Tushar Mahesh Saujani vs The State Of Maharashtra
2024 Latest Caselaw 22792 Bom

Bombay High Court

Tushar Mahesh Saujani vs The State Of Maharashtra on 6 August, 2024

Author: Bharati Dangre

Bench: Bharati Dangre

2024:BHC-AS:32533-DB

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION
                               CRIMINAL APPEAL NO. 412 OF 2019
                                           WITH
                            INTERIM APPLICATION NO. 2014 OF 2024
                                            IN
                               CRIMINAL APPEAL NO. 412 OF 2019


               Tushar Mahesh Saujani                          .. Appellant
                                        Versus
               The State of Maharashtra                       .. Respondent

                                                        ...

               Ms.Ameeta Kuttikrishnan i/b Shabana Sayed, Shambhavi Desai
               for the appellant.
               Ms. M.M. Deshmukh, APP for the State.

                                    CORAM:BHARATI DANGRE &
                                            MANJUSHA DESHPANDE,JJ.
                                    DATED : 6th AUGUST, 2024

               JUDGMENT (Per BHARATI DANGRE, J)

1 Hasti, a girl aged 1 ½ year old, died on 28/9/2015 at around 6.00 pm, and her own father face the charge of committing her murder by intentionally or knowingly causing her death.

He was subjected to trial before the Addl Sessions Judge, Vasai in Sessions Case No.34/2016, where he was charged under section 302 IPC, and on the prosecution establishing it's

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case that it is Tushar, who out of anger, snatched her from her mother PW 1 and dashed her on the ground, having knowledge that it would cause her death.

On recording the finding of guilt, the Sessions Judge did not accede to the request of the prosecution to sentence him to death, as the learned Judge noted that it is not a rarest of rare case, though it is a serious offence that a young child has been done to death by her father himself.

By judgment delivered on 19/12/2018, he was sentenced to undergo Life Imprisonment and pay fine of Rs. 10,000/-.

Being aggrieved by the finding of conviction and the sentence imposed by the learned Sessions judge, Tushar Sanjani has filed the present appeal.

2 The Appeal came to be admitted on 19/11/2018 and the Record and Proceedings along with the paper book was directed to be called.

Interim Application No. 2014/2024 is filed by the appellant, seeking suspension of sentence and his release on bail during the pendency of the trial, by urging before us that since the date of his arrest, he remain incarcerated, and as R & P was received, we directed listing of the Appeal for final hearing, considering that there were only eight witnesses examined by the prosecution.

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Accordingly, we have taken up the Appeal for final hearing.

3 Heard Ms.Ameeta Kuttikrishnan, who represent Tushar Saujani, the appellant, and by taking us through the evidence brought on record along with the finding rendered by the learned Judge, while convicting him for the offence punishable under Section 302 of the IPC, it is the attempt of Ms. Kuttikrishnan to submit that Tushar had no intention to cause death of his own child, but the circumstances which are brought on record by his own wife along with the other eye witnesses to the incident, would reveal that he was in a fit of anger and he snatched the minor girl from the mother, held her by her legs and thumped her on the ground causing a head injury, as a result she became unconscious.

Ms.Kuttikrishnan, though do not deny the happening of the incident, but it is her specific submission that the accused had no intention in causing her death and in any case, he is a father who is repenting his own act and has been duly punished, in the wake of his arrest, immediately, on 29/9/2015, upon the occurrence of the incident.

Per contra, the learned APP Ms. Deshmukh has supported the impugned judgment by taking us through the evidence on record, and by submitting that the prosecution has established it's case beyond reasonable doubt and a young child

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has been done to death and therefore, in the light of the finding recorded in the impugned judgment, the punishment imposed upon the appellant is befitting his act, which calls for no interference.

4 It is in this background we have perused the evidence led by the prosecution before the Sessions Judge, in support of the charge that on 28/9/2015, the accused in the residential house of his mother-in-law, committed murder of his own child Hasti, by intentionally or knowingly causing her death and thus committed the offence punishable u/s.302 of the IPC.

In support of it's case, the mother of Hasti and wife of the accused Arti Tushar Saujani was examined as PW 1.

She testified that she was married to Tushar two years ago and a daughter was born out of the wedlock. She categorically state that quarrels used to often ensue between the couple, as Tushar suspected her fidelity and he would impose fetters on her movements, and he even did not permit her to meet her own mother. He used to consume liquor and even assault her and therefore, in the Ganpati Festival of 2015, being fed up with his attitude, she left the house and went to stay with her mother along with her daughter Hasti.

On 29/9/2015, at around 6.00 p.m, when she was sitting in the courtyard of the house of her mother with her maternal aunt, and there were other neighbors who were also

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present, Tushar arrived and started assaulting her suddenly. Her daughter was in her arms and he snatched her all of a sudden, held her on his shoulders and then by holding her legs, he lifted her and slammed her on the ground, which made her unconscious and he fled from the spot.

