DIGAMBAR RAGHUNATH WAGLAVALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Criminal Appeal is directed against the order of conviction and sentence passed against the appellant-accused by the learned Additional Sessions Judge, Aurangabad dated June 7, 1980 in Sessions Case No. 25 of 1980. The accused is convicted under section 302 of the Indian Penal code and sentenced to suffer imprisonment for life.

(2.) A girl of oue and half mouths is alleged to have been thrown on a rockey surface by the accused on September 28, 1979 at about 12-30 P. M. in village Jogwada Taluka and District Aurangabad. The evidence led by the prosecution discloses that the accused was married with Gangubai (P. W. No. 5) nine or eight years before the date of the incident. The accused is a resident of village Turkabad Khaiadi in Taluka Gangapur District Aurangabad and Gangubai's parents live in village Jogwada nearly seven to eight miles away from Aurangabad, Gangubai lived with the accused peacefully and amicably for nearly eight to nine years. There was no quarrel or any ill-treatment at the hands of the accused to his wife Gangubai. Gangubai was sent to her parents at village Jogwada for delivery and she gave birth to a female child. The accused, few days before the birth of the child, also went to village Jogwada and stayed with his brother-in-law Kachru. He used to work as a labourer in the said village either with Kachru or with one Raibhan. Kachru was residing in the house along with his grandmother Patbabai, his own mother Kesarbai, wife Shantabai (P. W. No. 4), his brother Somnath and other members in his family. In front of his house, one Raibhan used to stay ar.d one Tukararm (P. W. No. 6) was an employee with Raibhan. On the date of the incident, that is, September 28, 1979, the evidence discloses, Kachru had been to his field early in the morning, his brother Somnath was also away from the house for his work. Kachru's mother Kesarbai also had been out in the field. The grand mother of Kachru, Pathabai, was an old lady, but she was in a position to see and work in the house, bhantabai (P. W. No. 4, and Oangubai (P- W. No. 5) decided to go to their field at about 9 or 10 a. m, on the date of the incident. It is the prosecution case that the accused was in the house and Gangubai asked the accused to look after the female child till they returned from the field. It is stated by Gangubai and Shantabai that the accused told them that if the child starts crying, he may immediately come to the field along with the child. After this conversation Shantabai and Gangubai were about to leave the house. Hardly they left for 15 to 20 paces, they heard the cry of the child. It is, therefore, firstly Shanabai entered into the house. She saw that the accused threw ths child in the courtyard which was hard and rocky. Shantabai intervened and asked to return the child. It is stated that the accused refused to return and again he lilted the child and dashed the child on the rocky surfaca of the courtyard. As a result of this second fall of the child, the child sustained number of injuries and ultimately died. The said incident of throwing the child on the rocky surface was witnessed by Shantabai and Gangubai. Gangubai also tried to take back the child from the accused, but she also failed to secure the child from the custody of the accused. One Tukaram (P. W. No. 6), who was standing in front of the house of Kachru near a horse, witnessed the said incident and had seen throwing of the child by the accused on the rocky surface of the courtyard. It has come in the evidence that Raibhan was in the house changing his clother. He was informed about the incident and he immediately rushed to the field to inform Kachru about the death of the child. Kachru came to the village and immediately he contacted police patil of the village fiandu (P. W. No. 1). On getting the information, police patil Bandu wrote a khabri report, which is at Exh. No, 17, and deputed on Bhagaji (P. W. No. 2) to go to police station and lodge the khabri report and the complaint. Accordingly, Bhagaji came to the Cantonment Police Station al Aurangabad which is nearly six miles away from the village, and lodged the khabri report given by the police patil. P. S. I Rakhelkar ,P. W. No 9) recorded the first information report given by Bhagaji at about 9-30 p. m. and thereafter registered the offence against the accused under section 302 of the Indian Penal Code.

(3.) Having registered the offence against the accused, P. S. I. Rakhelkar and one police constable Kundlik (P. W. No. 8) visited the village on the next day, that is, September 29, 1979. They immediately drew a panchnama of the scene of offence and an inquest of the dead body. A panchnama of the clothes of the deceased child was also made and the dead body of the child was sent to the hospital for medical examination. Dr. Ramkrishna Dusane (P. W. No. 3), who is a medical officer in the Government Hospital, conducted the post-mortem on the dead body of the child and prepared his post-mortem notes, which are at Exh. No. 11. The doctor found number of external injuries and also internal injuries. The investigating officer recorded the statements of number of witnesses and on completion of investigation filed a charge sheet against the accused under section 302 of the Indian Penal Code. The learned Magistrate before whom the charge sheet was filed was pleased to commit the accused to the Court of Sessions for his trial.