Manisha @ Jangalabai Ganesh ... vs The State Of Maharashtra
2022 Latest Caselaw 10343 Bom

                                                                Appeal.573.15.doc

ATU
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 573 OF 2015

      Manisha @ Janglabai Ganesh Chavan
      Age:19 years, Occ: Nil,
      R/o. Shivtanda, Tal. Chalisgaon,
      Dist. Chalisgaon.                                    Appellant
      (Presently at Nashik Road Central Jail)           .. (Orig. Accused)

            Versus

      The State of Maharashtra.
      [Through Yeola Police Station, Nashik]           .. Respondent
                                                           (Orig. Complainant)

      Mr. Dushyant A. Purekar, Appointed Advocate for Appellant.
      Mr. H. J. Dedhia, APP for Respondent - State.

                            CORAM                : A.S. GADKARI &
                                                   MILIND N. JADHAV, JJ.

                            RESERVED ON   : 04th October, 2022.
                            PRONOUNCED ON : 07th October, 2022.

      JUDGMENT (PER: MILIND N. JADHAV, J.)

. This Appeal challenges the validity and legality of Judgment

and Order dated 18.04.2011 passed by learned Additional Sessions

Judge-1, Niphad, in Sessions case no. 27 of 2010 convicting Appellant

under Section 235(2) of Criminal Procedure Code, 1973 (for short

"Cr.P.C.") for offence punishable under Section 302 of Indian Penal

Code, 1860 (for short "IPC") and sentencing her to suffer

imprisonment for life and to pay fine of Rs.1000/- in default, to suffer

further rigorous imprisonment for two months.

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2. Appellant is convicted for the offence of murder of her own

infant daughter viz. Pinky (2 months) by throwing her in the well and

causing her death due to drowning.

3. Facts which emerge for consideration from the record of the

case are as under:-

3.1. On 14.03.2010 at around 5:30 pm. Mr. Suresh Nandaram

Wagh, Police Patil of village Mukhed, on telephone informed Yeola

Taluka Police Station, about sighting a dead body of a baby in the well

situated at village Satyagaon ADR No.15 of 2010 under Section 174

Cr.P.C., was registered. PW-1 ASI Mr. Satish P. Nikam went to the spot

of incident, ascertained the above fact and conducted the Spot

panchanama (Exh.13) and Inquest panchanama (Exh.12) of the dead

body of the baby in the presence of pancha witnesses. The dead body

was then sent for autopsy along with Police Report (Exh.16) to Rural

hospital, Yeola. PW-2 Dr. Swati Dhule and one Dr. S.R. Kotak

conducted the autopsy and prepared PM notes vide (Exh.23).

Advanced certificate for cause of death (Exh.19) was issued, cause of

death being mentioned as asphyxia (respiratory failure) due to

drowning. PW-6 Priya Thorat, Investigating Officer (for short "I.O.")

initially registered the offence against unknown person. Thereafter,

she issued direction to the Police Patil and the Kotwal for beating of

drums in the village to ascertain the identity of the baby. Inquiry was

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conducted and Statements were recorded during investigation,

statements of Devidas Jadhav and Lakubai Devidas Jadhav, villagers

were recorded and they identified the Appellant as mother of the said

infant baby. On the basis of statements of these two villagers recorded

under Section 161 Cr.P.C., the dead body was duly identified and

Appellant was arrested on 18.03.2010.

3.2. Statements were recorded and reports were received, and it

was revealed that Appellant had given birth to the infant baby on

14.01.2010 at Primary Health Center, Mukhed. Birth certificate in the

prescribed form (Exh.27) and entry in the birth register at Sr. No.10,

14.01.2010 proved that name of father of infant is Ganesh Mahadu

Chavan and name of mother is Jugnabai Ganesh Chavan (Appellant).

3.3. It was also revealed during investigation that, 8 months

prior to the incident husband of Appellant fled away with the advance

amount which he received towards the work of sugarcane cutting; at

that time Appellant was four months pregnant. Hence, she came to

reside with her parents in village Satyagaon. She delivered a female

child on 14.01.2010. She along with her parents worked as a

sugarcane cutting laborer on the farm.

3.4. After completing investigation IO submitted charge sheet

against Appellant in the court of Judicial Magistrate First Class

(JMFC), Yeola for the offence punishable under Section 302 IPC. As

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the offence under Section 302 IPC is exclusively triable by the Court of

Sessions, learned JMFC committed the case to the Sessions Court, for

trial. On 26 08.2010, charge (Exh.7) was framed against Appellant. Its

contents were read over and explained to her in vernacular, to which

she pleaded not guilty and claimed to be tried.

4. Prosecution case is based on circumstantial evidence and

medical evidence. Deceased infant was two months old and a sucking

child on the date of incident.

