BHAGANBAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ''This appeal is directed against the judgment and order of conviction dated 19/9/2001 passed by the learned Additional Sessions Judge in Sessions Trial No. 19/01, whereby both the appellants -accused are convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/ -, in default to undergo further rigorous imprisonment for six months.

(2.) THE case of the prosecution is required to be stated in brief as under : (A) The accused are resident of village Bihiriya and on 01/2/2001 accused No.2 lodged report at Police Station, Tirora vide Exh. 38 and informed that his son was missing from his house since about 4.30 a.m. Accused No.2 also informed that when he got up at about 4.00 a.m. his son was sleeping at his house and when he came back to his house after answering the call of nature, he did not notice his son. Accused No.2 narrated this fact to his neighbours and thereupon they had carried search of their son Omendra alias Sonu in some wells but there was no trace till 12th noon and, thereafter, accused No.2 also informed to Police Station Officer, Tirora. It is the case of the prosecution that Manraj (PW 1) who is brother of accused No.2 also had made search, but the boy Omendra @ Sonu could not be found and, therefore, Manraj had lodged missing report (Exh.17) at Police Station, Tirora. The witnesses Madanlal (PW 2), Ravindraprasad (PW 3), Lalitabai (PW 4), Suresh (PW 5) and Kisan (PW 6) had gathered at the house of the accused and accused No.1 had pretended that she was possessed by Goddess Navdurga and she would show the child in the well of Shri Pantawane which was situated about 2 furlongs away from her house. The boy Omendra @ Sonu was of the age of 5 years and he was crippled and was affected by polio. Accused No.1 thereafter led all the aforesaid prosecution witnesses to the well of Pantawane and the witnesses Suresh (PW 5) and one Parmanand Kawale had put the anchor in the well and tried to make the search of the boy, but he could not be found at the initial stage but accused No.1 said that her son would be found in the very well itself and they should again put the anchor in the well and make vigorous search. Thereafter, the anchor was put in the well again and the anchor had picked up the dead body of Omendra @ Sonu. (B) A.P.I. Bharat Thakre (PW 8), on receiving the missing report from accused No.2, had registered the accidental death case No.5/01 under section 174 of the Criminal Procedure Code and thereafter he had received the information that dead body of Omendra @ Sonu was found in the well and, therefore, he visited the spot of incident and went near the well and took up the dead body out of the well and drew spot panchanama as well as inquest panchanama. He forwarded the dead body to Rural Hospital, Tirora for the purpose of postmortem. Dr. Nandkishor Bankar (PW 7) effected autopsy on the dead body on 2/2/2001 in between 10.30 a.m. to 12.30 p.m. and opined that probable cause of death was due to asphyxia due to drowning and accordingly he issued post -mortem report (Exh. 27). On completion of the investigation, charge sheet against both the accused was filed in the Court of the learned Judicial Magistrate, First Class. (C) On committal of the case to the Court of Sessions, the learned Additional Sessions Judge framed and explained the charge to both the accused to which they pleaded not guilty and, therefore, the trial proceed with. The prosecution has examined as many as 10 witnesses in support of its case and relied on the circumstantial evidence. As against this, the defence of the accused is that of total denial. The accused did not examine any defence witness. (D) The learned Additional Sessions Judge on consideration of the circumstantial evidence has recorded finding that the complicity of both the accused in commission of the murder of their own son has been established beyond reasonable doubt and consistent with this finding, he convicted both the accused and sentenced them as mentioned above. This judgment and order of conviction is under challenge in this appeal.

(3.) MR . Daga, the learned counsel for the appellants -accused contended that the accused persons are rustic villagers and the villagers of Bihiriya had a belief in superstition. When they made vigorous search for tracing out Omendra @ Sonu in 2 -3 wells, the boy could not be found and thereafter accused No.1 is said to have furnished information in presence of the villagers that her son would be found in the well of Mr. Pantanvane. He contended that this isolated circumstance is not sufficient to establish that it is the accused No.1 who had thrown her own crippled son into the well. He contended that the entire case of the prosecution is based on the stray circumstances which do not complete the chain of circumstances and do not show that in all probability it is the accused No.1 and none else who had committed the murder of Omendra @ Sonu by throwing him into the well of Mr. Pantawane. He contended that no mother of a child who is crippled would commit murder of her own son and in absence of any positive material on record to indicate that accused No.1 had mens rea to kill her son by throwing him into the well, no conviction can be based on the isolated information said to have been furnished by accused No.1. He, in the alternative contended that at the most the offence would be squarely covered by section 304 -II of the Indian Penal Code so far as accused No.1 is concerned and in such circumstances, her appeal may kindly be allowed and sentence may be reduced to imprisonment for the period already undergone.