1. The appellant, in this appeal, challenges the Judgment and order of conviction, passed by the learned District Judge-1 and Additional Sessions Judge Ahmednagar in Sessions Case No.8/2008. The appellant, has been convicted for the offence punishable Under Section 302 of Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/- in default to suffer further rigorous imprisonment for six months. This Judgment and order of conviction, is passed by the Learned Additional Sessions Judge Ahmednagar on October 18, 2008.
2. The facts in brief, necessary for consideration of submissions on behalf of the parties, are listed herein below :- (a) The appellant was the original accused. The appellant, is resident of Wadarwadi, Shevgaon District Ahmednagar. The appellant was married to Sangita approximately five years before the incident. The appellant and his wife Sangita were blessed with two children. Gaurav, was around four years old, whereas Aishwarya was two and half years old at the relevant time.
(b) According to prosecution case Sangita after marriage, resumed cohabitation at Wadarwadi, Shevgaon Taluka Shevgaon District Ahmednagar.
(c) Marital life of appellant and Sangita was sailing smooth for about five years. After birth of Aishwarya, the appellant started feeling betrayal. According to prosecution he was labouring under the impression that Aishwarya is fathered by some other person. Thus he carried the impression that his wife Sangita was fealer.
(d) On the ground of or suspicion of alleged infiledity of wife Sangita, accused started beating Sangita. He threatened Sangita that he will kill Aishwarya.
(e) The prosecution also alleged that one month prior to the date of incident, there was quarrel amongst appellant and Sangita. This quarrel constrained Sangita to leave matrimonial house alongwith two children i.e. Gaurav and Aishwarya.
(f) On 8th June 2007, at about 10.00 a.m. , the appellant paid visit to parents of P.W.No.1 Sangita. It was around 10.00 a.m. According to prosecution at that time Sangita, her two children, mother Laxmibai, aunt Sumanbai and her brother Navnath were present at house. Appellant picked up quarrel with Sangita, abused her and snatched Aishwarya from Sangita. The appellant told her that he will take Aishwarya to his house at Wadarwadi Shevgaon. Sangita was not willing. However custody of Aishwarya was taken perforce by appellant who left Wadarwadi Barabhali Ahmednagar i.e. place of residence of parents of Sangita.
(g) On 9th June 2007 at about 11.00 a.m. there was a rumour in village Bhingar, in a nearby vicinity of Barabhali that dead body of female child was found floating in the Grampanchayat well of Barabhali.
(h) According to prosecution inquiry was made by the police personnel of Bhingar Camp Police Station and they found a dead body of two and half year old in the well. Dead body was donned with yellow colour frock.
(i) Sangita after perceiving the fact of dead body in the well water, went to the police station alongwith others. Sangita and others were advised by the police personnel to go to the Civil Hospital Ahmednagar for identification.
(j ) Dead body of Aishwarya was identified in mortuary of the Civil Hospital, by P.W.No.1 Sangita and others.
(k) Post mortem on the dead body of Aishwarya was conducted, funeral was performed.
(l) Sangita after funeral went to Bhingar camp police station and lodged the report (Exh.10).
(m) Based on first information report Crime No.I- 88/2007 Under Section 302 and 201 of Indian Penal Code was registered. Thus criminal law set in motion.
3. Crime No.I-88/2007 was investigated, appellant accused was arrested, produced before the Learned Judicial Magistrate First Class. After completion of the investigation chargesheet was filed against the appellant for the offence Under Section 302 and 201 of Indian Penal Code in the Court of Learned Judicial Magistrate First Class, Ahmednagar.
4. The Learned Judicial Magistrate First Class committed case to the Court of Sessions for offence being exclusively triable by the Court of Sessions.
5. The learned trial Court framed charge Under Section 302 against the appellant at Exh.4. Charge was explained to the appellant who denied the same and claimed to be tried.
6. We have perused the judgment of the trial Court. Indisputably there is no eye witness account brought on record by the prosecution. The case of the prosecution is based on circumstantial evidence. In para no.13 of the judgment, the trial Court has listed following circumstances:-
(1) Due to quarrel with the accused, since one month prior to the incident, Sangita was residing at the house of her parents in Wadarwadi, Bhingar.
(2) Accused used to beat and suspect character of Sangita and used to say that Aishwarya is not begotten to her from him and also used to threaten Sangita to kill Aishwarya.
(3) On the day of incident i.e. on 8/6/2007 at about 10.00 a.m. accused came to the house of mother of Sangita and took away / snatched Aishwarya from Sangita and went towards village Barabhali alongwith Aishwarya.
(4) At about 1.30 to 2.00 p.m. accused Raju alone returned to the house.
(5) The dead body of a girl aged about 2 1/2 years having yellow colour frock was found in the well. The trial Court, on consideration of the material available on record, held that circumstances noticed by it are established. The trial Court has observed that Medical Officer is not examined in the case. The trial Court was of the opinion that post mortem notes are admitted by the accused. The trial Court has recorded the motive behind homicidal death of Aishwarya. With this the trial Court proceeded to convict the appellant /accused for commission of murder of Aishwarya.
