[Cites 6, Cited by 0]
Bombay High Court
Thaganabai Bhagwan Ghode vs The State Of Maharashtra on 17 December, 2025
2025:BHC-AUG:35675
367.02apeal
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.367 OF 2002
Thaganabai w/o Bhagwan Ghode,
Age: 55 years, Occu: labour,
R/o Goshegaon, Tq. Bhokardan,
District Jalna ....APPELLANT
VERSUS
1. State of Maharashtra
2. The Superintendent of Police,
Jalna, Dist. Jalna ....RESPONDENTS
.....
Mr Gajendra D. Jain, Advocate (appointed) for Appellant
Ms A. S. Mantri, APP for Respondents/State
.....
CORAM : SUSHIL M. GHODESWAR, J.
RESERVED ON : 17 NOVEMBER 2025
PRONOUNCED ON : 17 DECEMBER 2025
JUDGMENT :
-
1. By this appeal, appellant/accused prays for quashing and
setting aside the judgment and order of conviction and sentence dated
17/06/2002, passed by the learned IIIrd Additional Sessions Judge,
Jalna, Dist. Jalna in Sessions Case No.134/1996, convicting her for the
offence punishable under Sections 318 of the Indian Penal Code (for
shot 'IPC').
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2. The prosecution case in brief is as under :-
On 19/04/1995, PW-8/informant, namely, Munja
Madhavrao Muley, Police Sub-Inspector, Police Station, Hasnabad,
Tq. Bhokardan, Dist. Jalna, lodged the report. As per the said report,
he stated that, on the basis of certain secret information received on
13/04/1995, he came to know that the daughter-in-law of Mithu
Jayram Ghode (accused No.1), namely, Thaganabai Bhagwan Ghode
(present appellant) resident of Goshegaon had given a birth to a child
out of illicit relationship and the said child has been killed by accused
Mithu Ghode. Accordingly, he called the Police Patil of Goshegaon,
namely, Keshav Yadavrao Ghode for inquiry, who also informed that
such talks are going on in the village. Accordingly, inquiry came to be
conducted and it is found that, on 02/04/1995 at 2.00 p.m., appellant
Thaganabai was having some pains in her stomach. Therefore, her
father-in-law i.e. Mithu and PW-3/Prakash Sadashiv Mohite took her
to the Civil Hospital, Hasnabad in bullock-cart. One Baburao Mithu
Ghode/PW-2/son of Mithu had also followed them. Thereafter, after
examining her, doctor asked them to get her admitted in the hospital.
However, accused refused to get her admitted. Thereafter, accused
Mithu took her in bullock-cart towards Talegaon-Dabhadi. While
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proceeding towards Talegaon and reached near Javkheda, appellant
alleged to have delivered birth to one child near Ganesh Temple at
around 6:30 to 7.00 p.m. However, accused Mithu Ghode had thrown
the said child on road and proceeded towards Dabhadi. Another
person accompanying with them, namely, Baburao Ghode had
prevented him from behaving so. At that time, one Gopalsing Hirsing
came there through Jeep and alongwith whom there were other two
persons. They tried to give understanding to accused Mithu Ghode,
however, accused Mithu did not listen to them and when they also left
from the spot, Mithu alleged to have killed the infant by throttling his
neck under his foot heel and took body of said child towards
Hasnabad. Accordingly, PW-2/Babu Ghode came to Hasnabad Police
Station and informed the Head Constable Haridas Laxman Nikam
(accused No.3). However, Nikam took amount from them to asked
them to dispose of the dead body of the said child. Thereafter, they
took the child towards Hattinala of Gosegaon-Hasnabad road and
thrown away the said corpse in the bushes. Accordingly, informant
lodged report and a crime bearing C.R.No.I-29/1995 came to be
registered against accused persons for the offences punishable under
Section 302, 201 read with Section 34 of the Indian Penal Code.
