Bombay High Court
Vilas Bhagvan Yelpale vs The State Of Maharashtra on 16 July, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:29260-DB
P.H. Jayani 905 APEAL 840.2019 final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 840 OF 2019
WITH
INTERIM APPLICATION NO. 1945 OF 2025
IN
CRIMINAL APPEAL NO. 840 OF 2019
Mr. Vilas Bhagvan Yelpale
Age - 42 years, occ. Farmer,
R/at - Ajanale, Taluka Sangola,
Dist - Solapur.
(Presently at Central Prison Yerwada,
Solapur) .... Appellant
v/s.
The State of Maharashtra
through Sangola Police Station, Sangola,
District - Solapur .... Respondent
Mr. Rahul Khot a/w. Mr. Dattatray Yadav and Mr. Sumer Daithankar
for the Appellant.
Ms. Geeta P. Mulekar, APP for the Respondent - State.
CORAM : SARANG V. KOTWAL AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 09th JULY, 2025.
PRONOUNCED ON : 16th JULY, 2025.
JUDGMENT :
(Per : SHYAM C. CHANDAK, J.) :-
1) This Appeal arises out of a Sessions Case No.08/2012
relating to the murder of a child who lived barely for a month after his
birth. Regrettably, the child was son of the Appellant - the Original
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Accused No.1. The Appellant's mother and cousin aunt were the
Original Accused Nos.2 to 3. All three accused were prosecuted for the
offences punishable under Sections 302, 109, 506 read with 34 of the
Indian Penal Code, 1860 in the Court of the learned Additional
Sessions Judge, Pandharpur.
By the impugned Judgment and Order dated 10/05/2019
passed by the said Court in the said case, the Appellant was convicted
for the offence of Section 302 I.P.C. and sentenced to suffer life
imprisonment and to pay a fine of Rs.5000/- in default to suffer one
year additional imprisonment, with the benefit of the set-off under
Section 428 of the Code of Criminal Procedure ("Cr.P.C."). However,
the trial Court acquitted the Accused Nos.2 and 3.
2) Heard Mr. Rahul Khot, the learned counsel for the
Appellant and Ms. Geeta Mulekar, learned APP for Respondent-State.
Perused the record.
3) The prosecution story giving rise to this Appeal is that, the
first informant Mrs. Pushpa Yelpale (PW-1) is the wife of the
Appellant. They were married 08 years prior to the incident. After the
marriage, PW-1 jointly resided with the Appellant and his both parents
at village - Ajanale, Taluka-Sangola, District-Solapur. But after five-six
months, both the in-laws of PW-1 started residing separately in the
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adjacent room, on account of domestic reasons. Thereafter, PW-1 was
blessed with a male child - Mayur, aged 06 years at the time of the
incident. Since two years prior to the incident, the Appellant had illicit
relationship with Accused No.3, who was residing nearby. When PW-1
knew about that relationship, she opposed the Appellant. In response,
the Appellant and Accused No.2 started harassing PW-1, at the
instigation of Accused No.3. PW-1 informed her plight to her parents.
Her parents came to Ajanale and gave an understanding to the
Appellant and Accused No.2. Thereafter, PW-1 gave birth to a female
child namely Pranjal, who was aged 1½ years at the time of the
incident. Meanwhile, PW-1 conceived a third child from the Appellant.
When the first five months of the pregnancy were completed, PW-1
revealed about her pregnancy to the Appellant and Accused No.2. But,
the two did not want the third child and therefore, they suggested PW-
1 for abortion and also threatened her that they would kill the child, if
born. Yet, PW-1 did not listen and she went to her parents' house for
her delivery. There, she delivered a male child ("the baby"). After the
delivery, PW-1 stayed with her parents for a period of one month.
Then PW-1 returned to the Appellant's house on 20/10/2011. On
seeing the baby, the Appellant and Accused No.2 questioned PW-1 as
to why she gave birth to the baby, when she was told to abort him.
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Thereafter, the Appellant and Accused No.2 harassed PW-1 more at
the instigation of Accused No.3.
On 27/10/2011, at about 08:00 a.m., the Appellant went
out of the village, for work. In the night, PW-1 had her meal and
slept. At about 12:00 in the midnight, the Appellant returned home
and instructed PW-1 to cover the baby with a quilt (made of saree).
