Bombay High Court
Sau. Lata Vilas Khilare vs Samadhan Shrawan Gavai And 3 Oths on 21 September, 2017
Bench: Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 203 OF 2011
Sau. Lata Vilas Khilare
Aged about 40 years, Occ: Household
R/o Bhim Nagar, Ward No.2
Buldana, District-Buldana. .... Appellant.
(Ori. Complainant)
-Versus-
1] Samadhan Shrawan Gavai
Aged about 30 years, Occ.: Labourer.
2] Sau. Shalini Devanand Lahane
Aged about 29 years, Occ.: Household.
3] Sau. Sangita Samadhan Gavai
Aged 25 years, Occ.: Household
R/o Sundarkhed
Tq. And Dist. Buldana.
4] State of Maharashtra through
Police Station Officer,
Station : Buldana (City)
Distt. Buldana. .... Respondents.
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Shri D. A. Saonwane, Advocate for Appellant.
Shri S.B.Bissa, Additional Public Prosecutor for Respondent No.4.
None for Respondent Nos. 1 to 3.
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Coram : Mrs. Swapna Joshi, J.
Dated : 21
st
September, 2017.
ORAL JUDGMENT
This appeal has been directed against the judgment and
order dated 6.1.2011 passed by the Principal Sessions Judge, Buldana
in Sessions Case No. 81/2010, whereby the learned trial acquitted the
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accused under Section 316 r/w 34 of the Indian Penal Code.
2] I have heard Shri D.A. Sonwane, the learned counsel for
the appellant and Shri Bissa, the learned Additional Public Prosecutor
for the respondent No.4-State. None appeared for the respondent
Nos. 1, 2 and 3.
3] The prosecution case, in nutshell, can be stated as under:
The complainant Smt. Lata Vilas Khilare (PW-3) was
residing with her husband Vilas Khilare (PW-4) at Buldana. The
parents of Smt. Lata (PW-3) were residing at village Sundarkhed,
District-Buldana. The accused are also the residents of village
Sundarkhed. It is the case of the prosecution that on the day of
incident dated 21.1.2006, Smt. Lata along with her husband and her
son visited her parents' place at Sundarkhed. While returning back
from Sundarkhed, at about 8.00 p.m., near the Saint Joseph School
suddenly the accused nos. 1 to 3 came in front of their vehicle, at that
time the vehicle was slowed down by the husband of Smt. Lata due to
speed breaker. Suddenly, the accused started assaulting the husband
of Smt. Lata by fist-blows. As a result of it, her husband lost control of
the vehicle and they both along with their son, aged about six years
old, fell down. When accused no.1 assaulted the husband of Smt. Lata
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by fist and kick blows, accused no.2 started assaulting Lata with fists
and kick blows on her abdomen, accused no.3 caught hold of her both
hands tightly, when the accused no.1 was assaulting her husband. The
accused no.1 also assaulted on the abdomen of Smt. Lata. At the
relevant time, the accused no.3 said not to leave them. Thereafter, all
the three accused assaulted her and her husband brutally with fist and
kick blows. It is the case of the prosecution that at the relevant time
Vatsalabai Laxmanrao Jadhao (PW-2) and Gajanan Laxmanrao
Jadhao (PW-1) were present at the place of incident and they rescued
them from the hands of accused persons.
4] It is the case of the prosecution that at the time of
incident, Smt. Lata (PW-3) was carrying pregnancy of about 2.½
months. As the accused persons assaulted on her abdomen, it started
bleeding, therefore, she along with her husband immediately
proceeded to Buldana Police Station to lodge her complaint. At that
time two accused were present in the police station.
5] At the relevant time, Head Constable B.No. 1683 was
attached to Buldana Police Station, recorded the N.C. Complaint
bearing no. 100/06 under Sections 504, 506, 323 of the Indian Penal
Code in the N.C. Complaint register. Thereafter, the said constable
took Lata to Government Hospital at Buldana for medical treatment.
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Lata was admitted in the said hospital. She was hospitalized there
from 21.1.2006 to 26.1.2006. Thereafter, Lata was shifted to the
Government Medical Hospital, Aurangabad. Lata was admitted in the
said hospital upto 29.1.2006. After Lata was discharged from the
hospital, she lodged her complaint (Exh.18) at Buldana Police Station
on 31.1.2006.
6] At this juncture, it may be mentioned that the accused
persons also lodged N.C. Complaint at about 8.35 p.m. against Lata
and her husband Vilas Khilare, bearing N.C. complaint No. 17/06. The
said N.C. complaint reveals that when the complainant Sangita was
present in her house, she was abused and threatened to kill over the
dispute of lodging report earlier.
7] The police from Buldana Police Station gave
understanding to the complainant Lata as well as the accused persons
herein at the relevant time.