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3. After registration of crime, investigation took place. In
order to bring home guilt against accused, the prosecution had
examined in all twelve witnesses. PW-1/Keshav Yadavrao Ghode,
Police Patil, Goshegaon was examined at Exh.38; PW-2/Baburao
Mithu Ghode, eye witness No.1 was examined at Exh.40;
PW-3/Prakash Sadashiv Mohite, eye witness No.2, who later became
hostile witness was examined at Exh.41; PW-4/Gautam Shamrao
Kala, witness to discovery panchnama who later became hostile was
examined at Exh.42; PW-5/Shaikh Mehmood Shaikh Samad, witness
to spot panchnama at hospital was examined at Exh.43;
PW-6/Shakilkhan Masoodkhan, witness to discovery panchnama who
also later became hostile was examined at Exh.46; PW-7/Moahn Anna
Hivarkar, Gold Smith was examined at Exh.48; PW-8/informant
Munja Muley, Police Sub-Inspector was examined at Exh.53;
PW-9/Abdul Aziz Abdul Kadar was panch to discovery panchhnama,
who later became hostile was examined at Exh.59; PW-10/Dr. Dipti
Dilip Vaidya, Medical Officer, Thane, who was examined at Exh.63;
PW-11/Trimbak Raoji Dabhade, panch to spot panchnama, who later
became hostile was examined at Exh.65 and PW-12/Sitaram
Harishchandra Pawar, Police Inspector, Basmat, Dist. Hingoli was
examined at Exh.69. Statements of material witnesses including two
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eye witnesses PW-2/Baburao Ghode and PW-3/Prakash Mohite were
recorded. All the three accused including Head Constable Nikam were
arrested. The Investigating Officer took permission of appointing
authority for prosecuting accused No.3/Nikam. Thereafter, charge-
sheet came to be filed against all three accused on 15/06/1996 in the
Court of Judicial Magistrate First Class, Bhokardan, who made over
the said case to the learned Additional Sessions Judge, Jalna, who
framed charge on 18/07/2000 at Exh.25 under Sections 302 read with
Section 34 of the IPC against all the accused and under Section 213 of
IPC against accused No.3 at Exh.25. All accused pleaded not guilty
and were came to be tried.
4. After recording the evidence and hearing learned
Advocates for the respective sides, the learned Additional Sessions
Judge, Jalna, vide his order dated 17/06/2002 in Sessions Case
No.134/1996 acquitted accused Nos.1/Mithu Jayram Ghode i.e. father-
in-law of present appellant and accused No.3 Haridas Nikam, Police
Head Constable. However, vide the same impugned judgment and
order, the learned Additional Sessions Judge convicted present
appellant for the offence punishable under Section 318 of the Indian
Penal Code and sentenced her to suffer one year rigorous
imprisonment. Being aggrieved by the said impugned judgment and
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order of conviction, appellant has approached this Court in the present
appeal praying for quashing and setting aside the same.
5. Heard learned Advocate Mr Jain for appellant and learned
APP Ms Mantri for respondents/State
6. Learned Advocate for the appellant submits that the
impugned judgment and order is illegal and conviction of present
appellant is based on presumptions as the learned Sessions Judge has
failed to appreciate evidence on record in its proper perspective. He
further submits that the learned Sessions Judge only relied on evidence
of Medical Officer that the appellant must have given birth to a child
within six weeks whereas that evidence was only on the basis of
symptoms, and thus, her evidence is of no value since resemblances
will not prove a factum which can be differ from person to person. He
also submits that the dead body of child was not found and also
nothing was found at the place on which the prosecution had alleged
that the said child was thrown and thus, only presumptions cannot
prove the guilt of a person beyond reasonable doubt. He further
submits that evidence on record does not warrant conviction of
appellant and she is also entitled to be acquitted like accused Nos.1
and 3. He also submits that present appellant was alleged to be
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accompanied with accused No.1/Mithu who alleged to have killed the
child by pressing neck with his heel, however, learned Additional
Sessions Judge yet acquitted accused No.1 for want of evidence and
therefore, present appellant is also entitled to be acquitted and her
conviction is not warranted. With all these submissions, learned
Advocate for the appellant submits that the prosecution has failed to
prove the guilt against the appellant beyond reasonable doubt, and
thus, prays for allowing of the present appeal.