So, PW-1 covered the baby. The Appellant slept on a cot outside, as
their room had no door. At about 01:30 hours of 28/10/2011, PW-1
fed the baby milk and laid him down in the crib, and she also slept in
the same room. At about 05:30 a.m., suddenly PW-1 woke up. At that
time PW-1 found that the Appellant was not present on the cot and
the baby was missing from the cradle. Therefore, PW-1 started crying.
Hearing her shouts, the Appellant and Accused No.2 came there from
the room of PW-1's father-in-law. At this juncture, the Appellant and
Accused No.2 were carrying the same quilt which PW-1 had spread
over the baby. Therefore, PW-1 questioned them about the quilt and
the baby. The Appellant and Accused No.2 replied that a wolf had
taken away the baby and told her not to cry and keep quiet. They also
gave PW-1 an understanding to let go of what had happened and that,
they would search for the baby in the morning. After the sunrise,
PW-1, Appellant and relatives searched for the baby. But, the baby
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was not found. The Appellant informed the incident to the parents of
PW-1.
On 29/10/2011, in the morning, PW-1's cousin brother-in-
law Laxman Yelpale (PW-4) came and informed PW-1, Appellant and
Accused No.2 that the baby was lying in a Well in the field of Maruti
Patil. Immediately, they went there. The baby was floating in the Well
water. PW-1 identified the baby. Then the Appellant and Accused No.2
brought PW-1 home, forcibly. Meanwhile, PW-4 went to the Police
Station and filed a Report (Exh.83) of the baby's death. The Police
registered that Report at A.D.No.105/2011 under Section 174 of
Cr.P.C. and arrived at the Well. Therefore, the Appellant and Accused
No.2 took PW-1 to the Well. The Police removed the baby from the
Well. Then, the Police recorded the Inquest Panchanama (Exh.103),
Spot Panchnama (Exh.79) and sent the baby's body for post-mortem
examination.
Thereafter, PW-1 questioned the Appellant and Accused
No.2 as to where and how they got the said quilt; who threw the baby
in the Well. But, the Appellant and Accused No.2 said to PW-1 as "why
did you give birth to the third child? Why did you not abort?''
Therefore, we both threw the baby in the well on 28/10/2011, after
01:30 hours, when you were sleeping". Further, the Appellant and
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Accused No.2 threatened PW-1 not to disclose the said fact to anyone
otherwise they would kill her. The health of PW-1 was adversely
affected due to the incident and she had become weak. Therefore, she
took medicines. On 01/11/2011, PW-1 went to the Police Station
alongwith her parents and brother and filed the Report (Exh.64).
Therein, PW-1 narrated the incident as above. The Police registered
that Report at F.I.R. No.299/2011 against all the accused.
PW-8-Ganpati Mangle, then Assistant Police Inspector
(API), carried out the investigation. He arrested the accused persons
on 03/11/2011. He recorded the Spot Panchanama (Exh.97) at the
room of PW-1 on 04/11/2011. During Police custody, on 05/11/2011,
the Appellant made a voluntary disclosure (Exh.98) that the quilt was
torn and he would recover the quilt by showing the place where he
concealed the same. Then, the Appellant led PW-8 and the panchas to
village Ajanale and there, he took them to a field and discovered the
quilt from a pomegranate tree. PW-8 seized the same. On completion
of the investigation, PW-8 submitted the charge-sheet.
4) During the trial, the prosecution has examined following
eight witnesses and exhibited several documents as referred above :-
PW-1, Pushpa Vilas Yelpale, First Informant. PW-2, Ramchandra
Ananda Vitekar, father of PW-1. PW-3, Arun Shankar Yelpale, Spot
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Panch near the Well. PW-4, Laxman Pandurand Yelpale, cousin
brother-in-law of PW-1, who filed the initial Report (Exh.83). PW-5,
Balasaheb Mahadeo Kolawale, the Spot Panch at the house of PW-1.
PW-6 Arvind Vaant Yelpale and PW-7 Mahadeo Kaka Karde, both
Panchas to the Disclosure Statement and discovery of the quilt. PW-8,
Ganpati Bhikaji Mangle, Investigation Officer.
