstacles in the nose."
From the aforesaid circumstances and facts which are appearing in the prosecution case, it is absolutely clear that, with confidence, the prosecution cannot state that the death was homicidal one inasmuch as the possibility of the natural death is not completely ruled out.
The other factor is that in the present case there is no eye-witness account. The entire case was based on the circumstances. Time and again, it has been ruled that the cased which is completely based on circumstantial evidence, in such cases, motive assumes importance. In the present case, the prosecution has utterly failed to attribute any motive. In that behalf, the Judge of the Court below while convicting the appellant, has observed in paragraph 22 of the judgment as under :
"Due to such conception prior to the marriage, there is a possibility that Kavita may have committed the crime."
Further, the baby was found to be dead in the hospital. It was not in the exclusive domain of the appellant. Moreover, the evidence of PW 7 Khushali, Nurse, in order to attribute the act of committing something by the present appellant to her baby if closely examined, does not inspire any confidence. The appellant cannot be convicted on such evidence appearing in the prosecution case.
V.M. Deshpande, J.
1. The appellant is convicted of the charge of filicide by learned 2nd Addl. Sessions Judge, Chandrapur on 9th May, 2003 in Sessions Trial No. 148 of 2001 and was directed to suffer imprisonment for life and to pay a fine of Rs. 1,000/- and in default, to suffer rigorous imprisonment for three months. It is to be mentioned here that along side the appellant, her husband-Gajanan was also charged for offence punishable under Section 109 read with Section 302 of the Indian Penal Code by learned Session Judge; however, he was acquitted by the said judgment.
2. The prosecution case as it is unfurled during the course of the trial, can be narrated herein-below:
The appellant was married with Gajanan on 6.5.2001. She came in the dispensary of Dr. Shrikant Nagmoti (P.W.5) on 22.6.2001 to show her health. She disclosed to Dr. Shrikant that she has missed her menstrual cycle since about one and half month. Dr. Shrikant examined her per abdomen at which he found that size of her abdomen was quite big and estimated that the foetus in womb might be twenty weeks old and, as such, he advised her to do sonography. He issued a prescription letter to her which is at Exh. 50.
3. P.W. 6-Dr. Vishram Nakade is an Radiologist. He runs an X-ray and Ultrasound Clinic at Bramhapuri. On being referred by Dr. Shrikant Nagmoti, the appellant-Kavita came to his Clinic. On 3.7.2001, he did sonography test at the womb of Kavita. He issued the report Exh. 52. According to said report, the age of the foetus was about 22 weeks. He handed over the report of sonography film to Kavita.
After sonography, Kavita again came to the Clinic of Dr. Shrikant on 4.7.2001 along with her husband-Gajanan.
4. P.W.3-Dr. Kishor Jiwane and his wife P.W.4 - Dr. Saroj Jiwane runs a Hospital in Bramhapuri town under the name and style Dr. Jiwane Maternity and Nursing Home. P.W.4-Saroj Jiwane is a Gynaecologist.
On 4.10.2001, the appellant along with her husband came to the said Nursing Home having labour pains. Dr. Saroj Jiwane performed the delivery on Kavita on 4.10.2001 at 1.15 p.m. The delivery was safe and the child was hale and hearty.
On 7.10.2001 at about 8.00 a.m., sister Khushali Kumare (P.W.7) gave a message to Dr. Saroj Jiwane that the child of Kavita was not making any movement. Since that time, Dr. Saroj was busy in her domestic chores, P.W.3 Dr. Kishor Jiwane attended and examined the child. Dr. Kishor Jiwane told Dr. Saroj that the child was not breathing and, therefore, she came down from her house located upstairs and examined the child.
5. Since it was a sudden death, Dr. Kishor Jiwane lodged a report under his signature with Police Station Bramhapuri (Exh. 43). He also issued medical certificate in his own handwriting (Exh. 44).
6. Sunil Uike (P.W. 9) was posted to Police Station Brahmapuri as P.S.I. On 7.10.2001 Dr. Kishor Jiwane came to Police Station and lodged report (Exh. 43) that a newly born baby of Kavita died in suspicious circumstance. On its basis, an A.D. report No. 36/2001 was registered by ASI Pandhari Sahare who entrusted the papers for further investigation to Sunil Uike. In pursuance to the said, Sunil Uike went to the spot of the incident and prepared Inquest Panchnama (Exh. 41) and also the Spot Panchnama (Exh. 59). He sent the dead body of deceased baby for its postmortem examination. He registered an offence punishable u/s. 302 r/ws. 109 of the IPC against Kavita and her husband. Thereafter, the investigation was entrusted to Nilesh Raut (P.W.10). On 14.10.2001 he arrested the couple. After completion of investigation, it was found by Nilesh Raut that there appears strong evidence against the accused persons and, therefore, charge-sheet was filed in the Court of law.
7. Since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Clas Brahmapuri passed the order of committal and committed the case to the Sessions Court. After it being committed to the Court of Sessions, it came
