1 apeal34.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.34/2016
Sau. Usha W/o Balaji Bhoyar,
aged about 30 Yrs., R/o Wangi,
Tq. and Distt. Washim. ..Appellant.
..Versus..
State of Maharashtra,
through Police Station Officer,
Police Station, Washim Rural,
Distt. Washim.
ig ..Respondent.
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Shri S.D. Chande, Advocate for the appellant.
Ms. N.P. Mehta, A.P.P. for the respondent.
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CORAM : Z.A. HAQ, J.
DATE : 25.2.2016
JUDGMENT
1. Heard Shri S.D. Chande, advocate for the appellant and Ms. N.P. Mehta, A.P.P.
for the respondent.
2. This appeal is listed for hearing on admission and for suspension of sentence.
At the time of hearing, it transpired that the appellant has filed the notes of evidence and the appeal itself can be disposed of. Hence the appeal is admitted and taken up for final hearing.
::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 06:37:49 :::2 apeal34.16 The case of the prosecution is that the appellant along with her 11 month old daughter jumped in the well around 3 to 3.30 a.m., the appellant survived, however, Shraddha (minor daughter of appellant) died because of drowning. On receiving this information, crime came to be registered against the appellant for the offence punishable under Section 309 and 302 of the Indian Penal Code. After completing the investigation and the necessary formalities, the charge-sheet came to be filed before the learned Judicial Magistrate First Class and as the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the matter came to be committed to the Sessions Court. The Sessions Court framed the charge which was denied by the appellant and, therefore, the trial came to be conducted and the judgment is passed by the learned Sessions Judge convicting the appellant for the offence punishable under Section 304-II of the Indian Penal Code and sentenced her to suffer rigorous imprisonment for 5 years and to pay fine of Rs.500 and in default to undergo simple imprisonment for 15 days. The appellant is also convicted for the offence punishable under Section 309 of the Indian Penal Code, however, separate sentence is not imposed.
The appellant being aggrieved by the judgment passed by the Sessions Court has filed this appeal.
3. I have examined the evidence of the witnesses, with the assistance of the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 06:37:49 ::: 3 apeal34.16 learned advocate for the appellant and the learned A.P.P. There is no eye witness of the incident. The Sessions Court has concluded that the appellant is guilty, considering the fact that 11 month child was unable to move and could not have on herself gone to the well, that the appellant and her husband were having knowledge that the body of victim was in the well and that the water sample collected from the clothes of the appellant, which she was wearing at the time of the incident, supported the claim of the prosecution that the appellant had jumped into the well. Thus, the conviction is based on the circumstantial evidence.
However, I find that the prosecution has failed to establish that the facts are consistent only with the hypothesis of the guilt of the accused and that the chain of evidence is so complete that there is no reasonable ground for the conclusion consistent with the innocence of the accused and show that by any human probability the offence is committed by the accused. The conclusion that the water collected from the clothes of the accused was same as that of the well, is without any basis.
4. Therefore, the judgment passed by the learned Sessions Judge convicting the appellant for the offence punishable under Section 304-II of the Indian Penal Code cannot be maintained. For the same reasons, the judgment convicting the appellant for the offence punishable under Section 309 of the Indian Penal Code is liable to be set aside.
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5. Hence, the following order:
(i) The appeal is allowed.
(ii) The judgment passed by the learned Sessions Judge, Washim in Sessions
Case No.127/2013 on 13th January, 2016 is set aside and the appellant is acquitted of the offence punishable under Section 304-II and 309 of the Indian Penal Code.
(iii) If the custody of appellant is not required in any other case, she shall be released forthwith.
(iv) The fine amount deposited by the appellant, if any, be refunded to the appellant.
JUDGE Tambaskar.
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