PW-5, PW-6 and PW-7 did not support the prosecution's
case. We have therefore jettisoned their evidence.
5) On closure of the prosecution evidence the trial Court
questioned the accused persons under Section 313 Cr.P.C. about the
incriminating evidence and circumstances. The accused denied all of
them and pleaded that they have been falsely implicated in the case. It
was their specific defence that the death of the baby was accidental.
6) Upon appreciation of the evidence presented by the
prosecution, the trial Court convicted and sentenced the Appellant for
commission of the offence punishable under Section 302 of the I.P.C.
Hence, this Appeal.
7) The Appellant has not disputed that, after the delivery,
PW-1 had come back to him alongwith the baby. That, the baby was
found in the Well on 29/10/2011 and he was dead.
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8) During the trial, the post-mortem report was admitted by
the defence. The post-mortem report mentions that there were no
ante-mortem injuries. But, post-mortem aquatic animals bite marks
noted on both the ears, around the mouth, nose, Lt eye, Rt forearm,
Rt elbow, Lt hand, scrotum, penis etc. The cause of the death of the
baby was asphyxia due to drowning. The baby was just one month
old. There was no reason for the sudden disappearance of the baby
and him falling in the Well. The post-mortem report does not give sign
of any bite mark by a wild animal. This has ruled out the possibility of
the baby being taken away by a wolf. It is, therefore, safe to conclude
that the baby was deliberately thrown in the Well, to cause his death.
Thus, the death of the baby was that of culpable homicide amounting
to murder.
9) The prosecution depended upon circumstantial evidence to
prove its case. According to the prosecution, the chain of following
circumstances has been proved which was sufficient to convict and
sentence the Appellant under Section 302 of I.P.C. :-
(i) Illicit relation between Appellant and Accused No.3.
(ii) PW-1 opposed the said relationship, therefore, she was
harassed by the Appellant and Accused No.2.
(iii) Conception of the third child by PW-1, which the
Appellant and Accused No.2 did not want. Therefore,
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they suggested PW-1 to abort the baby.
(iv) PW-1 went to her parents' house and delivered the baby.
(v) On 20/10/2011, PW-1 alongwith the baby returned to the
Appellant's house.
(vi) On 28/10/2011, in the night, PW-1 alongwith the baby
slept in the room and the Appellant slept outside, on a cot.
(vii) At about 5.30 a.m., PW-1 found that the Appellant was
not present on the cot and the baby was also missing.
(viii) Therefore, PW-1 cried. Hearing her cry, immediately, the
Appellant and Accused No.2 came there, from outside.
(ix) Appellant and Accused No.2 falsely stated to PW-1 that
the baby was taken away by a wolf.
(x) At that time the Appellant was having the said quilt which
PW-1 had spread on the baby.
(xi) The Appellant took a false and contradictory defence that
the death of the baby was accidental.
(xii) The confession by the Appellant and Accused No.2 that
they threw the baby in the Well as they did not want him.
10) PW-1 deposed that, her marriage was solemnized with the
Appellant 8 years prior to the incident. First, she gave birth to a male
child Mayur after one year of the marriage. At the time of the incident,
she was jointly residing with the Appellant at Ajanale and her both in-
laws were residing separately, near her house. PW-1 deposed that the
Appellant was ill-treating her. The Appellant had illicit relations with
Accused No.3. PW-1 deposed that after she became pregnant for the
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third time and carrying it for five months, the Appellant and Accused
No.2 were telling her at the instance of Accused No.3, that she should
not have the third child and she should abort the pregnancy. PW-1
deposed that, the Appellant and Accused No.2 were also threatening
her that if she gives birth to that child, they would kill it. However, she
did not abort the pregnancy and instead, she went to her parental
house at Mumbai and delivered the baby. After the delivery, she stayed
in Mumbai for 20 days and then she returned to the Appellant,
accompanied with her mother. At that time, the Appellant asked her as
why did she bring the baby and that, she should have handed over the
baby to someone else.
