Bombay High Court
Kashabai Madansingh Kakarwal vs State Of Maha on 9 August, 2024
2024:BHC-AUG:17498
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.515 OF 2004
Kashabai W/o. Madansingh Kakarwal,
(Rajput), Age : 40 years, Occu. : Labour,
R/o. Bhagatsingh Nagar, Waluj,
Taluka : Gangapur, Dist. Aurangabad ... Appellant.
Versus
The State of Maharashtra,
Through Police Sub-Inspector,
Police Station Waluj,
Taluka Gangapur, Dist. Aurangabad ... Respondent.
...
Mr. P. N. Sonpethkar, Advocate for Appellant
Mr. Rajdeep D. Raut, APP for Respondent - State
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 30th JULY, 2024
PRONOUNCED ON : 9th AUGUST, 2024
JUDGMENT :
1. In this appeal, there is challenge to the judgment and
order of conviction recorded by Ist Ad-hoc Additional Sessions
Judge, Aurangabad on 26.11.2002 in Sessions Case No. 262 of
2002, recording guilt and sentencing appellant for commission of
offence punishable under section 304 Part II of Indian Penal Code
(IPC).
IN SHORT PROSECUTION VERSION IN TRIAL COURT IS AS UNDER
2. Appellant delivered male child on 19.04.2002 in the
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maternity hospital of PW1 Dr. Gangawal. She sought discharge
and took the new born away. However, she caused head injury to
the infant, resulting his death and thereafter disposed of the dead
body on Aurangabad - Ahmednagar Road. PW3 Santosh noticed
dead body and approached Waluj police station and lodged report
at Exh.17. Police machinery swung into action and investigation
was carried out by PW8 P.I. Dasare, who after gathering evidence,
arrested accused and charge-sheeted her and she was tried before
Ist Ad-hoc Additional Sessions Judge, Aurangabad vide Sessions
Case No. 262 of 2002.
The trial culminated into conviction for above offence.
Present appeal is offshoot of said conviction.
EVIDENCE ON RECORD
3. PW1 Dr. Anil Gangawal, who ran maternity hospital
named Leela Nursing Home, deposed about appellant hospitalized
for delivery and she giving birth to a male child and getting
discharge, he carried certificate and medical papers (Exhs.13 and
14)
PW2 Syed Bibi, neighbour of appellant, stated that, she
had accompanied to the hospital of PW1 Dr. Gangawal for delivery
of appellant and appellant delivered a male child. On the next day,
she saw accused appellant passing from the rear side of her house
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along with her son and daughter, but she was not carrying the new
born delivered on previous day. She identified dead body of the new
born.
PW3 Santosh, informant, who, while on morning walk
noticed dead body of the new born on Aurangabad-Ahmednagar
road and approached Waluj Police Station.
PW4 Harun is a pancha to inquest panchanama at
Exh.13.
PW5 Raosaheb, Police Head Constable, who drew
inquest panchanama, spot and cloth seizure panchanama and
referred dead body for postmortem.
PW6 Rashid is a pancha to seizure of clothes of accused
(Exh.27).
PW7 Dr. Parshuram Kothekar, Autopsy Surgeon, who
issued opinion as probable cause of death due to head injury.
PW8 P.I. Dasare, the Investigating Officer, who
conducted investigation and charge-sheeted accused.
SUBMISSIONS
On behalf of Appellant :-
4. Learned counsel for appellant would submit that, there
is false implication and in absence of cogent, reliable and
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trustworthy evidence, he pointed out case is based on
circumstantial evidence. According to him, none of the
circumstances were so compatible or complete in nature so as to
hold appellant responsible. He pointed out that, there is no
evidence that, she is responsible for the death of the new born. He
pointed out that, there is no evidence or witness in support of
prosecution version that she caused head injury. Therefore,
according to him, learned trial court ought not to have accepted
the prosecution version and convicted the accused. Therefore, he
prays that, the judgment under challenge is required to be set aside
by allowing the appeal.
On behalf of Prosecution : -
5. In answer to above, learned APP submitted that, there
is strong and reliable evidence demonstrating and substantiating
that accused delivered baby in the hospital of PW1 Dr. Gangawal.
