Bombay High Court
Bhagwan S/O Digambar Patil vs The State Of Maharashtra And Anr on 14 November, 2017
Bench: T.V. Nalawade
1 APEAL414.2002.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 414 OF 2002
Bhagwan S/o Digambar Patil,
Age : 25 years, Occu. Nil,
R/o. Chabhra, Tq. Hadgaon,
Dist. Nanded. ...Appellant
VERSUS
1. The State of Maharashtra,
Through Police Station,
Manatha, Tq. Hadgaon,
Dist. Nanded.
2. Mahananda D/o Laxman Deshmane,
Age : 20 years, Occu. Household & Labour,
R/o. Chabhra, Tq. Hadgaon,
Dist. Nanded. ...Respondents
..........
Mr S. B. Bhapkar, Advocate for the appellant
Mr S. D. Ghayal, APP for respondent No. 1
Respondent No. 2 is deleted as per Court's leave dated 29.8.2007
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
DATE : 14.11.2017.
ORAL JUDGMENT (PER A. M. DHAVALE, J.) :
1. This is an appeal by the accused from Sessions Case No.
25/98, who was convicted by the Special Judge (SC & ST Act) and
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Addl. Sessions Judge, Nanded for offence u/s 302 of the IPC and
sentenced to suffer imprisonment for life and to pay fine of
Rs.10,000/-, in default, to suffer RI for two months. He was also
convicted u/s 201 & 506 r/w 34 of IPC but no separate sentence has
been passed therefor. He was acquitted of offences u/s 376, 417 of IPC
and u/s 3(1)(xii) of SC & ST (Prevention of Atrocities) Act. Aggrieved
by the said Judgment dt.25.7.2002, he has preferred this appeal.
2. The facts relevant for deciding this appeal may be stated as
under :
On 20.11.97, PW12 Mahananda lodged FIR Exh. 40 at
Police Station, Manatha, Tq. Bhokar, Dist. Nanded. As per her FIR, she
belongs to Chambhar community and was aged 20 years & residing at
Chabhra. About four years earlier, she developed love affair and sex
relations with the accused Bhagwan. According to her, the accused had
promised her that he would marry to her and would provide her a
separate house in his field and by making such assurance, he used to
enjoy sex with her. About one year before the date of FIR, she
conceived from the accused and one month thereafter she disclosed this
fact to the accused. The accused promised to manage and maintain
her. As the pregnancy had developed, apprehending defamation in the
society, her sister's husband Changuji Hatagale contracted her marriage
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with one Maruti Gaikwad about 10 months before the date of FIR. She
cohabited with him at Umari (Malegaon), Dist. Parbhani. The accused
came to her at Umari 2-3 times and called upon her to come to
Chabhra and assured her to maintain her. He was asking her to
undergo abortion stating that they were not in need of child at that
time. When she was in third month of pregnancy, her mother-in-law
suspected and told her husband that she was pregnant before marriage
and asked him to send her back to her maternal place. That time, the
accused sent her an inland letter stating therein that her husband was
of unsound mind and she should leave him and he would maintain her
& child throughout her life. She tore that letter and came to Chabhra.
Her sex relations with the accused were restored. The accused was
asking her to undergo abortion but she refused. About four months
before the date of FIR, she delivered a male child. Her delivery was
performed by Bhagirathabai and Gitabai. About eight days thereafter,
the accused visited their house at 12:00 midnight, he took the child
with him and asked her to prepare tea for him. When she came back
with cup of tea, he told her that he had throttled her son to death and
they were not in need of any child, he would maintain her and she
should not disclose this fact to anybody. If she would disclose this fact
to police, he would not maintain her and he would kill her. Then he
told her that, the dead body of the child would be buried in the same
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house and by means of sickle he dug a ditch and buried the dead body.
PW12 was weeping. On the next day, he took her to Nanded and
thereafter to Hingoli and kept her in rented house of Sunderabai. He
introduced her to the landlady as his wife. They cohabited together for
two months. The Accused used to visit her house once in 4-8 days and
was making the promises to maintain her. About 1½ months before the
date of FIR, he did not come to PW12. When she went to his house at
Chabhra to make inquiry, he told her that she should not come to him
as he wanted to marry to somebody else. If she would go there, he
would kill her.
