DIPIKA SHIVLAL SUTHAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appeal is directed against the judgment and order dated 11th January, 2011 of conviction passed by Sessions Judge of City Civil Court, Greater Bombay thereby holding the appellant/accused guilty for the offence punishable under section 304 Part II of the Indian Penal Code and sentencing her to suffer R.I. for 7 years with fine of Rs. 500/i/d. to suffer R.I. for 10 days. The incident has taken place on 9th May, 2010 in the house of the appellant. The appellant/accused has married to one Shivlal Sutar six months prior to the incident. It was a second marriage of Shivlal Sutar. He was having one son named Kartik nearly of 2 years old from his first wife. Kartik was residing with his grandparents in Rajasthan. However, the appellant and her husband went to Rajasthan 15 days prior to the incident and brought Kartik to Mumbai to reside with them. The appellant was the stepmother of Kartik.

(2.) It is the case of the prosecution that the appellant used to ill-treat Kartik and beat him often. On 9th May, 2010 at around 10.30 a.m. appellant beated Kartik and so he was crying loudly. But suddenly his crying stopped as the appellant put his head in the bucket of water and killed him. Thus, Kartik died due to drowning. Thereafter she called the ladies in the neighbor and with their help she took the body of Kartik to Rajawadi hospital at around 14.00 hours. PW-1 Vasant Halde was P.S.I. at Bhandup Police Station. He was informed telephonically that one dead child is brought to the hospital, so he went to the hospital and enquired about it. He found that Kartik died due to drowning. ADR was registered. He proceeded to the house of the appellant. Spot panchnama (Exhibit 11) was drawn between 3.30 p.m. to 4 p.m. and then inquest panchnama (Exhibit 10) was prepared. Thereafter PW-1 Halde himself gave the FIR (Exhibit 12) on the next day, as nobody was ready to come forward to give FIR. The FIR was registered at C.R. No. 173/2010 on 11th May, 2010 for the offence punishable under section 302 of the Indian Penal Code against the appellant/accused. He investigated the matter and recorded statements of neighbors and other persons. He took photographs at the time of spot panchnama and also collected the postmortem report. After completion of the investigation, he filed charge sheet in the Court of Magistrate. The appellant/accused was prosecuted under section 302 of the Indian Penal Code and this being triable by the Sessions Court, the case was committed to the Sessions for trial. The learned Sessions Judge framed charge under section 302. The appellant/accused pleaded not guilty and therefore the case was put to trial. After recording the evidence, the trial concluded in conviction. Hence, this Appeal.

(3.) The learned counsel for the appellant/accused submitted that the appellant/accused is innocent. There is insufficient evidence to hold her guilty. The learned counsel submitted that nobody was ready to give the FIR. The father of the deceased child had no complaint against the appellant/accused. At the relevant time, the appellant had gone to terrace to dry the clothes and the boy was alone in the room. She submitted that there is no eye witness to the incident. The appellant/accused is falsely implicated in this case and only on the basis of mere suspicion. In support of her submission, the learned counsel relied on the admissions given by PW-1 Vasant Halde in the cross-examination wherein he has admitted that the appellant was the stepmother of the deceased and, therefore, police suspected that she might have committed the offence. She further pointed out that the panchas of spot panchnama were not examined by the Investigating Officer. The panchnama is faulty. In the cross-examination PW-1 Halde has admitted that there was a plastic bucket and plastic drum, however, the plastic drum was not seized at the time of spot panchnama. She submitted that a possibility of accidental death by drowning in the water cannot be overruled as the capacity of the drum was 30 litres. She further submitted that the police ought to have seized the said drum also. Under such circumstances, she argued that the appellant/accused be given the benefit of doubt and she be acquitted. She further relied on the observations made by the learned Judge in its judgment and submitted that the assessment of evidence in respect of the spot and the manner in which the incident has taken place is not proper. The learned Judge ought to have appreciated that when the child was alone in the room and there was a water in the bucket, then accident was possible. Hence, she submitted that the judgment be set aside and appellant be acquitted. Alternatively, she submitted that at the time of holding the appellant guilty, the charge was reduced from section 302 to Section 304 Part II and she was sentenced for 7 years. She submitted that from the date of incident i.e. 9th May, 2010 the appellant is behind the bars and has completed 4 years in the prison and with remission she has completed approximately 5 years, therefore, if at all she is held guilty and if the judgment of the Sessions Court is maintained, then leniency be shown on the point of sentence and be reduced from 7 years to 5 years.