PW-1 deposed that in the night of the incident, she had put
the baby to sleep in a cradle and she slept inside the room. The
Appellant returned home at 00.30 hours. At that time, the Appellant
woke her up and told to make the baby sleep properly. Then, the
Appellant slept on a cot, outside the room. It was 01:30 hours. The
said room had no door.
PW-1 deposed that she woke up at about 5.30 a.m. and
went outside the room to help her daughter to answer nature's call.
When she came back, she noticed that neither the Appellant was on
the cot, nor the baby was in the cradle. Therefore, she cried. Hearing
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her cry, the Appellant and Accused No.2 came there alongwith the
quilt, from the room of Accused No.2. PW-1 deposed that it was the
same quilt made of a saree, which she had spread over the baby when
she last put him to sleep in the cradle. PW-1 deposed that she asked
them about the baby and as to how the quilt was with them. The
Appellant and Accused No.2 told her that the baby was taken away by
a wolf and that they would search for the baby in the morning. PW-1
deposed that, in the morning they searched for the baby. But the baby
was not found. She informed about the incident to her parents.
PW-1 deposed that on 29/10/2011, PW-4 came to her and
informed that the baby was lying in the Well of Mr. Maruti Patil. PW-1
deposed that she went to the Well. There was a pink T-shirt on the
body of the baby. She identified the baby from the T-shirt as she
herself had worn him the same. PW-1 deposed that, thereafter PW-4
filed the Report (Exh.83). PW-1 deposed that then she inquired with
the Appellant and Accused No.2. They told her that since she gave
birth to the baby though they did not want the third child and
therefore, they threw the baby in the Well. PW-1 deposed that at that
time, the Appellant and Accused No.2 had threatened her that if she
disclosed that fact to anyone, they would kill her. Therefore, she
maintained silence about the murder. PW-1 deposed that after the
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post-mortem of the baby, her parents and relatives came to her at
Ajanale. Her mental state was very disturbed. However, she recovered
after 2-3 days with medicines. Then, she filed the Report (Exh.64).
PW-1 identified the quilt (Art.A) discovered by the Appellant.
11) In her cross-examination, PW-1 admitted that after the
birth of her first child, she knew about the illicit relations between the
Appellant and Accused No.3. However, till this incident, she did not
lodge a report with the Police against the Appellant. PW-1 admitted
that prior to the incident her parents and brother were asking about
her well-being. She denied that at that time she told them that
everything was fine in her life. She admitted that she delivered all her
three children at her parental house. PW-1 admitted that she had
informed her brother and parents that the Appellant had told her not
have the third child and she should abort her pregnancy and that, if
she delivered the child, they would kill it. She admitted that hearing
the same, her parents felt serious. PW-1 admitted that neither they
called a meeting of respected persons in that regard nor they filed a
complaint to the Police about the said threat, including herself. She
admitted that having a son was a blessing. But, she denied that after
the delivery, the Appellant alongwith one Babu Vitekar had come to
Mumbai to see the baby. She admitted that she had told her parents
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that they should not send her back to her matrimonial house as there
was a danger to the life of the baby. She admitted that the Appellant
and others were searching for the baby. She admitted that she was in
the village Ajanale since 27/10/2011 to 01/11/2011. Her parents had
come to her village on 28/10/2011. They were with her till lodging
the Report (Exh.64).
PW-1 denied that the Appellant was out of the village of
Ajanale from 27/10/2011 to 29/10/2011. She admitted that initially,
the Police had inquired with her about the incident near the Well and
then in the hospital. She denied that, at that time, she told the Police
that the death of the baby was accidental. PW-1 admitted that she had
produced before the Police the case papers and prescriptions of her
illness.
12) PW-2 Ramchandra Vitekar deposed that after the marriage
of PW-1, she and the Appellant were jointly residing with the latter's
parents. PW-2 deposed that after the birth of the first child of PW-1,
the Appellant developed illicit relations with Accused No.3. PW-2
deposed that, therefore, he gave an understanding to the Appellant.
