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2003 DIGILAW 862 (BOM)

Laxman Harlal Rathod v. State of Maharashtra

2003-08-13

P.S.BRAHME, R.K.BATTA

body2003
JUDGMENT R.K. Satta, J. - The appellants were tried for murder of the newly born child delivered by appellant Chandrakala as also for concealment 9f birth of the said newly born child by secret disposal of the dead body, as also for causing disappearance of' the evidence of the offence of murder u/ss. 302, 318. 201 r/w. 34 of the Indian Penal Code. 2. The prosecution has, in all examined sixteen witnesses in support on he said charges. The trial court held both the appellants guilty for the murder u/s. 302 r/w. 34 of the Indian Penal Code. Appellant Laxman was also held guilty u/ss. 318 and 201 of the Indian' Penal Code but appellant Chandrakala was acquitted of the said charges. All the substantive sentences were ordered to run concurrently. The pre-detention sentence of the appellants were set on in terms of section 428 of' the Code of Criminal Procedure. The appellants challenge their conviction and sentence, in this appeal. 3. The prosecution case is that appellant Chandrakala came to the house of appellant Laxman where she delivered a female child. Said child was murdered by forcibly inserting cotton pieces in her mouth. Appellant Laxman took the child for burying her in the Held but one Sanjay Lad saw him while burying the child on the common dhura of the fields of Boodke. Pawar and Nagpure. In fact, Padmakar Rakhunde and Fakira Ingle had seen appellant. Laxman burying the child on the common dhura of the fields of Booke. Pawar and Nagpure upon which they took objection and appellant Laxman took, that body and buried on the dhura of Held of Sanjay Lad who also took objection to it, upon which appellant Laxman took out the dead body of the child from the dhura of the field of Sanjay Lad. Sanjay Lad brought appellant Laxman along with dead body of the female child to the Police Station and lodged report on 13.10.1997. Post mortem on the dead body of the child was carried out and the doctor found that the child was born alive and was gagged to death. Before the trial Court the stand taken was that appellant Chandrakala had delivered a still born child on account of which the child was buried in the Held. 4. Mr. Post mortem on the dead body of the child was carried out and the doctor found that the child was born alive and was gagged to death. Before the trial Court the stand taken was that appellant Chandrakala had delivered a still born child on account of which the child was buried in the Held. 4. Mr. M.R. Daga the learned advocate for the appellant urged before us that even on the admitted evidence on record it is not possible to come to the conclusion that appellant Laxman had entertained common intention to kill the newly born child inasmuch as no role is ascribed to him in killing of the child. The fact that appellant Chandrakala had given birth to a child at his house by itself would not be sufficient nor there is any evidence to show that appellant Laxman had in any manner helped in gagging the child. In so far as appellant Chandrakala is concerned, it is argued that merely on her admission in statement under section 313 of the Code of Criminal Procedure that she had put cotton swabs in the mouth of child she could not be held guilty of murder as she has explained that the child was delivered premature and was a still born child and since blood was oozing out from her mouth cotton swabs were inserted in her mouth. According to the learned Advocate for the appellant the accused are entitled for acquittal. 5. Mr. Mirza the learned A.P.P., on the other hand urged that Narayan (P.W. 8) has deposed that he saw that hands of Laxman were stained with blood and when he asked him. Laxman told him that his niece gave birth to a child and that child expired. The learned A.P.P. further urged that his evidence coupled with the fact that the child was delivered at his house and subsequently he had taken the child for burying is sufficient to prove common intention on his part in order to hold him guilty for murder of the child. In so far as appellant Chandrakala is concerned. it is urged that the story put forward by her that the child was still born has been categorically negated by the Medical Officer who has stated that the child had breathed and it is only thereafter that the child was gagged to death by forcibly inserting cotton swabs in the mouth. In so far as appellant Chandrakala is concerned. it is urged that the story put forward by her that the child was still born has been categorically negated by the Medical Officer who has stated that the child had breathed and it is only thereafter that the child was gagged to death by forcibly inserting cotton swabs in the mouth. He therefore contends that there is no reason to interfere with the impugned judgment. 6. The fact that Chandrakala came to the house of Laxman and at that time she was pregnant is not disputed. The fact that Chandra kala gave birth to the child at the house of Laxman is also not disputed. What is disputed by the appellants is that the child was still born and the question of murder did not arise as also secret disposal of the dead body or destruction of evidence. Appellant Chandrakala is stated to be a widow. Exact relationship of appellant Chandrakala with appellant Laxman has not come on record except for what is state by Narayan (P.W. 8) that Laxman told them that his niece gave birth to a child. The first question to be determined therefore is whether the child was born alive and was gagged to death or it was a still born child. In this respect the evidence of Medical Officer Dr. Vivek Ramchandra Phadake (P.W. 10) is very relevant. Dr. Vivek Phadke has stated that he conducted post mortem of the newly born female child on 14.10.1997 between 2.10 p.m. to 2.30 p.m. on 14.10.1997. On examination of