3. On the basis of the FIR, crime was registered at C.R. No.
85/97 u/s 302, 376, 420, 201, 506 IPC and Section 3(i)(x) of SC & ST
(Prevention of Atrocities) Act and was investigated into. PW13 PI
Pardeshi visited he spot and some skulls, bones and one cloth was
exhumed by digging a pit in the house of the informant in the presence
of Tahsildar. The accused and the informant were sent for medical
examination. The medical evidence showed that, PW12 was habituated
to sex, was pregnant and had undergone delivery. No forensic report
could be obtained to show that the bones found were of a child of the
accused. After recording the statement of material witnesses, the
charge-sheet was submitted in the court.
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4. In due course, the case was committed to the Court of
sessions. The charge was framed by Addl. Sessions Judge, Nanded at
Exh. 7. The accused pleaded not guilty. The prosecution examined 14
witnesses. The defence of the accused is of total denial.
5. The ld. Addl. Sessions Judge, Nanded held the accused
guilty only for offences u/s 302, 201 and 506 and acquitted of the
other charges.
6. Shri. S. B. Bhapkar, learned counsel for the appellant
submitted that, there is only evidence of PW12 against the accused.
PW3 Gitabai and PW6 Kausalyabai have denied that they have
performed the delivery of PW12 Mahananda. There is no DNA report
to connect the accused with the crime. There is no evidence to show
that PW12 Mahananda had given a birth to an alive child. The child
was not seen by anybody. There is no material to show that it was a
case of homicide. The medical evidence does not show whether the
child was male or female. The FIR is lodged after a period of four
months. The evidence of PW12 Mahanda is totally unreliable and
untrustworthy. She had married to one Maruti before the incident and
again married after the incident. The dead body was found buried in
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her house and not in the house of the accused. Therefore, the
conviction of the accused u/s 302, 201, 506 of the IPC is not
sustainable. The appeal be allowed and conviction be set aside.
7. Per contra, ld. APP Shri. Ghayal argued that, PW12 has no
reason to depose falsely against the accused. The dead body was
recovered from the house. There is evidence to show that Mahananda
had undergone delivery. Hence, the evidence should be believed and
the appeal should be dismissed.
8. The points for our consideration with findings thereon are
as follows :
Sr. Points Findings
No.
1 Whether the child met with homicidal Not proved.
death?
2 Whether the accused has committed Not proved.
murder of accused?
3 Whether the accused has caused Not proved.
disappearance of the evidence of murder?
4 Whether the accused has criminally Not proved.
intimidated PW12?
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5 What order? The appeal is
allowed. The
accused is acquitted
of the charges.
REASONS
9. The prosecution has relied on following witnesses:
(i) PW12 - Mahananda, the informant (FIR Exh. 40).
(ii) PW3 - Gitabai and PW6 - Kausalyabai allegedly performed
the delivery of Mahananda, both turned hostile.
(iii) PW1 - Bhaurao, panch to the panchanama exhumation,
turned hostile.
(iv) PW2 - Sk. Salim, panch to the arrest panchanama, turned
hostile.
(v) PW4 - Piraji, cousin of Mahananda, turned hostile.
(vi) PW6 - Hiraman, panch to the exhumation and taking out
the dead body bones, turned hostile.
(vii) PW7 - Sunderabai, the landlady of PW12, turned hostile.
(viii) PW8 - Shobhabai, sister of Mahananda. She deposed that,
Mahanada conceived from accused and therefore she
arranged her marriage with Maruti Gaikwad but, when he
came to know about the pregnancy, he drove her out.
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Mahananda had given a birth to child after nine months.
The said child was killed by Bhagwan by throttling. She
has no personal knowledge of most of the incidents against
the accused.
(ix) PW9 - Dr. Venkat Dhage, in his presence, the dead body
was taken out by digging a ditch from one house. Pieces
of clothes and 23 bones were collected. He conducted
post-mortem. He referred the bones to Anotomy
Department, Ambajogai. He has received letter Exh. 29
and his PM report Exh. 30.