Thereafter, PW-1 delivered the daughter. PW-2 deposed that at that
time also, the Appellant was maintaining the said illicit relations. PW-
2 deposed that the Appellant was harassing PW-1 due to his illicit
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relations. PW-2 deposed that when PW-1 again became pregnant, the
Appellant told her to abort her pregnancy as the Appellant did not
want the third child. PW-2 deposed that the Appellant threatened
PW-1 that if she delivered the third child, he will kill it. PW-2 deposed
that, therefore, he took PW-1 to Mumbai when she was seven months
pregnant. PW-2 deposed that after the delivery, he brought PW-1
alongwith the baby to her in-laws on 20/10/2011 and returned. PW-2
deposed that on 28/10/2011, at about 11:00 a.m., he received a
phone call from the Appellant that a wolf had taken away the baby.
Therefore, he came to PW-1 at Ajanale but no one was present in the
house. Then he saw a crowd near the said Well. He went there and
saw the baby, inside the Well. PW-2 deposed that PW-4 informed the
said incident to the Police. The Police came there and took out the
baby, who was wearing a pink T-shirt. PW-2 deposed after the burial,
PW-1 disclosed him the entire incident that had occurred in the
relevant night. Thereafter, they went to the Police Station and PW-1
lodged the Report (Exh.64).
In the cross-examination, PW-2 admitted that after each
delivery, PW-1 went to reside with the Appellant. He admitted that
PW-1 cohabited with the Appellant till she delivered the baby. PW-2
admitted that he felt disheartened when he knew about the illicit
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relations between the Appellant and Accused No.3. He admitted that
he felt depressed when PW-1 informed him on the phone that the
Appellant does not want the third child. However, he did not file a
complaint in that regard. PW-2 admitted that PW-1 or his relatives did
not suggest him not to send PW-1 and her new born to the Appellant,
as there was a threat to their life. PW-2 admitted that he was with
PW-1 till the statement of PW-1 was recorded. PW-2 admitted that
between 28/10/2011 and 30/10/2011 there was no discussion
between him and PW-1 about filing of the Report against the accused.
PW-2 volunteered that, during that period, PW-1 was continuously
crying and her mental state was not stable, therefore, there was no
discussion. PW-2 admitted that no treatment was taken for her said
condition. PW-2 admitted that PW-1 had filed a case for maintenance,
against the Appellant. PW-2 denied that he deposed falsely to support
PW-1.
13) PW-4 Laxman Yelpale deposed that, on 28/10/2011 in the
morning, PW-1 and the Appellant met him. PW-1 informed him that
the baby was missing. PW-4 deposed that the baby was found inside
the Well. On 29/10/2011, he filed the Report (Exh.83) thereof.
In the cross-examination, PW-4 admitted that, the houses
of Maruti Patil, Raju Patil, Arun Patil and Kaka Karade were situated
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near the Well. He admitted that he was searching for the baby
alongwith the Appellant. He admitted that the Appellant used to do
labour work of carrying pomegranate boxes. He admitted that, on
27/10/2011, the Appellant met him and told that he has to go out of
the village for some work.
14) PW-3 Arun Yelpale deposed that on 29/10/2011 the Police
called him to act as a panch near the said Well. The Well was about 30
feet deep with 2 to 4 feet of water. PW-3 deposed that the baby was
lying in the Well. There, Police drew the Spot Panchnama (Exh.79) in
his presence.
In the cross-examination, PW-3 admitted that the Police
did not summon him in writing. The distance between his house and
the Well was 1 km. There were residential houses near the Well. He
denied that he deposed falsely that the Panchnama (Exh.79) was
prepared in his presence.
15) PW-8 Ganpati Mangale- the Investigating Officer testified
that pursuant to the Report (Exh.83) filed by PW-4, Police Head
Constable Mr. Patil, recorded the Spot Panchnama (Exh.79) and
Inquest Panchnama (Exh.103). Further investigation was marked to
him. PW-8 deposed that the baby died due to drowning. Pursuant to
the Report (Exh.64), he recorded the Spot Panchnama (Exh.97) at the
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house of PW-1. PW-8 deposed that on 05/11/2011, while in Police
custody, the Appellant gave a voluntary disclosure (Exh.98) that he
would produce the quilt (Article-A) concealed by him, which was
wrapped around the baby. He recorded that disclosure in the presence
of the panchas. PW-8 deposed that thereafter, the Appellant led the
Police and the panchas to the agricultural land in Block No.549/1/B
and discovered the quilt (Article-A) from a pomegranate tree. He
seized that quilt and recorded the Discovery Panchanama (Exh.99) in
the presence of the panchas. PW-8 identified the quilt. PW-8 deposed
that he recorded the statements of witnesses. He effected the log book
entry (Exh.100) in respect of the visit to the spot. On completion of
investigation, he submitted the charge-sheet.