7. Per contra, learned APP Ms Mantri appearing for the
respondents/State has strenuously supported the impugned judgment
and order passed by learned Additional Sessions Judge. She submits
that there is material evidence of eye witnesses. PW-2/Baburao Ghode
deposed against present appellant who is his deceased brother's wife.
She then submits that doctor had rightly opined that appellant had
delivered a child about more than two weeks back but less than six
weeks and thus there is no reason to disbelieve her evidence on the
point of delivery of a child. According to her, learned Sessions Judge,
after analyzing evidence brought on record in proper perspective, has
rightly delivered the impugned judgment and order and has rightly
convicted the appellant as appellant has committed offence of secretly
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disposing the dead body of her child with intention to conceal the birth
of child. Thus, she submits that the prosecution has established its
case beyond all reasonable doubts and appellant has failed to prove her
defence and thus, there is no scope of interference in the impugned
judgment. She, therefore, prays for dismissal of the present appeal.
8. I have heard learned advocates for the parties and have
gone through the details of the prosecution case as well as perused
record and proceedings minutely. Learned Sessions Court has
convicted the appellant for offences punishable under Section 318 of
the IPC which reads thus :-
"318. Concealment of birth by secret disposal of dead body.--
Whoever, by secretly burying or otherwise disposing of the death body of a
child whether such child die before or after or during its birth,
intentionally conceals or endeavours to conceal the birth of such child,
shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both."
9. Perusal of the aforesaid section discloses that same is
intended to prevent infanticide. It is directed against concealing of
birth of child secretly burying or disposal of his body. Thus, the
ingredients of aforesaid offence firstly states requirement of secretly
burying or otherwise disposal of body of child. Secondly, it is
immaterial as to whether such child is died before or after or during its
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birth. Thirdly, the intention to conceal the birth of such child by such
secret burying or disposal of child. The complete reading of aforesaid
provision would reveal firstly that accused can be convicted if he/she
is involved in secret burying or otherwise disposing of dead body of
the child. Secondly, there was intention to conceal such birth by secret
burying or disposal.
10. In the present case, the prosecution has examined in all 12
witnesses. PW-2 /Baburao Mithu Ghode was examined at Exhibit 40,
being eye witness. He had specifically stated that his father Mithu
(accused No.1) thrown the child on road and refused to take child into
bullock-cart. On the said account, there was verbal exchange between
of this witness with his father Mithu (accused No.1). He also stated
that his father accused No.1 got down from bullock-cart and pressed
his foot on the neck of the child while it was lying on the road. The
child had then died. He further stated that accused No.1 thereafter
gave that body of child to Thaganabai i.e. present appellant. The said
witness, in his cross-examination stated that there were not talking
terms between him and his father since partition amongst his brothers
took place in respect of ancestral property. Though he was very much
present alongwith accused persons, he had not reported to police and
his statement was recorded by police after 7-8 days after incident.
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Thereafter, he had denied that Thaganabai had delivered a still born
child and also denied that villagers were discussing that child was born
out of illicit relationship between him appellant Thaganabai. He
further denied that, since he apprehended arrest, he concocted story
against accused No.1. The another eye witness who was examined by
prosecution, namely, Prakash Mohite/PW-3 had turned hostile. With
these direct evidences, the prosecution sought to prove the charges
against present accused. What is most relevant in this matter is that
body of the child had never been found or seized by the prosecution.
There is no evidence of burying secretly or disposing of dead body of
the child. In absence of discovery of dead body of the child, the
prosecution sought to prove its case against accused persons for the
offence punishable under Section 318 of the IPC.
11. Learned Sessions Court, since the prosecution failed to
discover the dead body of a child, acquitted accused Nos.1 and 3 from
the charges. However, on the basis of same evidence, learned Sessions
Court held the appellant guilty under Section 318 of the Indian Penal
Code and sentenced her to suffer one year rigorous imprisonment.