Such doctor has been examined. It is pointed out that, PW2 Syed
Bibi, immediate lady neighbour, who had accompanied accused for
getting admitted for delivery, has also been examined. She had
seen the new born. She has also spotted accused appellant on the
very next day without new born. That, dead body of new born was
abandoned and disposed of on a road. Complaint to that extent was
received from a citizen. That, thorough investigation revealed
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involvement of appellant and therefore, learned trial court
committed no error in accepting the case of prosecution and so it is
prayed the appeal be dismissed.
ANALYSIS
6. Here, guilt recorded by trial court for offence
punishable under section 304 Part II of IPC i.e. culpable homicide
not amounting to murder.
On careful scrutiny and analysis of evidence of PW1 Dr.
Gangawal and PW2 Syed Bibi, it is emerging that, appellant got
admitted for delivery in the hospital of PW1 Dr. Gangawal. In his
maternity home PW1 Dr. Gangawal performed delivery of
appellant at around 3:50 p.m. He also deposed that, she took
discharge on her request. This doctor has placed medical papers
Exhs.13 and 14. He has identified accused to be the same lady,
who had come for delivery and he also gave her name. His such
testimony has not been rendered doubtful or shaken.
7. Likewise, testimony of PW2 Syed Bibi also goes to show
that, she is immediate neighbour and she had accompanied
accused appellant to the hospital of PW1 Dr.Gangawal. She is very
categorical about male child being born. She has spotted accused
passing behind the back of her house on the very next day without
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the infant. She has also visited mortuary and identified the dead
body of infant. Therefore, even her evidence has not been rendered
doubtful in the cross examination. Thus, the testimony of PW1 Dr.
Gangawal and PW2 Syed Bibi categorically established that
accused gave birth to a male child and after taking discharge from
the hospital, new born was in her custody.
8. PW3 Santosh, a morning walker, had spotted dead
body of infant abandoned on a road while he was on a walk in the
morning of 20.04.2002. He had immediately reported the same to
police and on the strength of the same, FIR has been lodged. Even
his testimony has remained intact in spite of being cross examined.
9. PW7 Dr. Parshuram, who conducted postmortem,
deposed about conducting autopsy and issuing opinion regarding
death of infant and regarding head injury.
In cross examination, doctor has answered that, there
was possibility of fracture if head of infant is hammered with force
and that head injury noticed in column no.19 is possible by stone.
He also admitted that, said injury is possible if the delivery is not
performed by gynecologist, i.e. while taking out the the infant out
of uterus. However, he volunteered that, injury noted in column
no.19 is not possible due to forceps.
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Therefore, autopsy doctor's opinion about death due to
head injury is also proved by prosecution.
10. The above discussed evidence shows that, appellant is
the mother of the infant, who was born in the hospital of PW1 Dr.
Gangawal. It is a maternity home, where she herself got admitted
for delivery. Doctor has identified accused in the court. PW2 Syed
Bibi, independent witness and a neighbor, who accompanied and
admitted her in hospital, was present at the time delivery has seen
the male child. After two days, this witness has seen appellant
without the infant. The infant was noticed by PW3 Santosh in dead
condition, but wrapped and abandoned on a public road. Autopsy
surgeon confirmed death due to head injury. There is, both, direct
evidence on the point of admission for delivery and giving birth to
a male child, who was spotted dead. PW2 Syed Bibi has identified
the dead body to be the baby of appellant. Circumstances of being
abandoned and spotted by independent witness clearly shows that
appellant is responsible for the death. There was no explanation
from her assigning any reason for the death of her own child and
reason for abandoning the dead child. Consequently, there is
evidence against appellant for being responsible for death of her
child.
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11. Learned trial court has correctly appreciated the
available evidence. The conclusion drawn and the view taken by
learned trial Judge seems to be the possible view that could emerge
with such quality of evidence on record. There is no illegality or
perversity in the finding arrived at by the learned trial court.
Accordingly, I proceed to pass the following order :-
ORDER
The Criminal Appeal stands dismissed.
(ABHAY S. WAGHWASE, J.)
Tandale
