Criminal Appeal No.336 of 2003

24th November, 2014.

Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mr T.A. MIRZA

Cases Cited:
Sharad Birdhichand Sarda Vs. State of Maharashtra, 2009 ALL SCR (O.C.C.) 281=AIR 1984 SC 1622 [Para 20]

JUDGMENT

V.M. DESHPANDE, J. :- The appellant is convicted of the charge of filicide by learned 2nd Addl. Sessions Judge, Chandrapur on 9th May, 2003 in Sessions Trial No. 148/2001 and was directed to suffer imprisonment for life and to pay a fine of Rs.1,000/- and, in default, to suffer rigorous imprisonment for three months.

2. It is to be mentioned here that along side the appellant, her husband-Gajanan was also charged for offence punishable under Section 109 read with Section 302 of the Indian Penal Code by learned Session Judge; however, he was acquitted by the said judgment.

3. The prosecution case as it is unfurled during the course of the trial, can be narrated herein-below :

The appellant was married with Gajanan on 6.5.2001. She came in the dispensary of Dr. Shrikant Nagmoti (PW 5) on 22.6.2001 to show her health. She disclosed to Dr. Shrikant that she has missed her menstrual cycle since about one and half month. Dr.Shrikant examined her per abdomen at which he found that size of her abdomen was quite big and estimated that the foetus in womb might be twenty weeks old and, as such, he advised her to do sonography. He issued a prescription letter to her which is at Exh.50.

4. PW 6-Dr. Vishram Nakade is an Radiologist. He runs an X-ray and Ultrasound Clinic at Bramhapuri. On being referred by Dr. Shrikant Nagmoti, the appellant-Kavita came to his Clinic. On 3.7.2001, he did sonography test at the womb of Kavita. He issued the report Exh. 52. According to said report, the age of the foetus was about 22 weeks. He handed over the report of sonogrpahy film to Kavita.

After sonography, Kavita again came to the Clinic of Dr. Shrikant on 4.7.2001 along with her husband-Gajanan.

5. PW 3-Dr. Kishor Jiwane and his wife PW 4 - Dr. Saroj Jiwane runs a Hospital in Bramhapuri town under the name and style "Dr. Jiwane Maternity and Nursing Home". PW 4-Saroj Jiwane is a Gynaecologist.

On 4.10.2001, the appellant along with her husband came to the said Nursing Home having labour pains. Dr.Saroj Jiwane performed the delivery on Kavita on 4.10.2001 at 1.15 p.m. The delivery was safe and the child was hale and hearty.

On 7.10.2001 at about 8.00 a.m., sister Khushali Kumare (PW 7) gave a message to Dr .Saroj Jiwane that the child of Kavita was not making any movement. Since that time, Dr. Saroj was busy in her domestic chores, PW 3 Dr. Kishor Jiwane attended and examined the child. Dr. Kishor Jiwane told Dr. Saroj that the child was not breathing and, therefore, she came down from her house located upstairs and examined the child.

6. Since it was a sudden death, Dr. Kishor Jiwane lodged a report under his signature with Police Station Bramhapuri (Exh.43). He also issued medical certificate in his own handwriting (Exh.44).

7. Sunil Uike (PW 9) was posted to Police Station Brahmapuri as P.S.I. On 7.10.2001 Dr. Kishor Jiwane came to Police Station and lodged report (Exh.43) that a newly born baby of Kavita died in suspicious circumstance. On its basis, an A.D. report No. 36/2001 was registered by ASI Pandhari Sahare who entrusted the papers for further investigation to Sunil Uike. In pursuance to the said, Sunil Uike went to the spot of the incident and prepared Inquest Panchnama (Exh.41) and also the Spot Panchnama (Exh. 59). He sent the dead body of deceased baby for its post-mortem examination He registered an offence punishable u/s. 302 r/ws. 109 of the IPC against Kavita and her husband. Thereafter, the investigation was entrusted to Nilesh Raut (PW 10). On 14.10.2001 he arrested the couple. After completion of investigation, it was found by Nilesh Raut that there appears strong evidence against the accused persons and, therefore, charge-sheet was filed in the Court of law.