12. In this entire case of prosecution, the aspect of guilty
mind of the appellant is nowhere established. It is nowhere brought on
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record that the appellant was having an intent for committing such
crime. In this regard, a well-known maxim, namely "Actus non facit
reum nisi mens rea" is relevant one. The meaning of said maxim is, an
act itself does not make person guilty unless his intentions were so. It
is thus, absolutely clear that, in order to prove the crime against
accused, the prosecution is required to bring before this Court the guilt
or evil intent of the accused persons at the time of committing such
crime, because unless and until such evil intent is proved, any
wrongful act committed by him, cannot be called as crime. If the
evidence of the witness is perused, nobody has pointed out any such
intention on the part of present appellant to conceal the birth or secret
burying or disposal of dead body. If the evidence of the witnesses are
minutely scrutinized, it would reveal that the present appellant at the
relevant time was in the process of delivering a child. Whatever the
actions and events took place between accused and the witnesses,
however, in all that, the involvement of present appellant is totally
missing. Naturally, even if it is assumed that the appellant had
delivered any child she would have been in semi-conscious state, and
therefore, her involvement as regards concealing the birth or disposing
the body of newly born child, is not clear on the basis of evidence
brought by the prosecution on record.
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13. Apart from above, PW-3/Prakash Sadashiv Mohite, eye
witness No.2 examined at Exh.41; PW-4/Gautam Shamrao Kala,
witness to discovery panchnama, examined at Exh.42; PW-5/Shaikh
Mehmood Shaikh Samad, witness to spot panchnama at hospital
examined at Exh.43; PW-6/Shakilkhan Masoodkhan, witness to
discovery panchnama examined at Exh.46 and PW-9/Abdul Aziz
Abdul Kadar panch to discovery panchhnama, examined at Exh.59 all
were later became hostile and their evidence is of no helpful to the
prosecution. It is also required to be noted that PW-2/Baburao Ghode
and PW-3/Prakash Mohite were also arrested initially by the police on
suspicion.
14. Learned Sessions Court, on the very same evidence, had
acquitted accused Nos.1 Mithu, father-in-law of appellant and accused
No.3 Police Head Constable Haridas Nikam. The said two accused
persons came to be acquitted since the body of the child could not be
discovered by the prosecution. If the body could not be discovered,
whether it was concealed or buried is also not established. Now, the
aspect of delivering the child is concerned, the learned Sessions Court
relied on the evidence of Medical Officer PW10/ Dr. Dipti Vaidya,
whose evidence was recorded at Exhibit No.63. The said witness had
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stated that, at the relevant time she was working at Civil Hospital,
Jalna and on 21/04/1995 at 7.00 p.m., the appellant was brought by the
police to Civil Hospital and she had examined the appellant and opined
that patient had delivered a child more than two week but within six
weeks and she had issued certificate which is at Exhibit 64. Though
such evidence is brought by the prosecution on record, however, there
was no cross-examination of PW-10 /Dr. Vaidya. For the purpose of
attracting offence under Section 318 of the Indian Penal Code, the
prosecution is required to prove that the accused has concealed the
birth or secrete disposing of dead body. As stated earlier, since the
prosecution could not establish through its evidence as regards birth or
secrete disposal or burying the body, it is very difficult to base
conviction under Section 318 of the Indian Penal Code to the
appellant.
15. In view of the foregoing discussion, I am of the view that
the prosecution has failed to establish the ingredients of offences
charged against appellant beyond reasonable doubt. Consequently,
this Criminal Appeal is allowed and the judgment and order of
conviction and sentence dated 17/06/2002, passed by the learned
Additional Sessions Judge, Jalna, Dist. Jalna in Special Case
No.134/1996, is quashed and set aside. The appellant/accused is
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acquitted of the said offence. The record and proceedings be sent back
to the concerned Court.
16. Fees of learned Advocate appointed to represent appellant
is to be paid through the High Court Legal Services Sub-Committee,
Aurangabad as per Rules.
[SUSHIL M. GHODESWAR, J.]
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