In the cross-examination, PW-8 admitted that initially he
felt that this was a case of an accident. He personally did not record
the statements of PW-1 and her parents between 28/10/2011 to
30/10/2011. He does not know whether PW-1 took any treatment
from a doctor, during the said period. He admitted that no document
transpired in his investigation in that regard. He denied that he
deposed false that on 05/11/2011, the Appellant gave the Disclosure
Statement (Exh.98), discovered the quilt and he recorded the
Discovery Panchnama (Exh.99). He denied that he submitted a false
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charge-sheet against the accused.
16) Mr. Khot, learned counsel for the Appellant made the
following submissions :-
(a) That, the evidence of PW-1 and PW-2 indicate
that since the marriage, the Appellant nicely treated PW-1.
After each delivery, PW-1 and her new born were sent to
the Appellant. Therefore, PW-1 did not file any complaint
against the Appellant or his parents.
(b) That, the evidence as to the alleged illicit
relationship is vague as neither the witnesses described
that relationship nor stated any instance thereof. Said
evidence is also inconsistent.
(c) That, despite PW-1 was threatened by the
Appellant and Accused No.2 that they would kill the baby,
if born, PW-1 or PW-2 did not file any Police complaint nor
had any meeting of their relatives. As such, it is false that
the Appellant had threatened, as above. In view thereof,
no motive was ascribable to the Appellant to commit the
murder.
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(d) That, the evidence of PW-1 and PW-4 clearly
indicate that, since the morning of 27/10/2011, the
Appellant was out of the village for his work. There were
three accused in the case and PW-1 had grudge against all
of them. The room had no door. Therefore, the possibility
of committing the offence by the other accused cannot be
ruled out.
(e) That, the extra-judicial confession deposed to
by PW-1 is in a chorus form, meaning, it was not
specifically attributed to the Appellant or Accused No.2. As
such, the extra-judicial confession is neither proved and
nor admissible.
(f) That the discovery of the cloth at the instance
of the Appellant is not proved because both the panchas to
the alleged Disclosure Statement and discovery, turned
hostile.
(g) That, PW-1 has not complained about the
threatening to kill her, when the Police were present near
the Well and in the hospital. The parents of PW-1 were
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with her since 28/10/2011. However, she did not disclose
them the incident.
(h) That, there is no documentary evidence that
the mental condition of PW-1 was disturbed due to the
incident and she took the medical treatment. On the
contrary, the evidence of PW-2 indicates that PW-1 had not
taken such treatment. However, the Report (Exh.64) was
not promptly lodged. No plausible explanation for the
delayed F.I.R. has been forthcoming, which creates a
doubt.
Thus, according to Mr. Khot, the prosecution has failed to
prove the chain of the evidence, leading to an unerring conclusion
that except the Appellant no other person had murdered the baby. He,
therefore, urged to acquit the Appellant giving him the benefit of said
doubt.
17) Ms. Mulekar, the learned APP, on the other hand,
submitted that there is consistent evidence by PW-1 and PW-2 that the
Appellant had illicit relationship with Accused No.3. Therefore, PW-1
was harassed by the Appellant. PW-1 has categorically deposed that,
soon after revelation of the third pregnancy, the Appellant and
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Accused No.2 questioned PW-1 for carrying the pregnancy and forced
her to abort, which she did not. Therefore, the Appellant and Accused
No.2 developed grudge against PW-1. She submitted that, after
delivery of the baby, within one month, PW-1 returned to the
Appellant on 20/10/2011, alongwith the baby. Thereafter, within
eight days the baby was found dead in the Well. She submitted that on
the night of the incident, only PW-1 and the Appellant were present at
their house. Since PW-1 did not abort the baby, no question arises of
PW-1 killing her own baby. She submitted that only the Appellant was
aware that the baby was in the room. There is no challenge to the
evidence of PW-1 that after the Appellant returned home, she slept
alongwith the baby at about 01:30 a.m. and thereafter, within a short
period of time, the baby was found missing. Soon thereafter, the
Appellant and Accused No.2 came to the room from outside. Then, the
two falsely told PW-1 that a wolf had taken away the baby, although
there was no sign of such accident. Subsequently, the baby was found
dead in the Well, which was situated near the room of PW-1. As such,
the conclusion was inescapable that only the Appellant has committed
the murder of the baby. She submitted that, the discovery of the quilt
(Article-A) corroborates the testimony of PW-1. Besides that, the
Appellant has confessed the crime before PW-1. Lastly, she submitted
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that the Appellant's false defence of an accidental death of the baby
has provided an additional link to the evidence. As such, the trial
Court rightly held the Appellant guilty of the offence punishable under
Section 302 of I.P.C.