5. To bring home the guilt of the Appellant Prosecution

examined 6 witnesses. PW-1 ASI Satish Nikam is the complainant. He

set the criminal law into motion and in his evidence proved four

documents viz. Police Report, Inquest panchanama (Exh.16), Police

Complaint dated 15.03.2010 (Exh.17), FIR in C.R. No. 39 of 2010

(Exh.18) and Advance Cause of Death Certificate of deceased Infant

(Exh.19). He also recorded Spot panchanama, Inquest panchanama

and police report for conducting postmortem.

6. PW-2 attached to Rural Hospital Yeola conducted

postmortem on the dead body of deceased infant baby and proved PM

Notes (Exh.23) and Medical examination certificate (Exh.24) in her

evidence. PW-3 Mr. Somnath Waditke, Gram Sevak, of Gram

Panchayat Mukhed, was examined by prosecution to prove the birth

certificate of the deceased infant dated 14.01.2010 (Exh.27). PW-4

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was examined as he is the owner of the field in which the well is

situated. He was the first person to have spotted the dead body of the

infant floating in the well at about 05:30 p.m. on 14.03.2010. He

immediately informed the said fact to the Police Patil of village

Mukhed, who then telephonically informed Yeola Taluka, Police

Station.

7. PW-5 Dr. Santosh Anganwar is the Medical Officer, attached

to Primary Health Center, Mukhed. In his deposition, PW-5 has proved

the entry in the Maternity Register at Sr. No. 5 of 72. whereby

Appellant delivered a female child on 14.01.2010.

8. PW- 6 has deposed and testified about the documents which

were drawn and received during the course of investigation namely,

statement dated 19.04.2010 of Appellant (Exh.32), Spot panchanama

(Exh.33), letter seeking information about date of delivery by

Appellant and other relevant papers and reply received from Medical

Officer of Primary Health Center, Mukhed, furnishing details of

delivery (Exh.35).

9. We have heard Mr. Purekar, learned appointed Advocate

appearing for Appellant and Mr. Dedhia, learned APP appearing on

behalf of State and with their able assistance perused the entire

record.

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10. The question before the Trial Court was, whether death of

the said infant (Pinky) was homicidal. It is noted that the actual

incident occurred on 14.03.2010. It has come in evidence that

Appellant worked as a labourer for sugarcane cutting in a field along

with her parents. That on the date of incident i.e. 14.03.2010,

Appellant as usual left for her work in the morning at around 06:30

a.m. The farm where Appellant worked was at a distance from her

parental house. The spot of incident i.e. the well (field of PW-4) was

on the way. It is the prosecution case that, on 14.03.20210 at about

16:00 hours or prior thereto, Appellant committed murder of her own

infant daughter Pinky (2 months) by throwing her alive in the well,

situated in the field of PW-4. According to prosecution, Appellant

committed the act out of anger as she was battling with the fact of

bringing up her daughter alone, since her husband had deserted them

and fled away. As noted above in the Spot pancahanama (Exh.33).It is

revealed that the well had a parapet wall of 3 feet height. It has been

proven in the deposition of PW-5 that, Appellant had given birth to

Pinky on 14.01.2010. Medical evidence in this respect supports the

case of prosecution which has mainly relied on the testimony of PW-2

and the PM notes (Exh.23). According to PW-2, on 15.03.2010, she

along with one Dr. S.R. Kotak conducted autopsy on the dead body of

deceased infant (Pinki) from 10.00 a.m. to 11.00 a.m. and while

conducting the autopsy, they noticed that eyes of the deceased were

Appeal.573.15.doc

closed, her mouth was semi-opened and tongue was inside the mouth.

The following observations are made in the PM notes:-

i. abrasion over left foot, size 3 x 2 cm, both lungs were congested and there was frothing and no blood was found in any of the four chambers.

ii. She has further testified that after opening the abdomen, they found fluid in the stomach of the deceased and both intestines contained fluid and gases. Liver, pancreas, suprarenals, spleen and kidneys were found congested and frothing.

iii. bladder and organs of generation were found empty.

10.1. PW-2 opined that the cause of death was asphyxia due to

drowning. PM notes are prepared by both the Medical Officers viz.

PW-2 and Dr. Kotak vide (Exh.23). In the view of PW-2, injuries

mentioned in column No. 17 are possible if an infant is thrown in the

well. It is clear that the death of the said baby is homicidal.

11. Before we advert to any conclusion it would be apposite to

reiterate the settled position of law while considering any case based

on circumstantial evidence, it has been held that onus is on the

prosecution to prove that the chain of circumstances is complete and

the infirmity of lacunae in prosecution cannot be cured by false

defence or plea. The conditions precedent to be fully established are

laid down by the Apex court in the case of Sharad Birdhichand Sarda v.

