DEVIDAS LALSAY GAVANDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The original accused has preferred this appeal against the judgment and order of conviction dated 30th March, 2002 passed by the 2nd Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Case No. 71 of 2001 whereby the accused has been convicted and sentenced for an offence punishable under section 302 of the Indian Penal Code to suffer rigorous imprisonment for life and to pay a fine of Rs. 200/-, in default, to suffer simple imprisonment for two months.

(2.) The appellant was prosecuted for the offences punishable under sections 302 and 317 of the Indian Penal Code. The prosecution case in brief is that the appellant was residing at village Pendhari. Deceased Akash, aged about 4 years, was the son of appellant. Witness Chanda (PW 5) is the wife of appellant. Appellant along with his wife and son started residing at Vivekanand Nagar, gadchiroli. Six months prior to the incident, his wife deserted him and left his house by keeping her son Akash with the appellant and she started residing with one Ganesh Bhoyar as his keep. The appellant used to do labour work and therefore, he was facing problem of his son Akash. It is alleged that on 30-6-2001, the appellant with intent to get rid of the child brought him in the forest behind Semana Temple which is 5 kms away from Gadchiroli and he pressed his throat and threw him in the bush in the said forest and he went back to his house. Some boys were grazing cattle in the said forest. One of them heard the cry of the child from the bush. The boys went towards the bush. They brought child to semana Temple. PW 2 Namdeorao was working as President of Semana Temple. The boys handed over the child to Namdeorao and informed him that child was found in the bush. Namdeorao (PW 2) made enquiry with the child who disclosed his identity. Near the temple there is one Nursery. Some ladies were working in the Nursery. They offered water to said Akash. One lady, viz. Sindhubai (PW 4) made enquiries with Akash about his name, name of this father, mother and place of his residence. The child gave full information. As blood was oozing from the nose of the child, she had cleaned the same and on further enquiry the child told her that his father brought him towards Semana Temple saying that he is going to purchase new clothes for him and he beat him. She fed him with cooked rice. Though the child was giving answers to the questions put to him, but his physical condition was not proper and he was just as paralytic Namdeorao took the child to the Police Station and informed the police that the said child was found in the forest behind Semana Temple. The child was referred to the General Hospital, gadchiroli and he was admitted in the hospital on the very day of the incident. The accused was brought to the Police Station on 4-7-2001. His statement was recorded ASI Nepalchandra (PW 5) made enquiry and his enquiry revealed that the appellant abandoned the child and attempted to kill him. Therefore, he himself lodged report on behalf of the State on the basis of which crime No. 135/01 under sections 317 and 307 of the Indian Penal Code came to be registered against the appellant and the further investigation was entrusted with PW 9 mangalsingh Daberao. On 5-7-2001 the child was referred to the Government medical College, Nagpur for further treatment. The child died on 6-7-2001 in the hospital. Police held inquest on the dead body of the deceased and drew inquest panchanama in presence of panchas. Dead body was referred to Dr. Dikshit (PW 8) for post-mortem examination. Dr. Dikshit conducted autopsy on the dead body of the deceased and opined that death of Akash was caused due to cerebral and pulmonary oedema. After completion of investigation, charge-sheet was submitted against the accused for the offences punishable under sections 317 and 302 of the indian Penal Code in the Court of Chief Judicial Magistrate, Gadchiroli.

(3.) Offence under section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions. Therefore, the learned Chief Judicial Magistrate committed the case to the Court of Sessions for trial according to law. Charge under sections 317 and 302 of the Indian Penal Code was framed against the accused. It was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. His defence is that of denial. He admitted that his wife deserted him and child and the child was living with him and he was moving in search of the child. He received information that the child was taken to the Police Station. Therefore, he went to the Police Station, informed the police, but his report was not taken down and he stayed with the child in the hospital for two days and thereafter police arrested him and made a false case against him. He has not adduced any evidence in his defence.