8. Since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Clas Brahmapuri passed the order of committal and committed the case to the Sessions Court. After it being committed to the Court of Sessions, it came to be registered as Sessions Trial No. 148/2001.

The learned 2nd Additional Sessions Judge, Chandrapur framed charge u/s 302 of the IPC against the appellant and an offence and charge for the offence punishable u/s. 109 r/ws. Section 302 IPC against Gajanan, husband of Kavita.

The appellant/accused denied the charge and claimed to be tried.

9. In order to bring home the guilt of the accused persons the prosecution, during trial, examined as many as eleven witnesses and also relied upon various documents. After a full-dressed trial, the learned Judge of the Court below acquitted Gajanan (husband), however, convicted the appellant. Hence the present Appeal.

10. We have heard Shri R.M.Daga, learned counsel for the appellant and Mr.T.A. Mirza, learned Addl. Public Prosecutor for the respondent-State in extenso. With the able assistance of both the learned counsel, we have gone through the entire record and proceedings, in order to reappreciate the entire prosecution case.

11. Basically, learned counsel for the appellant made two submissions: (a) that the prosecution has utterly failed to prove the nature of the death of new born baby as homicidal one and; (b) there is no positive evidence to show that it is only the appellant who can be held guilty for the unnatural death of her new born baby. Per contra, learned Additional Public Prosecutor, with his usual vehemence, submitted that the prosecution has established that the nature of the death of baby was homicidal one and, as such, the learned Court below has correctly reached to the conclusion that it is only the appellant can be held guilty for such a death.

12. In view of the rival submissions, the first point that arises for consideration of this Court is, what is the nature of the death - whether it is homicidal one or whether the death was natural?

13. In order to buttress the point of death of homicidal one, the learned Addl.P.P. has relied upon the post-mortem report which shows the following two injuries :

1) Abrasion mark about ¾ cm x ½ cm horizontal in direction over lateral aspect of neck on left side above thyroid cartilage.

2) Two (2) contusion marks of size ¾ cm ½ cm vertical in direction present on the right side of neck above thyroid cartilage.

He also submitted that the cause of death, according to the Doctor who performed the post mortem, is due to cardio respiratory arrest, secondary to 'asphyxia'.

14. Undisputedly, appellantKavita delivered a child on 4.10.2001 and her baby was found to be dead on 7.10.2001 in Jiwane Nursing Home. According to Dr. Saroj Jiwane, there was no problem to the infant and till last the baby was in a good health She has lastly examined the baby between 6.00 and 7.00 p.m. on 6.10.2001. She has admitted that by 6.10.2001 mild winter was already set. She has admitted in her evidence that during the winter season an infant may be infected with pneumonia and which could be fatal to an infant child.

15. Let us examine the evidence of Dr. Seema Agrawal (PW 11) who performed the autopsy over the dead body of the child. In her cross-examination, she has stated as under:

"While conducting post-mortem examination I take rough notes. In this case also I had taken rough notes. However, I have not brought them to the court".

The post mortem report is at (Exh.87). It is in printed profrma. The printed proforma is filled in by the doctor in her handwriting. Now when Dr. Seema Agrawal has taken rough notes, while conducting the post mortem, the said notes became the primary evidence; whereas filling up of the printed proforma is a ministerial act. Obviously, the ministerial act has been done on the basis of the primary material i.e. the notes taken by Dr.Seema at the time of conducting post-mortem. This primary evidence is not brought before the Court.

16. Apart from that, Dr.Seema has admitted the following in her evidence :

"(i) It is true to say that I am unable to opine about the age of the said injury;

(ii) It is true to say that this injury might have been received about 24 to 30 hours before PM examination;

(iii) The injury of abrasion mentioned in Column No.17 could be caused, in my opinion, even due to nail scratching of the baby;

(iv) It is correct to say that as colour of the contusion is not mentioned in the column No.17, I am unable to give my opinion about the age of the said injury.