7. After giving due consideration to the submission of the counsel and evidence on record, in our opinion, following are the circumstances brought on record by the prosecution.
(a) There was marital discord amongst appellant and Sangita (P.W.No.1). Reason for such discord was alleged infidelity of Sangita.
(b) Before one month of the incident there was quarrel amongst appellant and Sangita which resulted into leaving of matrimonial home by Sangita with her children Gaurav and Aishwarya.
(c) Estranged P.W.No.1 Sangita was residing with her parents house at Barababhali Ahmednagar with children Gaurav and Aishwarya.
(d) From 8th of June 2007 at about 10.00 a.m. the appellant had been to the house of parents of P.W.No.1 Sangita, abused her and took away Aishwarya perforce, despite resistance by P.W.No.1 Sangita.
(e) On 8th June 2007 at around 1.30 to 2.00 p.m. the appellant had returned to house of parents of P.W.No.1 Sangita alone ( without Aishwarya) (f ) Dead body of two years old girl, donned with yellow colour frock was noticed floating in well water of Grampanchayat well on 9th of June 2007.
8. The learned Assistant Public Prosecutor claimed sufficient evidence on record to show homicidal death of Aishwarya. Advocate for the appellant submitted that it is the case of accidental death. We have considered this submission. The evidence on record shows that distance in between house of parents of P.W.No.1 and Grampanchayat well at Barababhali is around two kilometres. Scene of offence panchanama Exh.24 and oral evidence of panch witness shows that parapet wall was in existence to the well in question. There is no material on record to infer that small girl of two and half years old would go to the well in question after travelling two kilometres distance. Possibility of accidental death of Aishwarya i.e. her fall in Grampanchayat well is thus rules out. Post mortem notes Exh.19 was offered Under Section 294 of Criminal Procedure Code. Appellant gave no objection. Post mortem notes, have been properly exhibited and could be read in evidence without oral evidence of Forensic Surgeon who performed autopsy on the dead body of Aishwarya. We have perused Exh.19, post mortem notes. We are satisfied that it is the case of homicidal death.
9. On behalf of the prosecution, seven witnesses were examined, P.W.No.1 (Exh.9) is the complainant, evidence of P.W.2 Raosaheb Waghaskar is at (Exh.11), P.W.2 Waghaskar is the resident of village Barababhali. Accoring to him on 8 th of June 2007 he learnt from villagers that the dead body of girl is floating in Grampanchayat well water. He has seen the dead body donned with a yellow colour frock. He went to the Bhingar camp police station and filed written report Exh.12. Based on this report A.D.No.30/2007 was registered by the police officer concerned. P.W.No.4 is evidence of panch witness Mr.Jivan Nidhane. Yellow colour frock on the dead body of Aishwarya was seized in the presence of P.W.No.4 Nidhane. Police Inspector Bhojane is the investigating officer, another panch witness P.W.No.6 Mr. Amit Zodge is a panch witness of inquest panchanama. Spot panchanama in the presence of P.W.No.7 Bhanudas Kawade was drawn by the police officer concerned.
10. Amongst seven witnesses examined on behalf of the prosecution evidence of P.W.No.1 Sangita, P.W.No.3 Navnath and post mortem notes placed on record is the material evidence adduced on behalf of the prosecution.
11. Mr.V.N.Lomte learned Amicus Curiae for the appellant submitted that evidence of P.W.No.1 Sangita and P.W.No.3 Navnath, her brother is contradictory. According to him conviction recorded by the trial Court against the appellant is per-se illegal. He criticised the evidence of these two witnesses. Learned Assistant Public Prosecutor drew our attention to the evidence on record. According to him evidence of P.W.No.1 Sangita is important. On account of quarrel / dispute amongst appellant and his wife Sangita, Sangita had left matrimonial house alongwith Gaurav and Aishwarya before one month prior to the incident and was residing with her parents. Custody of deceased Aishwarya was taken by appellant forcibly and thereafter Aishwarya was not seen.The dead body of Aishwarya floating in well water on the same date i.e. 8 th of June 2007 was seen. According to him evidence of P.W.No.1 Sangita has been corroborated by the evidence of P.W.No.3 Navnath and post mortem report. Offence of murder of Aishwarya by appellant is proved beyond reasonable doubt. He supported the judgment of the trial Court.
12. We have seen the F.I.R. (Exh.10) from the record and proceedings which is dated 9th of June 2007. Grievance is raised in this report by P.W.No.1 Sangita that appellant was suspecting her character. Appellant was disowning paternity of Aishwarya. Appellant beat her. Before one month of the incident she was beaten by the appellant and was constrained to leave the matrimony with her two children Gaurav and Aishwarya. In this first information report (F.I.R.) she also alleges that on 8th of June 2007 at about 10.00 a.m. she was at her parents place alongwith her mother Laxmibai, aunt Sumanbai and brother Navnath. Appellant, her husband, visited the house of her parents, scolded her and demanded custody of daughter Aishwarya. On the pretext of taking her to his mother at Shevgaon. He forcibly took away Aishwarya. She followed him up till road. The appellant succeeded in taking away Aishwarya from her custody. She disclosed this fact to her mother. She thought that her daughter might have been taken by appellant to his mother at Shevgaon. Thereafter she has stated in this complaint, source of her knowledge regarding dead body of small girl found floating in Grampanchayat well water. She along with her mother and aunt Suman made inquiry, noticed yellow colour frock, went to the Civil Hospital, identified the dead body of Aishwarya and thereafter lodged this report Exh.10.