18) We have carefully gone through the prosecution evidence
and given our anxious consideration to the rival submissions.
19) On appraisal of the prosecution evidence, we found that,
the cross-examination of the material witnesses was innocuous. PW-1
and PW-2 have specifically deposed that the Appellant was harassing
PW-1. That, the Appellant had illicit relationship with Accused No.3.
PW-2 deposed that, therefore, he gave an understanding to the
Appellant. However, it could not bring any change in the behaviour of
Appellant. PW-1 specifically stated that when she became pregnant for
the third time, and the pregnancy was of five months, the Appellant
and Accused No.2 were telling her not to have the third child and they
should abort the pregnancy. The Appellant and Accused No.2 were
also threatening PW-1 that if she gives birth to that child, they would
kill it. The aforesaid evidence is supported with the Report (Exh.64).
20) The evidence of PW-1 and PW-2 clearly indicate that after
delivering the baby, PW-1 alongwith the baby were brought to the
Appellant's house on 20/10/2011. That, in the intervening night
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of 27/10/2011 and 28/10/2011, at about 00:30 hours the Appellant
returned home. At that time, he said PW-1 to make the baby sleep
properly. Therefore, PW-1 spread the quilt (Article-A) over the baby
and slept him in cradle. At about 01:30 hours, PW-1 and the baby
were sleeping inside the room. The Appellant was sleeping on a cot,
outside. This entire evidence is very natural and supported by the
Report (Exh.64).
21) PW-1 has categorically deposed that the said room had no
door. As such, taking away the baby was easily possible, when PW-1
was sleeping. And that exactly happened in the meanwhile, when
PW-1 woke up at about 05.30 a.m. and found the baby missing. It is
significant to note that, at that very juncture, the Appellant was not
present on his cot and he alongwith Accused No.2 came to PW-1 from
the room of Accused No.2 when PW-1 cried for the missing baby.
However, the Appellant did not explain as to where he had gone in the
meantime and why Accused No.2 was with him. That apart, instead of
alerting the neighbouring people on seeing the wolf taking the baby
away, and searching for the baby, the Appellant persuaded PW-1 not to
cry and keep quiet, assuring her that they would search for the baby
after the sunrise. But the sunrise was not far and was to happen in an
hour or two. This was completely unnatural of the two. In fact, the
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predicament of the Appellant was so self-embarrassing, that he put
forward the ostensible wolf story.
22) PW-1 clearly deposed that she had spread the quilt
(Article-A) over the baby. The same quilt Appellant and Accused No.2
carried, when they attended PW-1 on hearing her cry. However, the
Appellant has not offered any satisfactory explanation as to how he
came into possession of the quilt or where did he find it in the night
without any light, if indeed, the baby was taken away by wolf.
23) Admittedly, the baby was found in the Well, and his death
was homicidal, as held above. The Spot Panchanama (Exh.97) clearly
recorded that the said Well was at the distance of 700 feet from the
room of the couple. Only the Appellant and Accused No.2 were
against the pregnancy of PW-1. Not only that, even the Appellant had
threatened to kill the baby, if born. Additionally, we noticed that even
after the birth of the baby, the Appellant was not ready to accept him
despite he was also equally responsible for the baby's appearance in
this world. The baby had disappeared from the room within 3-4 hours
after PW-1 and the Appellant slept. Only Appellant was not present on
the cot when the baby was found missing from the cradle. The
discovery of the quilt (Article-A) at the instance of the Appellant has
strongly corroborated the version of PW-1 about the incident. In the
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backdrop, the conclusion is inevitable that since the Appellant did not
want the third child, he only removed the baby from the cradle and
threw him in the Well.
