Bombay High Court
Mukund S/O Digambar Dixit vs The State Of Maharashtra on 7 July, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 122 OF 2016
Mukund S/o Digambar Dixit,
Age : 52 years, Occu. : Labour,
R/o. Pande Galli, Tal. Selu,
District Parbhani. ... Appellant
Versus
The State of Maharashtra ... Respondent
...
Mr. R. A. Jaiswal, Advocate for Appellant.
Mrs. V. S. Choudhari, APP for Respondent - State
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 23rd JUNE, 2023
PRONOUNCED ON : 07th JULY, 2023
JUDGMENT (PER ABHAY S. WAGHWASE, J.) :
1. Appellant Mukund, is hereby taking exception to the
judgment and order of conviction passed by learned Extra Joint
Ad-hoc Additional Sessions Judge, Parbhani in Sessions Case
No.120 of 2014, by which he is held guilty for commission of
offence under section 302 of Indian Penal Code (IPC) and
sentenced to suffer life imprisonment and to pay fne.
FACTUAL MATRIX
2. Prosecution conducted trial against the appellant on
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the premise that, appellant/accused and informant Narayan are
brothers. Their father Digambar owned house property and landed
property. Informant Narayan occupied some part of the residential
house, whereas appellant/accused Mukund occupied the other
part. Appellant was a divorcee and thereby he resided alone.
Entire property owned by late Digambar stood in the name of his
wife. However, informant Narayan managed the entire property.
Appellant accused Mukund earned for his livelihood by working in
a hotel. As mother Laxmibai sold some portion of the land and did
not share the sale proceeds with accused appellant, he was upset
and therefore, relations between them were not cordial.
According to prosecution, on 23.07.2014, at around
8.00 to 9.00 p.m., appellant came drunk and demanded money for
consuming liquor and on refusal he threatened to kill son of
informant. According to prosecution, appellant/accused executed
the threat by snatching the baby from the waist of wife of
informant (PW-2) and holding the child by feet and he flung and
struck the baby forcefully on the floor which was built up by
cement concrete. The child suffered head injury and was shifted to
hospital of Dr. Jadhav hospital, who advised the child to be taken
to Parbhani and there on examination the child was declared dead.
Hence, PW-1 Narayan informant lodged report (Exh.15) against
his brother.
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3. After investigation appellant was made to face trial
before learned Extra Joint Ad-hoc Additional Sessions Judge. In
support of its case prosecution examined in all 12 witnesses.
Defence of appellant was denial and false implication. On
appreciating the oral and documentary evidence, learned trial
Judge held appellant guilty and sentenced him as stated above.
Feeling aggrieved by above judgment of conviction,
appellant has preferred instant appeal under section 374 of the
Code of Criminal Procedure.
SUBMISSIONS
4. The sum and substance of the argument advanced
before us by learned counsel for appellant is that, there is no clear
cogent evidence in support of the charges framed against accused
appellant. Admitting relations inter se between accused and
witnesses, it is his submission that since beginning there were
disputes in the family on account of share from the sale proceeds
received out of sale transaction of agricultural land. Therefore,
relations not being cordial, there was false implication to
deliberately exclude appellant accused from the interest in the
family property. Taking us through the evidence of brother,
mother and the answers given by these witnesses in cross-
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examination, learned counsel submitted that their testimonies are
not consistent or inspiring confdence.
5. He would next submits that evidence on record
suggested that accused was taking treatment for some mental
disorder. That, prosecution's own witnesses admit to that extent.
Consequently, it is submitted that a very different approach was
expected from learned trial Judge while appreciating the
prosecution evidence, but learned trial Judge failed to consider and
appreciate the same and had arrived to erroneous conclusion. He
also hastened to add that the possibility of child accidentally falling
and suffering injuries has not been denied by medico legal expert.
However, learned trial Judge overlooked such aspects of the
evidence also.
6. It is strenuously submitted that, there were material
omissions and contradictions in the evidence of prosecution, but
the same is not properly appreciated and considered by learned
trial Judge.
