apeal36.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.36 OF 2004
Vijaysingh s/o Amarsingh Jadhav
Aged 41 years, Occupation Nil,
R/o Parkhed, Tal. Mehkar,
District Buldana. ....... APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Janefal,
District Buldana. ....... RESPONDENT
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Ms. Radhika G. Bajaj, Advocate holding for Shri Anand
Jaiswal, Senior Counsel for Appellant.
Mrs. M.H. Deshmukh, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
12 SEPTEMBER, 2017.
ORAL JUDGMENT
1] Challenge is to the judgment and order dated
28.03.2003 in Sessions Trial 26/2002 delivered by Ad hoc Additional Sessions Judge, Buldana, by and under which, the appellant is convicted of offence punishable under section 304 paragraph 2 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.500/-. The accused is however, acquitted of offence punishable under ::: Uploaded on - 13/09/2017 ::: Downloaded on - 15/09/2017 01:14:32 ::: apeal36.04.J.odt 2 section 309 of I.P.C.
2] The appellant (herein after referred to as "the accused") is the unfortunate father of the deceased Bandu whose life is cut short at the age of 3, admittedly by accidental consumption of insecticide. The accused is charged and convicted by the learned Trial Court for offence committed culpable homicide not amounting to murder by acting negligently. 3] Heard Ms. Radhika Bajaj, the learned counsel for the accused and Mrs. M.H. Deshmukh, the learned Additional Public Prosecutor for respondent/State.
4] Ms. Bajaj, the learned counsel for the accused submits that the judgment impugned is manifestly erroneous and against the weight of the evidence on record. She would submit, that even if the evidence is taken at face value, the accused cannot be convicted under section 304 paragraph 2 of Indian Penal Code. This submission, is of course in the alternate and without prejudice to the contention that the evidence on record is either unreliable or is otherwise grossly inadequate to bring home the charge of culpable homicide not amounting to murder, the sine ::: Uploaded on - 13/09/2017 ::: Downloaded on - 15/09/2017 01:14:32 ::: apeal36.04.J.odt 3 quo non to constitute which offence is either intention to cause death or to cause such bodily injury as is likely to cause death or the knowledge that the act is likely to cause death although the intention may be absent.
5] The learned counsel for the accused would submit that the prosecution examined as many as 13 witnesses. The witnesses can be categorized into two sets, first set comprising family members, neighbour and a friend of the neighbour and the second category comprising experts, the Executive Magistrate who recorded the statement of the accused (according to the prosecution the accused attempted to commit suicide by consuming insecticide and the statement of the accused was recorded as dying declaration) and the investigators. Ms. Bajaj, the learned counsel would submit that every witness in the first set has turned hostile and has not supported the prosecution. She would further submit that nothing is brought on record in the cross-examination of the witnesses who have not supported the prosecution.
6] The learned counsel would further urge that although the learned Sessions Judge correctly observed that the prosecution ::: Uploaded on - 13/09/2017 ::: Downloaded on - 15/09/2017 01:14:32 ::: apeal36.04.J.odt 4 case is based only on circumstantial evidence, the reasoning of the learned Sessions Judge to record findings of guilt is fallacious and borders on perversity.
7] The learned A.P.P. supports the judgment impugned. She submits that there is no infirmity in the reasoning of the learned Sessions Judge.
8] I have given my anxious consideration to the evidence on record and to the reasoning of the learned Sessions Judge. Having done so, I am impelled to agree with the submission of the learned counsel for the accused that the judgment impugned is manifestly erroneous.
9] Concededly, even according to the prosecution, the three years old child of the accused died due to accidental consumption of insecticide. The conviction is inexplicable. The essential ingredient of the offence is either the intention of causing death or doing of the act with the knowledge that it is likely to cause death. In view of the scathing criticism of the learned counsel that the conviction is based on no evidence, I have attempted to ascertain as to whether there is any material ::: Uploaded on - 13/09/2017 ::: Downloaded on - 15/09/2017 01:14:32 ::: apeal36.04.J.odt 5 on record to even suggest much less prove beyond any reasonable doubt that the accused did any act with the knowledge that the act is likely to cause death, but in vain.
10] Irrespective of the fact that 13 witnesses have been examined, I am inclined to agree with the learned counsel for the accused that the conviction is based on no evidence. There is absolutely nothing on record to suggest that the accused is guilty of an act or an omission and that he knew that such act or omission will cause death of his own child.
11] The judgment impugned is clearly erroneous and cannot sustain the scrutiny of law even for a moment. 12] The judgment impugned is set aside. The accused is acquitted of offence punishable under section 304 of I.P.C.
13] The bail bond stands discharged.
14] The fine amount paid, if any, by the accused shall be
refunded to him.
JUDGE
NSN
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