8] PW-6 investigated the crime no. 266/2009. The accused
were arrested and the charge-sheet was filed against the accused in
the Court of learned J.M.F.C., Buldana. The case was committed to
the Court of Sessions. The charge was framed by the learned learned
Sessions Judge. On appreciation of the evidence and hearing of both
sides, the learned Sessions Judge acquitted the accused as aforesaid.
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9] The learned counsel for the appellant-complainant
vehemently argued that the learned trial Judge has not appreciated
the testimony of the victim and her husband as well as the doctor in
right perspective and has erroneously acquitted the accused. The
learned counsel for respondent nos. 1, 2 and 3 remained absent.
10] I have carefully gone through the record of the case. The
testimony of PW-3 shows that on 21.1.2006 she along with her
husband had gone to Sundarkhed on motorcycle with her husband
and child aged about six years. While returning from Sundarkhed at
7.45 p.m. or 8.00 p.m., when they were near Saint Joseph School,
there was a speed breaker. Therefore, her husband slowed down the
speed of motorcycle. At that time, suddenly accused no.1- Samadhan
assaulted her husband on his face by fist. Due to which, her husband
lost control and she along with her son fell down from the motorcycle.
Her son also received injury on his head. The accused no.1- Samadhan
pulled her husband and started assaulting him with fist and kick
blows. PW-3 tried to intervene, however, she received a kick blow
from accused no.1. Thereafter, accused no.3- Sangita assaulted her by
means of kicks on her stomach and fell her down. When PW-3 fell
down accused no.2- Shalini caught her both hands.
11] According to PW-3, accused had knowledge that she was
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carrying pregnancy, despite the same they assaulted her by means of
fist and kick and blows on her stomach. PW-3 was carrying pregnancy
of 2.½ months at the relevant time. She further stated that at that
time Vatsalabai and her son Gajanan was passing by on motorcycle,
they stopped there and rescued her from the hands of accused. They
informed Vatsalabai. Her parents came and they took her to Police
Station, Buldana. PW-3 stated that the accused were already present
and they were lodging report against her and her husband.
Thereafter, PW-3 lodged her complaint. PW-3 was in the hospital at
Buldana from 21.1.2006 to 26.1.2006. She was then referred to
government hospital at Aurangabad. She was hospitalized there till
29.1.2006. She was aborted in the said hospital. After her discharge,
PW-3 given a written complaint (Exh.18) on 30.1.2006 at Buldana
Police Station.
12] During the cross-examination, it was suggested that the
relationship of PW-3 and her husband was not cordial and her
husband used to suspect her fidelity. PW-3 denied the said suggestion.
It was further suggested that because of her family dispute she was in
mental stress and she was aborted due to the said stress. Few
improvements were suggested in the testimony of PW-3 regarding the
fact that her son received injury to his head Vatsalabai and Gajanan
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informed her parents about the accident. One more improvement is
pointed out that according to PW-3, she had stated before the police
that one month prior to the incident while she was proceeding, the
accused had pointed out fingers towards her, he questioned him and
called her father and husband and thereafter they forcibly took the
accused to the Police Station. He was prosecuted and, therefore, the
accused had assaulted them as he was enraged by him. The said
improvement shows that there was some dispute between PW-3 and
the accused persons.
13] The testimony of PW-4 who is the husband of the
prosecutrix shows that on 21.1.2006 at about 8.00 p.m. while
returning from Sundarkhed when they were near Saint Joseph School,
their vehicle had slowed down because of the speed breaker. At that
time, accused no.1 came in front of them and assaulted him and on
face by fist blow. PW-4 then fell own along with his wife, child and
vehicle. Accused nos. 2 and 3 pulled his wife and started assaulting
her with fist, kick and blows and accused no.1 started assaulting him.
Vatsalabai and her son, who were passing by separated them. He
further stated that accused no.1 also gave two kick blows on the
stomach of his wife. After sometime, his in-laws came to that place
and took them to Police Station.
8 Judg cr app 203-11.odt
14] According to PW-4, the accused were present in the
Police Station and they had lodged the complaint against him and his
wife. His wife was taken to Buldana Civil Hospital and thereafter
shifted to Aurangabad. His wife was aborted in the said hospital. PW-
4 categorically stated that the accused had assaulted them because of
earlier quarrel which had taken place one month prior to the incident,
at that time case was registered against accused no.1 under Section
151 of the Code of Criminal Procedure.
15] In the cross-examination, it was pointed out to PW-4 that
his relations with his wife were strained, as he had lodged report
against his wife in the Police Station, suspecting her character. PW-4
admitted the said fact. He also admitted that his wife had also lodged
report against him alleging ill-treatment. However, the said suggestion
is not in any manner related with the present case and the testimony
of PW-4 that the accused persons assaulted him as well as his wife on
21.1.2006 remains unshaken.