13. With the assistance of the cousel for the parties we have seen the oral evidence of P.W.No.1 Sangita (Exh.9) . The substantive evidence of P.W.No.1 Sangita corroborates the F.I.R. at Exh.10. From evidence it reveals that she was married to appellant around 7 to 8 years prior to her evidence before the trial Court. Suspicion which was cropped up in the mind of appellant according to her, was regarding her alleged infidelity. She has also testified that she was residing with her parents place before one month of the incident alongwith her children. From her evidence it is clear that appellant took perforce custody of Aishwarya on 8th of June 2007 from her at around 10.00 a.m. and thereafter Aishwarya could not be seen alive. She has also testified that when Aishwarya was taken away from her by the appellant, she was wearing yellow colour frock. We have seen cross examination of P.W.No.1 Sangita. In para no.6 she has stated that she did not lodge any report with police for alleged beating to her up till 8th of June. We have also noticed that no document could be produced by Sangita regarding proceedings before the panch committee of the community. We have also considered that she could not give the exact date of her complaint to panchas of the community. These admissions in our opinion are not much relevant. The learned counsel for the appellant points out para no.6 of the cross examination. Counsel for the appellant points out part of the cross examination which reads " Aishwarya was named by the accused. With this part of the evidence he submitted that case of the prosecution of commission of murder of Aishwarya by her loving father/appellant is not believable. We have also considered the suggestions in para no.7 of the cross examination of this witness P.W.No.1 Sangita.
14. P.W.No.3 Navnath, brother of P.W.No.1 Sangita is examined before the trial Court. His evidence is at Exh.13. We have considered evidence of P.W.No.3 Navnath. We have also considered cross examination of P.W.No.3 Navnath. Omission is pointed out to us which reads " I have not stated before police that accused returned at about 1.30 to 2.00 p.m. " In our opinion evidence of P.W.No.3 corroborates the evidence of P.W.No.1 Sangita. The circumstances alleged by the prosecution and which we have listed in para no.2, in our view have been proved.
15. Advocate for the appellant points out from the evidence that first information report (Exh.10) has been reduce into writing by police head constable Mr.Bhatane. However Mr.Bhatane is not examined on behalf of the prosecution. Factually submission of advocate for the appellant is correct. P.W.No.5 Mr.Tatyasaheb Mahadevrao Bhatane (Exh.17) is examined by the prosecution. From his evidence it is clear that Crime No.I-88/2007 was registered at Bhingar camp police station by police head constable Bhatane. P.W.No.5 Mr.Bhatane has only received Exh.10 i.e. F.I.R. In other words, Mr.Bhatane police head constable who wrote Exh.10 F.I.R. as per dictation and narration of P.W.No.1 Sangita is not examined. We have seen F.I.R. Exh.10 and alleged omissions. In our view there is no material omission which was required to be proved by the defence in the evidence of police head constable Bhatane. In the backdrop of these facts non examination of Mr.Bhatane police head constable cannot be said to be per-se illegal or has vitiated the trial. Advocate for the appellant had drew our attention to the Judgment of the Honourable Supreme Court in the matter of Asraf Sk. and another V/s State of West Bengal, in support of his submissions. We have seen Judgment, facts are distinguishable however ratio we have taken into account.
16. Another judgment cited is also seen by us it is in the matter of Keshav V/s State of Maharashtra reported in 2007(14) Scale 174. The judgment pertains to interpretation of Section 27 of Evidence Act. In the case on hand prosecution has established circumstances alleged beyond reasonable doubt. There are no material omissions or contradictions to overturn the material against the accused. We find presence of P.W.No.1 Sangita and P.W.No.3 Navnath natural. Their evidence is genuine and truthful. There is no manner of doubt in our mind that offence punishable Under Section 302 has been committed by the appellant/accused. We have also noticed answers given by the appellant to adverse circumstances, put to him Under Section 313 of Criminal Procedure Code. We do not find perversity or infirmity in the judgment and sentence inflicted upon the appellant by the trial Court. This appeal is devoid of substance.
17. In the result, the appeal stands dismissed. The judgment and order of conviction and sentence passed by the trial Court is maintained. Copy of this judgment be furnished to the appellant/accused free of costs, through jail authorities. We quantify Rs.3000/- (Rs.Three Thousand Only) towards costs and expenses to be paid to Shri.V.M.Lomte, Learned Advocate (amicus curiae) for the appellant/ accused.