State of Maharashtra1. They are:

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances 1 (1984) Cri L J 1738

Appeal.573.15.doc

concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

12. The argument of the learned Advocate for the Appellant

that some other person may be the author of the crime cannot be

accepted, from the evidence on record as the same is not discernible. If

it would have been the case that the crime is committed by some other

person than the Appellant, then it is difficult to fathom that Appellant

did not lodge a missing report for her own child after 14.03.2010, for

the next three days, until recording of statements of two villagers, it

was not revealed that Appellant was the mother of the deceased

infant. As observed, deceased infant was a sucking child. Hence it is

improbable to believe or theorize that a two month old child would

meet an accidental death by falling into the well.

13. There are no circumstances what so ever brought on record

to disbelieve the medical evidence which fully corroborates the

circumstantial evidence in proving that death of Pinky (deceased

infant) was homicidal. In order to link the chain of circumstances and

make it complete, prosecution has placed reliance on four documents

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namely, Exh. 24, Exh.26, Exh.27 and Exh.35 which are proved through

the deposition of PW-2, PW-3, PW-5 and PW-6. Exh.24 is the

certificate issued by PW-2 in respect of medical examination of the

Appellant. It is crystal clear that at the time of examination of the

Appellant, her general condition was fair and suggestive of post-natal

care periodand that there was white discharge and her uterus showed

involution phase. Exh.35 is the letter issued by Medical Officer,

Primary Health Centre, Mukhed informing PW-6, the Investigating

Officer and certifying that Appellant, was admitted in the said hospital

on 14-01-2010 for maternity/delivery and at about 1.25 p.m. she gave

birth to a female issue weighing 2500 gms and her delivery was

normal. Exh.27 is the birth certificate of Pinky issued by the Village

Development Officer of Gram Panchayat, Mukhed, Taluka Yeolam

District Nashik. On minute perusal of the said public document, it is

clear that the said infant was born on 14-01-2010 at Primary Health

Centre, Mukhed. Name of father of the infant is shown as Ganesh

Mahadu Chavan while her mother's name is shown as Mrs. Jugnabai

Ganesh Chavan i.e. Appellant. Exh.30 is the true extract of the delivery

register maintained by Primary Health Centre, Mukhed. It is duly

proved by PW-5. On perusal of the document, it is revealed that at

serial No. 5/72, there is an entry with respect to maternity details of

the Appellant. The name of the mother of the infant is shown as Mrs.

Janglabai Mahadu Chavan. Ganesh Mahadu Chavan is the husband of

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the Appellant. Entries therein further show that Appellant was

admitted in the said hospital on 14-01-2010 and her delivery was

performed from 1.25 p.m. to 1.40 p.m. during which she conceived a

female issue. Weight of the said child is mentioned as 2500 gms. and

that nurse Deshpande performed the said delivery. It is material to

note that accused is the real mother of the deceased infant. On the

date of her death, she was hardly two months old. It is not the case of

prosecution that she was taken away from the custody of the Appellant

or that she was missing for a considerable period of time. Genesis of

prosecution case is that it was PW-4 who set the wheels of

investigation into motion. It was he who found the dead body of the

infant floating in the water of the well owned by him. He informed the

Police Patil of village Mukhed, who in turn informed Yeola Taluka

Police Station. Accordingly, police arrived at the spot and drew spot

panchanama (Exh.13) and inquest panchanama (Exh.12). Thereupon,

the whereabouts of the child were located by the Investigating Agency.

It transpired that Appellant was the mother of the deceased infant.

Dead body of the infant was sent for autopsy in which it transpired

that the said infant died because of asphyxia due to drowning.

14. These circumstances when put together, it was for the

Appellant to show as to how the death of the said infant occurred

when it was a sucking child or as to how the said child landed in the

said well. This was certainly within the special knowledge of the

Appeal.573.15.doc

Appellant herself. However, she has not countenanced all these

circumstances pointing to her guilt. Even when she was called upon to

explain all the circumstances pointing towards her guilt in her

statement recorded under Section 313(1)(b) of the Cr.P.C., she denied

the prosecution case in toto. This conduct of Appellant clearly appears

to be unnatural of a biological mother.

15. In view of the above discussion and findings, we are of the

considered opinion that Appellant and no other person is the author of

crime and the prosecution has proved its case beyond all reasonable

doubts that Appellant has committed the murder of her own daughter

(Pinky) by throwing her alive in the well.

16. In view of the aforesaid discussion and observations, we do

not find any reason to interfere with the Judgment and Order of the

learned Trial Court.

17. Criminal Appeal No.573 of 2015 is dismissed.

18. Before parting with the Judgment, we would like to place on

record appreciation for the efforts put in by Mr. Dushyant A. Purekar,

learned Advocate appointed by the High Court Legal Services

Committee, Mumbai for espousing the cause of Appellant; he was

thoroughly prepared in the matter and rendered proper and able

assistance to the Court.

         [ MILIND N. JADHAV, J. ]                      [ A.S. GADKARI, J.]


              Digitally signed by
AJAY       AJAY TRAMBAK
TRAMBAK    UGALMUGALE
UGALMUGALE Date: 2022.10.07
              16:40:21 +0530