Concluding his argument, it is submitted that it is
apparent case of false implication and case not being proved
beyond reasonable doubt, he prays for allowing the appeal.
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7. In answer to above, learned APP would point out that
this is an unfortunate case where an innocent baby has been
smashed to death in presence of parents of the child. Narrating the
sequence of events as stated by informant, learned APP pointed out
that, merely on failure to meet the demand of money, accused had
snatched the child and forcibly struck the child on the ground
which was made of hard surface i.e. cement concrete. That, the
child sustained intracranial injuries and succumbed to the same.
Very family members of accused have eye witnessed the gruesome
act. Brother, mother have all deposed against accused. Their
testimonies have remained unshaken and therefore when all
required ingredients for attracting offence of murder were cogently
established, learned trial Judge rightly appreciated such evidence
and committed no error whatsoever in holding accused guilty.
Consequently, it is prayed that there being no merits in the appeal,
appeal be dismissed.
8. This being frst Appellate Court and last fact fnding
court, as required by law, we have minutely and carefully re-
examined and re-appreciated the available and documentary
evidence.
ORAL EVIDENCE ON BEHALF OF PROSECUTION
The role and status of prosecution witnesses are as
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under :-
PW-1 Narayan informant; PW-2 Swarna, wife of PW-1
Narayan and mother of child; PW-3 Laxmibai, mother of PW-1
Narayan and accused; PW-4 Shyam, a neighbour; PW-5 Laxman,
carrier of seizure; PW-6 Anil, photographer and also a panch to
panchanama (Exh.30); PW-7 Shaikh Bari, panch to inquest; PW-8
Dr. Muddassir, autopsy doctor; PW-9 Baburao frst I.O., PW-10
Bhagwan, panch to seizure of clothes; PW-11 Dr. Madhav, frst
doctor and private practitioner who examined child; PW-12 Kishor,
Investigating Offcer.
9. On carefully re-appreciating the available evidence on
record, it seems to be a case of 'Paternal flicide' i.e. killing of a
child by paternal uncle. Accusation of prosecution is that, appellant
demanded money for drinking on the night of 23.07.2014. When
demand was refused, it is alleged that appellant accused snatched
the child of one and half year old from his mother (PW-2) and
forcefully struck the child on a cement floor causing internal head
injury, resulting into death of the child. Thus, at the threshold it is
to be seen whether death is on account of inflicting or causing head
injury and thereby committing homicidal death. Therefore, it is
imperative for us to visit and discuss autopsy doctor's evidence
which assumes signifcance to decide the nature of death.
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PW-8 Dr. Muddassir is the doctor at Parbhani Civil
Hospital, who had occasion to conduct post mortem on the dead
body of child Shivam. Autopsy doctor gave evidence that, on
24.07.2014 body was referred to him along with inquest.
Regarding external features noticed by him before he stated that
there were blood stains on the T-shirt of the boy. Body was cold
and thin. Rigor Mortis was present and blood was oozing from
nostrils and mouth. According to him, there were two injuries, viz
(i) a contusion over frontal region, right side measuring 5 cms x 3
cms x 2 cms with underline fracture of right frontal bone having
linear fracture of the size of 4 cms; and (ii) contusion on left
temporal region measuring 7 cms x 3 cms x 2 cms with underline
fracture of left temporal bone of size 2 cms. Those injuries were
antemortem. In paragraph 4 he stated that, it was his opinion that,
cause of death was "terminal cardio pulmonary arrest due to
intracranial bleeding due to head injury". He identifed P.M. notice
(Exh.38) authored by him.
In cross-examination doctor has answered that he did
not carry previous medial treatment papers handed over by
Constable Shaikh Bari nor he discussed with doctor at
Siddhivinayak hospital prior to post mortem. He admitted that, he
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did not notice any injuries to legs, stomach or back of the child. He
answered that in case of thrashing the child on stone/hard object
by holding legs, blood may or may not spread around the spot of
contact point. He admitted that injuries on the child are possible
due to fall on a hard and rough surface.