16] As far as the medical evidence is concerned, the Medical
Officer- PW-5 stated that on 21.1.2006 at about 9.30 p.m., he
examined Smt. Lata Khilare. PW-5 noticed blunt injury over abdomen
with three months A.N.C. (pregnant). She was admitted upto
26.1.2006. On 26.1.2006 she was referred to Government Medical
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College Hospital, Aurangabad for further treatment. PW-5 issued
medical certificate (Exh.23) of Lata. According to PW-5, Lata had
sustained grievous injury and the cause of injury was due to the hard
and blunt object, which was fresh in nature. She further opined that
the injury might have caused due to fist and kick-blows over
abdomen. It was suggested to PW-5 which he admitted that the injury
is possible by fall from a motorcycle or scooter and abortions are more
frequent in first three months of pregnancy.
17] On careful scrutiny of testimony of the prosecution
witnesses, it is noticed that no doubt, the Medical Officer has opined
that due to the fall from the motorcycle, the injury can be caused.
However, significantly, the Medical Officer has also stated that there
was blunt injury over abdomen with three months pregnancy.
18] It is also clear from the testimony of PW-3 and PW-5 that
immediately after the incident they proceeded to police station and
Lata reported the incident to Police Station. However, instead of
recording the complaint of Lata, NC complaint was recorded by the
concerned Police Constable B.No.1317. The non-cognizable complaint
bearing no. 100/06 recorded at 20.35 hours, clearly shows that Lata
gave her oral report that on 21.1.2006 at 7.00 p.m., the accused
persons assaulted accused Sangita and her husband Samadhan Gawai,
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abused her, threatened to kill her and assaulted her on her abdomen.
Lata was then referred to Medical Hospital, Buldana through Head
Constable B.No.1667. The entry indicates that Lata had immediately
reported the matter to police. Similarly the entry at 22.00 hours also
speaks about the same incident regarding the complaint lodged by
Lata against the accused persons.
19] Significantly, Lata had complained against accused no.1
Samadhan and accused no.3 Sangita and not against accused no.2
Shalini Lahane. From the said evidence, it is clear that although Lata
had immediately lodged the complaint against the accused nos. 1 and
3 at Buldana Police Station, the police did not record her complaint
and had not taken cognizance of her complaint and simply recorded
N.C. complaint against accused nos. 1 and 3. It is significant to note
that name of accused no.2 Shalini does not appear in the said N.C.
complaint and whereas the complaint (Exh.18) shows that the
accused no.2 Shalini Lahane was also involved in the alleged offence.
20] From the above said evidence, it is noticed that the
accused persons might have assaulted the victim (PW-4). However,
there is absolutely no evidence on record to show that accused
persons had knowledge that victim was carrying 2.½ months
pregnancy which is in normal course not apparently visible. Therefore,
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it cannot be said that the accused persons had intention to assault the
victim so that the death of her unborn child would be caused.
21] In this regard, Section 315 of IPC reads as under :-
"315.....Act done with intent to prevent child being born
alive or to cause it to die after birth.-- Whoever before the
birth of any child does any act with the intention of thereby
preventing that child from being born alive or causing it to
die after its birth, and does by such act prevent that child
from being born live, or causes it to die after its birth, shall,
if such act be not caused in good faith for the purpose of
saving the life of the mother, be punished with imprisonment
of either description for a term which may extend to ten
years, or with fine, or with both".
22] From the above said evidence, it appears that the victim
was assaulted by accused nos. 1 and 2. However, it is not clear from
her evidence as to how the accused persons had knowledge about her
pregnancy. PW-3 was carrying pregnancy of 2½ months which
apparently cannot be noted by a layman. I do not find that accused
persons had any intention that the child in womb should be killed and
with a knowledge that if at all they assault the victim, her unborn
child would die, the accused persons had assaulted the victim. There
is no such case made out by the victim in her complaint or in her
evidence. The victim no doubt stated that the accused persons had
knowledge that she was carrying pregnancy. However, the said
version is not elaborated as to how the accused persons had the said
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knowledge. Moreover the said fact is stated by the victim, after a
delay of 10 days when she lodged her complaint (Exhibit-18).
23] In case of Mahendra Pratap Singh Vs. State of Uttar Pradesh
reported in (2009) 11 SCC 334, the Hon'ble Apex Court has held as under;
"Appraisal of evidence and on considering the relevant
attending circumstances, it is found that two views are
possible, one for acquitting the accused and other for
convicting the accused, in such a situation, rule of prudence
should guide the High Court, not to disturb the order of
acquittal made by the trial Court, unless confusion of the
trial Court drawn on evidence on record are found to be
unreasonable and perverse or unsustainable, the High Court
should not interfere with the order of acquittal".
24] From the above said discussion, it is noticed that the
learned trial Judge has rightly acquitted the accused. There is no
illegality or perversity noticed in the judgment of the trial Court. In
view thereof, the appeal is hereby dismissed.
JUDGE
Ingole