As per Arti, Hasti sustained injury on back side of her head and she was taken to Chaitanya hospital from there, they were sent to Mira Road hospital when she was admitted in ICU but looking to the seriousness of the injuries, she was shifted to Nair Hospital. The doctors on examining her, declared that she had already passed away.

5 The version given by PW 1 is corroborated by PW 2 her maternal aunt, Pinky Ramesh Singh and Parvati Manjit Singh, being examined and PW 5 and 6, who had also witnessed the said incident.

In sync with the child's mother Arti, the witnesses have deposed that Tushar arrived in the house of her mother, and he lifted the child with legs by holding her, hit her on the ground and ran away.

The three witnesses, speaking in sync with one another, have thus established the case of the prosecution that it is the appellant who pulled Hasti from the arms of Arti and banged her on the ground by holding her by her legs.

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Subsequent to this incident, the girl child was taken to the hospital, but could not survive.

PW 3 is the witness on spot, who has deposed that black and white colour bangles of the child were found on the spot and they were seized during the course of investigation. He was confronted with the pieces of bangles and identified them to be Article 'A'.

6 The Medical Officer PW 7 Trishul Polode working as Assistant Professor at Nair Hospital and attached to Forensic Science, who has conducted the post mortem of the corpse on 29/9/2015, is examined as PW 7.

It is through PW 7, the post mortem report is exhibited as Exhibit 27.

He deposed about the injuries, in the post mortem report and the internal injuries are described by him as 'underscalp hematoma of size 20 x 10 x 0.5 cm reddish in colour present over right frontal parietal temporal occipital region -- Comunitted displaced fracture of size 15 x 8 cm present over fronto parieto temporal bone'.

As far as the appearance of brain is concerned, the post mortem report given the following descriptionhas described as below:-

"Dura matter torn corresponding to fracture line area, meningeal vessels congested. Brain matter visible through displaced

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fracture Brain contusion of size 5 x 3 cm present over right parieto occipital region, reddish coloured thin film of diffuse sub arachnoid hemorrhage present over both cerebra hemispheres."

PW 7 attributed the following cause of death.

"Head injury in an alleged case of assault (unnatural)"

7 The Investigating Officer Arvind Kamble is examined as PW 8, who gave an overall view of the investigation carried out by him, which include the conduct of the spot panchnama, the post mortem report for ascertaining the cause of death. Along with the paper of investigation, report of the Chemical Analyser, were also placed on record through this witness.

8 Appreciating the evidence of the eye witnesses, including the mother herself and the evidence of the medical expert, who attribute the death of Hasti, on account of the head injury, which is evidently on account of the bashing of the child on the ground by the accused, is the appellant before us, the learned Judge has recorded the finding of conviction.

However, on appreciating the evidence on record, it becomes evident that there was a matrimonial discord between Tushar and Arti, his wife and this constrained her to move to her mother's place. Out of the anguish on the unfortunate day, Tushar reached her mother's place and there was some quibble, in which he hit his wife.

In rage of anger, he pulled his daughter, held her by legs and banged her head down, obviously with the knowledge

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that if 1 ½ year old child is treated in such fashion, she may suffer death or suffer such bodily injury, which may result into her death, but definitely Hasti being her own child, he had no intention to kill her.

The surrounding circumstances, which have surfaced through the eye witnesses, would reveal that he was in a fit of rage and anguish and all of a sudden, without any pre-meditation when he found the daughter in the lap of her mother, he forcibly pulled her and moved her by holding her legs, and banged her down.

Definitely, no father would indulge in such an act, except in a moment of exasperation, which he was, and before he could realize what harm he would cause to the child, he had held the child by her legs and pressed her down on the ground causing her head injury which ultimately was responsible for her death.

Finding that he had no intention to do so, though he had knowledge that his act would result in her death or cause such bodily injury, which would cause her death, we deem it appropriate to classify his act under Part II of Section 304, finding that he had no intention to commit her murder.

9 As a result, we acquit the appellant of the charge under section 302 IPC and instead, convert his conviction under Part I of Section 304 of IPC and direct that he shall undergo the sentence of 10 years of Imprisonment instead of sentence of

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imprisonment for Life which was imposed on him on being convicted u/s.302 IPC.

We do not intend to interfere with any other finding recorded by the Sessions Judge in the impugned judgment. Since we have acquitted the appellant of the charge under Section 302 IPC, on undergoing 10 years of Imprisonment, he is directed to set at liberty unless his incarceration is warranted on account of some other charge.

By modifying the judgment dated 9/11/2018, the Appeal is partly allowed.

In view of the disposal of Criminal Appeal, IA No. 2014/2024 do not survive and is disposed off.

(MANJUSHA DESHPANDE,J) (BHARATI DANGRE, J.)

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