the dead body of child he found that eyes were open protruding out of orbit mouth wide open packed with cotton swab they were 10 in number upto Orspharynx bleeding from the nose was present with froth in the nose. Tongue was found depressed in florax. He found that cyanosis was present all over lips tongue nails-beds skin soiled with mud. He found that the brain was congested ribs were intact pleura was congested. Larynx trachea and bronchi were congested with froth and blood. He also found that right lung was congested with froth and blood. After hydrostatic test he found that it floated on water. Left lung was congested Inflamed with froth and blood and floated in water. Pericardium was congested. Larynx trachea and bronchi were congested with froth and blood. He also found that right lung was congested with froth and blood. After hydrostatic test he found that it floated on water. Left lung was congested Inflamed with froth and blood and floated in water. Pericardium was congested. On examination of heart right chamber was full with blood and tell chamber of the heart was empty. In his opinion the probable cause of death was respiratory failure due to 'gagging. Weight of the child was 2 kg. height was 1.7". length of cord was 10". From the examination of dead body he found that it was a full term baby. The child died after birth. From the length of the cord he could say that the post mortem was conducted after three days from the death of that child. After the birth the child inhaled there was respiration and he found that the right lung floated in the water. He further stated that had it been the fact that the child was still born there would have been no respiration and the lung ought to have sunk in the water. He further stated that it was a live-born baby and after birth there was respiration and' that is why both the lungs floated in water. He also stated that he found froth and blood in larynx trachea bronchi right lung and left lung and on the basis of that he opined that the child was not still born but it was born alive. There was respiration. He stated that queries were made by the Police to which he stated that the female child was live-born child the child died after birth and that the child died due to respiratory failure due to gagging. 7. Thus it is clear that gagging was effected by Inserting cotton swabs in the mouth of the' child. The cotton swabs were not- in the nose but they were in the mouth. Dr. Vivek Phadake (P.W. 10) denied the suggestion that due to the accident cotton may be there in the mouth. The new born child was in her custody. He has stated that the tongue was found depressed in florax. This categorical statement of Dr. Vivek clearly rules out the theory put forward by appellant Chandrakala that the child was pre-maturely born or was still born. The new born child was in her custody. He has stated that the tongue was found depressed in florax. This categorical statement of Dr. Vivek clearly rules out the theory put forward by appellant Chandrakala that the child was pre-maturely born or was still born. Appellant Chandrakala has admitted in her statement u/s. 313 of the Code of Criminal Procedure that she had put cotton swabs in the mouth of the child since according to her blood was oozing out from her mouth. The circumstances and evidence on record is thus clear that it was appellant Chandrakala who had gagged the child after the child breathed by forcibly inserting 10 cotton swabs. Probably this was done because she was a widow and the child was born out of the illicit relations. However prosecution has not been able to show that appellant Laxman 'had entertained any common intention or had in any manner helped Chandrakala in gagging the child. Presence of blood on the hands of Laxman could also be as a result of birth of the child which would not necessarily mean that he had murdered the child. In fact the child was gagged to death by inserting cotton swabs in her mouth. In our opinion there is not sufficient evidence on record to come to the conclusion that the appellant Laxman had common intention to kill the child or he had taken any part in gagging the child. 8. In view of the above we and that appellant Chandrakala has been rightly found guilty for murder of the child but the conclusion of the trial Court holding appellant Laxman guilty with the help of section 34 of the Indian Penal Code for his conviction u/s. 302 of I.P.C. cannot be sustained. Nevertheless." the conviction of Laxman for the offences u/s. 318 and 201 of Indian Penal Code cannot be interfered with since there is ample evidence on record that the appellant had in fact taken the dead body of child for the purpose of burying it in the field and not in the burial ground. 9. For the aforesaid reasons the appeal filed by appellant Chandrakala regarding her conviction and sentence u/s. 302 of the Indian Penal Code is hereby rejected. The appeal filed by appellant Laxman for his conviction u/s. 302 of I.P.C. is hereby allowed. 9. For the aforesaid reasons the appeal filed by appellant Chandrakala regarding her conviction and sentence u/s. 302 of the Indian Penal Code is hereby rejected. The appeal filed by appellant Laxman for his conviction u/s. 302 of I.P.C. is hereby allowed. However conviction of the appellant Laxman for the offences u/ss." 318 and 201 of the Indian Penal Code is maintained. For those offences appellant Laxman was sentenced to suffer rigorous imprisonment for two years under each count but the substantive sentences were ordered to run concurrently. Appellant Laxman is said to be in jail in connection with these offences from 17.10.1997 till to date. Therefore appellant Laxman is deemed to have undergone the sentence u/ss. 318 and 201 of the Indian Penal Code. He shall therefore be set at liberty in case he is not required in any other case. The appeal stands disposed of in the aforesaid terms. Appeal allowed partly.