10. On analyzing the above medico legal expert evidence, it
is seen that death is attributed to cardio pulmonary arrest due to
intracranial bleeding due to head injury. Taking into account the
nature of cross, it is seen that case is tried to be made out that the
child must have suffered injuries on account of fall. However,
there is no further detailed cross or suggestion as to from what
height and from which place if the child falls, such injuries are
possible. Taking into consideration the tender age of the deceased,
and also taking into account the impact that has been caused to the
internal parts of head, it is defnitely not a case of injuries by mere
due to fall. Admittedly, during trial prosecution has not solicited
concrete opinion about death to be only and only homicidal and
even doctor has admitted in cross-examination that injuries are
also possible on account of fall also. However, death is defnitely
unnatural and there is no dispute to that extent. Therefore, now
we are required to look into the other available evidence for
accepting the case of prosecution as homicidal death.
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11. As stated above, learned APP for State has strenuously
submitted that, there is direct evidence in this case, i.e. in the form
of testimony of father, mother, grandmother of deceased child and
a neighbour, i.e. PW-1 Narayan, PW-2 Swarna, PW-3 Laxmibai and
PW-4 Shyam. Therefore, we propose and proceed to scan their
evidence carefully.
12. PW-1 Narayan father informant stated that, his elder
brother snatched his son from the waist of his wife and thrashed
him causing injury to the head. Son was taken immediately to the
Dr. Jadhav hospital at Selu and thereafter taken to Parbhani at
Siddhivinayak hospital where he was declared dead.
In cross-examination, the informant has admitted that
he personally did not see the incident. Thereafter, he is questioned
on the family affairs. Witness has admitted that at the time of sale
transaction of agricultural land by their mother accused was
mentally retarded. He answered that his wife did not suffer any
injury when his brother snatched the child from her. He answered
that he had received information about the incident while he was
on Selu- Moregaon road.
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13. PW-2 Swarna, mother of the child and wife of PW-1
gave evidence that she had two children by named Sakshi and
Shivam. That, her mother-in-law, two brothers of her husband, her
two children residing in the house. According to her, incident took
place one year back. Brother-in-law Mukund had demanded money
for drinks. Her husband was out of station. According to her, for
the reason that money was not given to the accused, he gave threat
that he would kill Shivam. She further stated that, accused held
legs of her son Shivam and thrashed him on a cement-concrete
slab. Then, he gave fst blow to his mother-in-law and again
thrashed the child on washing stone and thereafter in the house.
When shouts were raised and when Vasanta and Shyam rushed,
accused threw Shivam out of the door. Shyam Shere caught the
child in the mid-air and child was taken to the hospital. She claims
to have informed everything to her husband on phone and took the
child to hospital. According to her, her child died during the
examination itself. According to her, brother-in-law had committed
murder of her child Shivam.
14. Above witness is cross examined at length. We propose
to deal with only material part as initial cross is on the point of
family holdings. Witness has admitted that, there was effect on
mental condition of accused Mukund, but she denied that he was
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undergoing treatment at that time. She is questioned about
divorce of accused and his wife. Omissions are brought about
Mukund demanding money for drinks, raising shouts. There is
cross about distance between her house and police station, whether
she and her husband approached Selu police station. She answered
that when accused was snatching her child, she attempted to resist
it, but denied that she suffered any injuries. She answered that,
there was no blood at the spot. She admitted that, accused did not
demand money directly from her. Rest all suggestions are denied
by her.
15. PW-3 Laxmibai, mother of informant and appellant
accused. The sum and substance of her substantive evidence is
that, when they were all standing in the square of the house,
accused came and demanded money from her. She informed that
she did not have money. According to her, thereafter accused
snatched Shivam from the waist of Swarna. He caught hold of his
legs and thrashed him on a cement concrete slab in the courtyard.
She claims that, she tried to rescue Shivam, at that time, accused
hit her with fst blow on her face, as a result of which, her tooth fell
down and there was swelling. She stated that he again thrashed
Shivam by holding his legs on the washing stone, thereby striking
his head against it. He again thrashed him on the platform of umra.
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Shivam sustained head injury. Blood was oozing. Accused threw
Shivam out, but was caught midway in the air by Shyam Shere.
