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2020 Supreme(Bom) 737
IN THE HIGH COURT OF BOMBAY
R.D. Dhanuka, Surendra P Tavade, JJ.
Kamlabai Tukaram Gharat - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 363 of 1995
Decided On : 11-08-2020
Kishor Dattaram Walanju, Advocate, M.M. Deshmukh, Advocate
The main legal point established in the judgment is the reliance on circumstantial evidence to establish guilt under Section 302 of the IPC.
Headnote:
Indian Penal Code - Abandonment of Child - Section 302 - Summary
Fact of the Case:
The appellant was convicted for the ofence punishable under Section 302 of the Indian Penal Code for abandoning and subsequently causing the death of a newborn female child. The child was found abandoned near a bus stand, taken to a hospital, and later found dead in the maternity ward. The appellant was found to have delivered the child and was in possession of the child at the time of death.
Finding of the Court:
The court found the appellant guilty of the ofence punishable under Section 302 of the IPC based on circumstantial evidence, including the abandonment of the child, the good physical condition of the child prior to death, and the appellant's possession of the child. The court dismissed the appeal and upheld the conviction.
Issues: The issues revolved around the abandonment and subsequent death of the child, the appellant's possession of the child, and the motive behind the ofence.
Ratio Decidendi: The court relied on the circumstantial evidence, including the appellant's possession of the child and the absence of any other individual near the child at the time of death, to establish guilt under Section 302 of the IPC.
Final Decision: The appeal was dismissed, and the appellant was directed to surrender bail and undergo the remaining sentence.
JUDGMENT
S.P.Tavade, J. - The appellant-original accused has preferred this appeal against the Judgment and Order passed against her by the learned Additional Sessions Judge, Raigad-Alibaug in Sessions Case No.83 of 1994. The appellant is convicted for the ofence punishable under Section 302 of the Indian Penal Code and sentenced to sufer imprisonment for life and to pay fne of Rs.1000/- in default to sufer rigorous imprisonment for three months. The appellant is acquitted for the ofence punishable under Section 317 of the IPC. The State has not preferred appeal against the said order of acquittal.
2. The facts giving rise to the present appeal can be summarized as under:-
The informant (PW-10) is resident of New Sheva, Tal. Uran. On 10.11.1993 at about 7.15 a.m. he left his house to attend the duty. He reached near Sheva ST stand. He saw a mob of men and women near the ST stand. He saw one newly born female child lying beside the road. She was alive. He along with Sanjay Mhatre went to Uran police station and lodged a report (Exhibit 21). Meantime, Anant Gharat (PW-11) also reached at the spot. He saw infant lying besides the road. He asked others to help him, but nobody helped him. Hence, he took the said female child to his house. His mother Hirabai (PW-6) gave bath to the child. She also gave milk to the child. Hirabai (PW-6) reported the matter to police-patil of the village. Meantime, police as well as police-patil came to the house of Anant Gharat. Police made enquiry with Hirabai and others. Hirabai informed that she saw the appellant/accused as pregnant. Therefore, police called the appellant/accused.
3. The police took Hirabai, child and appellant/accused to Uran police station. All of them were referred to Rural Hospital, Uran. As there were no proper facilities to treat the child, the child was referred to the Civil Hospital, Alibaug. Police Constable Anagha Hukeri (PW-4) and Nazir Sharif (PW-7) brought the appellant/accused and child to the Civil Hospital at 8.00 p.m. Medical Ofcer Dr. Archana Prabhu (PW-8) examined the child as well as appellant/accused and admitted them to maternity ward. The appellant/accused and child was allotted Cot No.4. Medical Ofcer directed Anagha Hukeri (PW4) to keep watch on the appellant/accused and child. She took permission of her head nurse and went to the washroom. At about 9.00 p.m. nurse attached to maternity ward found that the child was movementless. Hence, Dr. Ajit Gawali (PW-12) was called, who examined the child and declared her dead. Dr. Baby Gawappa Patil (PW-9) performed postmortem on the child. She opined that the child died due to strangulation. Hence, crime bearing No.89/1993 was registered against the appellant/accused.
4. The appellant/accused was put under arrest. The statements of witnesses were recorded. The Investigating Ofcer took blood samples of appellant/accused as well as the child and sent for chemical analysis. After completion of investigation, charge-sheet came to be fled against the appellant/accused under Sections 317 and 302 of the IPC before the learned Magistrate, Uran. As the ofence was exclusively triable by the Court of Session, it was committed to the Court of Sessions at Alibaug. Charge (Exhibit 3) came to be fled against the appellant/accused under Section 317 and 302 of the IPC. The appellant/accused pleaded not guilty and claimed to be tried. The prosecution has relied on the evidence of as many as 14 witnesses. The appellant/accused did not lead any oral evidence.
5. On going through the evidence on record, the Trial Court, acquitted the appellant under Section 317 of the IPC, but convicted her for the ofence punishable under Section 302 of the IPC and sentenced her to sufer life imprisonment and also imposed fne of Rs.1000/- and in default directed her to undergo rigorous imprisonment for three months. The said impugned judgment is under challenge.
6. Heard Mr. Kishor Walanju, appointed advocate for the appellant/accused. He submits that t