(v) It is possible that said contusion might have been caused about 24 to 30 hours before the P.M. Examination;

(vi) It is true to say that I am unable to say as to by what means said contention was caused;

(vii) Such contusion in circumstances may cause death and in certain circumstances not."

17. Exh. 87 would reveal that the postmortem was started on 7.10.2001 at 5.00 p.m. According to the evidence of PW 4-Dr Saroj Jiwane and PW 7-Khushali Kumare, the Nurse, who was attending the appellant and her baby, post natal, found that on 7.10.2001 at about 7.00 a.m. Kavita was on bed and the baby was crying. Thus, it is clear that at 7.00 a.m. On 7.10.2001 the baby was alive. In that view of the matter, it is absolutely clear that in view of the age of the injury given by the Doctor who has performed the post-mortem, those injuries were even prior to death of the baby.

18. Dr. Kishor Jiwane (PW 3) has deposed that the baby was administered the medicine 'Gentamycin'. His evidence would reveal that Dr. Kishor was not sure whether the child was suffering from any ailment or not. However. Dr. Kishor is very specific that the medicine 'Gentamycin' given for pneumonia.

Further, Exh.45 - a letter to the Police Station Officer Bramhapuri in response to the letter given to him by Police Officer dated 16.10.2001 recites as under :

"On 6.10.2001 slight yellowishness was observed in the eyes of new born girl baby. For that when her blood test was advised that time there was no relative present near the baby."

Dr. Saroj Jiwane is not sure as to whether the baby was suffering from jaundice or not. However she was candid in deposing that if the baby is affected with jaundice the baby may die. She has also admitted in her evidence that the case papers of the baby are available in her hospital at Bramhapuri. However those were not brought along with her at the time of her evidence.

From the aforesaid, it is clear that it was noticed on 6.10.2001 the yellowness in the eyes of the new born baby. Since the Doctor suspected something, therefore, the Doctor thought it fit to do blood test which unfortunately could not be done. Further, Dr. Saroj Jiwane is unsure as to whether the baby was suffering from jaundice or not.

19. It is to be observed further that at the time of conducting inquest, it was noticed that from the nostrils white froth was being discharged. Even PW 11-Dr. Seema who has conducted the post-mortem, has also noticed at the time of post-mortem has also noticed the frothy liquid from the nostrils.

In this backdrop, the following admission by Dr. Seema assumes importance:

"It is true to say that the death of the said baby was caused due to failure of respiratory system first. Such failure might have been caused due to some obstacles in the nose."

From the aforesaid circumstances and facts which are appearing in the prosecution case, it is absolutely clear that, with confidence, the prosecution cannot state that the death was homicidal one inasmuch as the possibility of the natural death is not completely ruled out.

20. The other factor is that in the present case there is no eye witness account. The entire case was based on the circumstances. Time and again, it has been ruled that the case which is completely based on circumstantial evidence, in such cases, motive assumes importance. In the present case, the prosecution has utterly failed to attribute any motive. In that behalf, the learned Judge of the Court below while convicting the appellant, has observed in paragraph 22 of the judgment as under :

"Due to such conception prior to her marriage, there is a possibility that Kavita may have committed the crime."

The aforesaid observations of the learned Judge of the Court below are in clear breach of the five golden principles laid down by the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra: AIR 1984 SC 1622 : [2009 ALL SCR (O.C.C.) 281].

Further, the baby was found to be dead in the hospital. It was not in the exclusive domain of the appellant. Moreover, the evidence of PW 7-Khushali, Nurse, in order to attribute the act of committing something by the present appellant to her baby if closely examined, does not inspire any confidence.

21. In that view of the matter, we are of the firm view that the appellant cannot be convicted on such evidence appearing in the prosecution case. Hence we pass the following order:

ORDER:

The Criminal Appeal is allowed.

The order of conviction and sentence passed by the 2nd Additional Sessions Judge, Chandrpaur dated 9.5.2003 in Sessions Case No.148/01 against the appellant is set aside.

The appellant is directed to be set at liberty forthwith, if not required in connection with any other case.

Fine amount if paid, be refunded to appellant.

Bail bonds of the appellant shall stand cancelled.

Appeal allowed.