Shivam had become unconscious and was thereafter taken to
hospital. She learnt that he died. According to her, Shivam was
murdered by accused appellant.
16. While cross examining her, she is questioned whether
appellant was mental affected. But, she categorically answered
that not at present. But, she admitted in the past he was mentally
affected and was subjected to treatment. She answered that when
asked whether accused being mentally retarded, his wife not
staying with him. She answered that Mukund was not mentally
retarded. He has deserted his wife. She is questioned about wife of
accused, partition, sale instances, about consent of accused. She
answered that, at the time that sale, accused was not residing with
her. She admitted that, prior to the day of incident there were no
quarrel between her and accused appellant. She answered that,
blood did not fall on her clothes as a result of fall of tooth due to fst
blow given by accused. But, she answered that she had been
injuries to her nose also. To a question whether there was scuffle
between her daughter-in-law and accused, at the time of incident,
she answered in negative. Omissions are brought in para No. 7
about herself, Swarna, Sakshi and Shivam standing in the square
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of the house and about falling of her tooth, about accused catching
hold of deceased Shivam's legs and thrashing him on umra and
Shivam suffering head injury, and blood to be oozing. Rest is all
denial about falsely narrating the incident.
17. PW-4 Shyam claims that while he was collecting his tin
containing flour, he heard uproars and so he went to the house of
the child Shivam. When he reached there he stated mother of
Shivam had come on road while Mukund was coming out of the big
door of the house with the child. He stated that he caught hold of
both legs of the child and grabbed the neck of the child with the
other hand. According to him, 4 to 5 persons asked appellant
accused to handover the child while he was standing on the
platform. He stated that as he was keeping the child down, he
swiftly put his both hands under the child and caught hold of him.
The gestures made by witness are noted by learned trial Judge.
Witness stated that the child was weeping, but it later on stopped.
Motorcycle of Sunder Digraskar was brought. Sunder and Vasant
took Shivam to the hospital. He stated that on the next day he
learnt that child died.
18. On the point of actual incident, it has come in his cross
that he had not disclosed before police in his statement that he had
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been to a flour, thereafter hearing sounds of uproars coming from
the house of child Shivam, on hearing cries of the child and mother
of Shivam, reaching at the road, Mukund coming out of the big door
with the child. Therefore, omissions to the above text has come in
para 3 of this testimony. He admitted that, he did not state that
accused caught hold of both legs of the child and grabbed his neck,
about accused keeping the child down and this witness promptly
holding it, hearing cries of the child which subsequently stopped.
However, he denied falsely stating in his chief.
ANALYSIS OF ABOVE OCULAR ACCOUNT
19. On carefully analyzing the above direct evidence, it is
emerging that, PW-1 Narayan informant is not a direct eye witness
and he has categorically admitted in his cross-examination.
Therefore, whatever he deposed was learnt by him. Similarly, even
testimony of PW-4 Shyam is not worthy of credence as material
omissions are brought in his cross-examination. Therefore, it is
doubtful as to whether this witness also had occasion to directly
see the alleged event. However, his testimony as regards to taking
the child to the hospital can defnitely taken aid of. His evidence
about child initially crying and thereafter stopped crying also can
be taken recourse to.
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In our considered opinion, testimonies of mother of
deceased Shivam i.e. PW-2 Swarna and PW-3 Laxmibai,
grandmother of the child are only relevant. These two witnesses
are found to be lending support to each other on the point of actual
occurrence and their testimonies have remained unshaken on the
point of event. Mother and grandmother are giving proper
sequence about arrival of accused and putting up demand money
for liquor and on refusal to meet the demand accused forcibly
snatching the child from PW-2 Swarna mother of child. They both
are consistent about child being caught by legs and banged and
struck on the floor by the accused. The manner of suggestion to
PW-2 Swarna about she suffering injuries during process of
snatching and suggestion to PW-3 Laxmibai about scuffle between
accused and PW-2 Swarna clearly show that presence of accused
and occurrence is itself not disputed.
