Suhasini Sunil Chavan vs State Of Maharashtra
2002 Latest Caselaw 29 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant-accused was tried for the murder of her own child under Section 302 of Indian Penal Code and was found guilty of the same. The learned Sessions Judge vide judgment dated 28-2-1997 sentenced the Appellant to undergo imprisonment for life and fine of Rs. 500/-in default, further rigorous imprisonment for three months. The period of detention during custody from 8-10-1995 to 28-2-1997 was set-off under Section 428 of Criminal Procedure Code.

2. The prosecution case in nutshell is that the appellant got married with Sunil Chavan P.W. 1 on 14-5-1995 and delivered a fully grown child on 3-10-1995. On 8-10-1995 at about 7.00 a.m. the husband of the appellant as also her in-laws went to field and returned therefrom at about 9.00 a.m. for taking breakfast. During this intervening period the appellant was alone in the house. When Sunil Chavan P.W. 1, husband of the appellant and his parents returned they found the child was lying near the appellant and upon enquiries the appellant told them that the child had drunk milk and was sleeping. Sunil Chavan-P.W. 1 was further told that the child had swelling over the stomach in the night and in order to verify this fact Sunil Chavan removed the towel from the body of the child and found that the breathing of the child had already stopped and the child was dead. Sunil Chavan P.W. 1 asked the appellant about the same and she told him that as the child was not his, she had pressed nose and mouth of the child and killed him. Thereafter an FIR was lodged with the police and after completion of the investigation the appellant was put under trial.

3. In support of the charge the prosecution had examined in all seven witnesses. The trial Court believed the evidence of Sunil Chavan P.W. 1. husband of the appellant, Gangabai Chavan P.W. 2, mother-in-law of the appellant and Radhabai Chavan P.W. 3. aunt of the husband of the appellant as also medical evidence of Dr. Sanjay Bodhade P.W. 5 and recorded the conviction of the appellant.

4. The learned advocate for the appellant strenuously argued before us that there is no evidence on record to suggest that the child was all right in the morning; that admittedly the child had swelling on the stomach and in the light of the evidence of Dr. Sanjay Bodhade P.W. 5 the possibility of the child having died normal death cannot be totally ruled out. It is further urged by the learned advocate for the appellant that there is no mention of any injury or discoloration of skin of the child in the inquest panchnama and as such the medical evidence to the effect that there were injuries on the body of the child as also cyanosis on the facial portion of the child cannot be accepted and at any rate this would cause doubt relating to the fact as to whether there were any injuries at all on the person of the child as a result of which the possibility of the child having died natural death on account of illness, infection or otherwise cannot be ruled out. It is also argued that there has been delay of four hours in lodging the FIR. Lastly it is urged that there was no intention on the part of the appellant to kill the child and the offence may at the best fall under Section 304 of Indian Penal Code.

5. On the other hand learned Assistant Public Prosecutor urged before us that the trial Court in an elaborate judgment has taken into consideration all the relevant aspects of the matter and has assessed the evidence on record in the light of the principles of law applicable to assessment of evidence and that there is absolutely no reason whatsoever to interfere with the conviction and sentence imposed by the trial Court.

6. The evidence in this case is circumstantial in nature as also extra-judicial confession made by the appellant. The appellant was married with Sunil Chavan-P.W. 1 on 14-5-1995 and she delivered a child on 3-10-1995 that is to say within a period of about five months of the marriage. There is nothing on record to suggest that the appellant had any access to Sunil Chavan prior to their marriage. The medical evidence on record is that the child was fully developed, weighing three kgs. and 18" in length. The conduct of the appellant is very much relevant in this case and the said conduct has been rightly taken into consideration by the trial Court. After her marriage, the appellant revealed after about eight days that she got menses. The story of menses after eight days of the marriage militates against the delivery of a fully developed child within about five months of the marriage. Thus, it appears that right from the beginning the appellant was trying to mislead her husband Sunil Chavan-P.W. 1 and other members of the family about the conception which had occurred prior to the marriage. According to the trial Court illegitimacy of the child on account of birth of the child within about five months of the marriage raised questions which furnished motive for the appellant to do away with the child.