24) One more important aspect of the case is that, when the
baby was removed from the Well, the falsity of the Appellant came to
fore. Therefore, when PW-1 again inquired with the Appellant, he
blatantly confessed to her that as she had given birth to the baby
against his will, he threw the baby in the Well. This evidence of PW-1
has been strengthened by the Report (Exh.64). Further, the Appellant
threatened PW-1 to kill her if she disclosed the murder to anyone.
Therefore, PW-1 kept silent. But finally, she filed the Report (Exh.64)
on 01/11/2011. Thus, the extra-judicial confession of the Appellant
has cemented our conclusion above that the Appellant committed the
murder of the baby.
25) In view of Section 106 of the Indian Evidence Act, there
will be a corresponding burden on the inmates of the house to give
cogent explanation as to how the crime was committed. The inmates
of the house cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to establish its
case lies entirely upon the prosecution and there is no duty at all on
the accused to offer any explanation. The learned APP rightly
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submitted that since PW-1 did not abort the baby, no question arises of
PW-1 killing her own baby. As such, when the Appellant was sleeping
outside the room, and suddenly he disappeared from the cot, it was
for the Appellant to offer an explanation as to how, all of a sudden,
the baby had also gone missing around the same time. In this
situation, failure of the Appellant to explain the homicidal death of his
own infant and innocent child, is a strong circumstance against him
that he is responsible for the commission of the crime.
26) Mr. Khot, learned counsel pointed some inconsistency in
the evidence of PW-1 and PW-2 compared with her Report (Exh.64).
He also invited our attention towards some omissions in the evidence
of PW-1. The omissions are minimum and trifle, therefore, those are
eschewed from consideration.
27) Much has been argued by Mr. Khot about the delay in
filing the Report (Exh.64) and to accept the defence of the Appellant
on that account. Normally, delay in setting the law into motion by
lodging a Report and registration of F.I.R. is viewed by courts with
suspicion because there is possibility of concoction and embellishment
of the occurrence. As such, the prosecution should explain the delay,
satisfactorily. The prompt lodging of the Report helps to know the
nature of the incident, get the names of witnesses, who was the
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perpetrator and how the crime was committed.
In the case at hand, the small delay of 2-3 days between
the time of the occurrence of the incident and in registration of the
F.I.R. has been well explained by PW-1 in her Report (Exh.64) and the
evidence. Moreover, looking at the facts of the case, such a delay is
natural as PW-1 and her two children were depending on the
shoulders of the Appellant. Therefore, PW-1 needed some time to
make up her mind and develop the courage to file the Report against
her close one. Moreover, said delay is not sufficient to rate the
prosecution story as false and to accept the defence version.
28) Mr. Khot submitted that the evidence against the acquitted
Accused No.2 was of equal standard and effect. Yet, according to us,
the Appellant cannot derive any benefit from the said circumstance.
Because, at least, Accused No.2 was not present when PW-1 had kept
the baby in the cradle nor Accused No.2 hid and discovered the quilt.
Moreover, no Appeal has been preferred against the said acquittal.
29) The upshot of the aforesaid discussion is that, on careful
scrutiny and re-appreciation of the evidence on record in the light of
the settled principle of law, we are of the considered view that the
prosecution has proved the complete chain of all the circumstances
leading to the only hypothesis that, except the Appellant, no other
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person has removed the baby from the cradle and committed the
murder by throwing the baby in the Well. No reasonable doubt lingers
with respect to the probability or conclusiveness of the circumstance
relied on by the prosecution, forming a link in the chain of
circumstances pointing to the guilt of the Appellant. No two views are
possible from the evidence on record, one of which could favour the
Appellant. As such, the conviction and sentence handed over to the
Appellant is justifiable, and it need not be interfered with. As a result,
the Appeal is liable to be dismissed. Appeal is accordingly dismissed.
30) With the disposal of the Appeal, the pending Application is
also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
PREETI
HEERO
JAYANI