20. It is pertinent to note that the manner of cross-
examination shows that an attempt has been made to show that
accused was mentally retarded. However, such defence seems to
have been taken before this appellate court for the frst time. But,
there is no supporting material in that regard. Defence of such
nature has not been taken or probablized in the trial court at any
point of time since commencement of trial. Appellant/accused had
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availed the opportunity of answering questions regarding
incriminating material that had cropped up in the evidence against
him i.e. at the time of section 313 of Cr.P.C. No specifc defence of
insanity has been taken. Even otherwise for entitlement of
protection of insanity, it has to be demonstrated that so called
insanity was "legal insanity" and not mere mental insanity. There
is difference between both. Law to that extent has been lucidly and
succinctly dealt numerous times by the Hon'ble Apex Court in
various cases including Dahyabhai Chhaganbhai Thakkar Vs. State
of Gujarat, AIR 1964 SC 1563; Ratan Lal Vs. State of Madhya
Pradesh, AIR 1971 SC 778; Surendra Mishra Vs. State of
Jharkhand, (2011) 11 SCC 495; Bapu @ Gujraj Singh Vs. State of
Rajasthan, (2007) 8 SCC 66, it has not been shown that at the time
of incident accused was under the influence of any insanity or was
at relevant time taking treatment for such ailment. Crucial time to
ascertain state of mind is the time when the incident took place.
Taking into account such requirements, here it is evident that
accused who was already upset with his mother, specifcally
demanded money for liquor and on refusal, he issued threats to kill
the baby and further indulged in the act of executing the threat.
Therefore, the role played by him is suffcient to draw inference
that he was not under influence of any insanity as claimed. Even,
what was the exact nature of mental ailment is not brought on
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record. No medical papers of previous treatment are brought to the
trial Court or this Court. Therefore, we are afraid whether it is
open for appellant to put-forth such plea in absence of any credible
evidence.
21. We have considered the judgment passed by learned
trial Judge. In para 13 learned trial Judge has observed that
accused was rational in his conduct and talks. In para 15 learned
trial Judge has discussed case put-forth by accused about his
quarrels with his brother Narayan and wife of Narayan PW-2
Swarna. Evidence of prosecution suggest demand of money for
liquor and on account of failure to receive money as demanded,
accused seems to have caused injuries to the child Shivam. As
stated above, there is nothing on record to accept the defence
raised herein about so called unft mental condition of accused at
the time of incident so as to extend the beneft available under law.
No material has been placed on record by accused during the entire
trial which commenced from the stage of charge dated 29.01.2015
till conclusion of trial dated 29.08.2015 regarding legal insanity. In
the light of such facts and circumstances, the attempt made before
us for the frst time is virtually futile.
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SUMMATIONS
22. To sum up here evidence of PW-2 Swarna and PW-3
Laxmibai clearly and cogently brought on record about accused to
be discontented on account of not receiving sale proceeds from his
mother, he getting enraged on failure to receive money from her
for drinking liquor that night and thereafter he initially issuing
threats to kill Shivam and fnally snatching him, holding the said
child with both legs, flinging him and he struck the child on the
cement floor and causing him intracranial injury with cardio
pulmonary arrest. Resultantly, he is solely responsible for death of
innocent child of one and half year old who met with homicidal
death. Mother and grandmother are unanimous about gruesome
act by accused. Therefore, guilt has been rightly fastened against
him.
23. We have examined the entire judgment passed by
learned trial Judge. It is noticed that, learned trial Judge has
minutely and carefully conducted the trial from the initial stage.
Efforts are done to note the demeanor of witnesses, accused during
trial. Principles of law while appreciating oral evidence has been
borne in mind while scrutinizing the oral accounts of all four direct
eye witnesses. Findings reached at are supported with sound
reasons. We unequivocally express our concurrence to the manner
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of appreciation and conclusion reached at by learned trial Judge.
Evidence on behalf of prosecution is inspiring confdence. No
perversity or illegality is brought to our notice, so as to interfere in
the judgment under challenge. Hence, fnding no merits in the
appeal, we proceed to pass following order:-
ORDER
(i) The criminal appeal is hereby dismissed.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