7. On the date of the incident the husband of the appellant as also his parents had left the house in the morning at about 7.00 a.m. and returned back at 9.00 a.m. for breakfast. During this intervening period the appellant was alone in the house with the child and the child was found dead when the husband of the appellant and his parents returned back. Even at this stage the appellant tried to mislead her husband and told him that the child had drunk milk and was sleeping. She also told her husband that the child got. swelling on the stomach in the night as a result of which her husband removed towel from the body of the child and found that the child was dead. Sunil Chavan-P.W. 1 does admit that there was swelling on the stomach of the child and the child got temperature and there was respiratory problem. When he questioned further, the appellant told him that as the child was not her she had pressed the nose and mouth of the child and killed him. Gangabai-P.W. 2 has also stated that when Radhabai-P.W. 3 made inquiries with the appellant the appellant told her that she killed the child because the child was not of the complainant viz. her husband and that she had pressed the nose and throat of the child. Radhabai-P.W. 3 confirms that she made inquiries with the appellant and upon which the appellant told her that she killed the child because the child was not that of the complainant.

8. The learned advocate for the appellant further urged before us that the evidence in this case is of interested witnesses only and should not be believed. There is no rule of law that the testimony of interested witnesses cannot be relied upon. The only caution which the Courts are required to exercise in cases of such witnesses is cautious scrutiny. After cautious scrutiny of the evidence of Sunil Chavan-P.W. 1, Gangabai-P.W. 2 and Radhabai-P.W. 3 we have absolutely no reason to discard their testimony which could not at all be shaken during their cross-examination.

9. The medical evidence of Dr. Sanjay Bodhade categorically mentions that the cause of death was cardio respiratory failure due to asphyxia due to smothering. He found that the skin below trachea showed hemorrhagic spot. He was cross-examined at length and various possibilities were suggested as to the cause of death of the deceased but no dent could be made into his deposition that the death was due to smothering. Learned advocate for the appellant had urged before us that in the inquest panchnama neither any cyanosis nor any injury is shown and as such the medical evidence on this aspect cannot be relied upon. In our opinion, the evidence of medical officer who is an expert in the field of observing and opining on the injuries cannot be rejected merely because in the inquest panchnama there is no reference to cyanosis or any other injury on the child. The panchas after all are laymen and have no expertise to detect injuries which cannot escape eye of an expert witness. Besides this, it is pertinent to note that doctor Sanjay Bodhade was not at all cross-examined on the theory that there were no injuries on the body of the child. Dr. Sanjay Bodhade had categorically stated that he had seen cyanosis on the nose, ears and both lips, bluish, blackish, discoloration over maxilla, chin and both upper arms. It is pertinent to note that Dr. Sanjay Bodhade also found that the skin below trachea showed hemorrhagic spot. The medical evidence thus corroborates the extra-judicial confession made by the appellant to her husband Sunil Chavan-P.W. 1 and before Radhabai-P.W. 3.

10. We do not find any merit in the submission of the learned advocate for the appellant that in the facts and circumstances the intention to kill cannot be attributed to the appellant. The evidence on record is to the effect that the appellant had done away with the child by smothering the child and Dr. Sanjay Bodhade had found that skin below trachea showed hemorrhagic spot. The possibility of death by any other means including illness is ruled out in the circumstances. The FIR was lodged within four hours of the incident and in the facts and circumstances it cannot be said that there has been delay in lodging the FIR.

11. The trial Court has assessed and examined the evidence in correct perspective and keeping in view the principles of law applicable for appreciation of evidence on record. Hence we do not find any error having been committed by the trial Court in holding the appellant guilty of the offence under Section 302 of Indian Penal Code.

12. For the aforesaid reasons we do not find any merit in this appeal and the same is, therefore, dismissed. Copy of this judgment be sent to the appellant-accused who is undergoing the sentence.