Vijaysingh Amarsingh Jadhav vs State Of Mah. Thr. Pso ;Buldana
2017 Latest Caselaw 7010 Bom

 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
 -------------------------------------------------------------------------------------------
          Ms. Radhika G. Bajaj, Advocate holding for Shri Anand
          Jaiswal, Senior Counsel for Appellant.
          Mrs. M.H. Deshmukh, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          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

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

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

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

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