(x) PW10 - Dr. Bhikulal Baheti was MS in Anatomy. He has
received the bones sent by police. Those were bones of
human being and age of the bones of a child just begotten.
He could not form his opinion as regards sex or about the
death of the child. His certificate is at Exh. 33.
(xi) PW11 - Balaji is the brother of Mahananda. He has also
turned hostile and not supported the prosecution.
(xii) PW14 - Dr. Supriya has examined PW12 Mahananda on
23.11.97 at Government Hospital at Nanded. After clinical
examination of breast and private parts, she gave opinion
that the patient was pregnant and had undergone delivery
and was habituated to sexual intercourse. Her report is at
Exh. 69.
9 APEAL414.2002.odt
10. Thus, the evidence discussed herein above shows that most
of the prosecution witnesses have not supported PW12 Mahananda.
The landlady as well as brother of the Mahanada have also not
supported her. The evidence of Mahananda will have to be appreciated
in the light of the above facts. She deposed that, her parents were dead
and she was residing at Chabhra. Her sisters were married. She was
residing with her brother and used to do labour work on daily wages.
She was knowing accused Bhagwan from last 11 years and the incident
took place 5-6 years before her evidence. She developed intimacy and
sex relations with Bhagwan and got pregnant. As per her FIR, she
deposed that, she had conceived from the accused and then her
marriage was arranged by her sister's husband in order to avoid
defamation but, after marriage her mother-in-law realized that she was
pregnant and then she was sent back. She again resided with
Bhagwan. The accused was in contact with her even after her marriage.
She again developed sex relations with him and she stated that, she
had delivered a child at her house. PW3 & PW6 had helped her in her
delivery. On the next Sunday, the accused visited her house and killed
her child by throttling. He had intimidated her so that she should not
disclose this fact to anybody and the child was buried in her house by
the accused. The accused was paying rent of the said room for 1 or 2
months and thereafter he stopped going to PW12.
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11. She lodged FIR after a period of four months. She
admitted that there was no divorce between she and Maruti and
subsequently she performed marriage with one Nagnath Pawar, Police
Inspector and had begotten a son from him.
12. All material witnesses have turned hostile. PW3 & PW6
turned hostile and, therefore, delivery of alive child by Mahananda has
not been proved. There is absolutely no evidence establishing that she
had given birth to an alive child. PW7 Sunderabai, the landlady has
also turned hostile. Therefore, it is not proved that the said house was
rented by her to the accused. The skeleton of the child was found in
the house occupied by PW12 Mahananda. She has lodged FIR after a
period of four months.
13. The facts indicate that if the accused had committed any
crime, she would have been co-accused at least with regard to causing
disappearance of the evidence. The police attempted to collect DNA
report but could not collect the same to connect the accused with the
crime. We find that, PW12 Mahananda was having illicit relations with
the accused even after her marriage. She claims to have continued sex
relations with the accused. She did not report about the birth of the
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child to anybody. She did not report anybody about the alleged murder
of child by the accused. The FIR is also lodged after a period of four
months. PW12 Mahananda had every reason to falsely implicate the
accused. In the circumstances, when there is no reliable evidence
about the birth of alive child and its homicide by the accused, the
evidence of PW12 cannot relied upon. We find that the ld. Addl.
Sessions Judge has not taken into consideration the material lacunae in
the evidence of the prosecution case and large amount of witnesses
turning hostile and the character of PW12 Mahananda before placing
reliance upon her evidence. The evidence that, Mahananda had a
delivery is not enough. Not a single witness has seen the child alive
except Mahananda. We find it unsafe to rely upon her sole testimony
which is not corroborated by any evidence. Hence the conviction of the
appellant is unsustainable. Hence, we answer the points in the
negative. Hence the order.
ORDER
(i) The Criminal Appeal is allowed.
(ii) The judgment and order dated 25.7.2002 passed by Special
Judge (S.C. and S.T. Act) and Additional Sessions Judge,
Nanded in Special Case no.25/1998 convicting the
appellant for offences punishable under Section 302, 201
and 506 of Indian Penal Code is hereby set aside.
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(iii) The appellant stands acquitted. Fine amount, if any
deposited by the appellant be returned to him.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
