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2013 DIGILAW 800 (BOM)

Sunil Ladaku Tare v. State of Maharashtra

2013-04-05

P.D.KODE, V.K.TAHILRAMANI

body2013
JUDGMENT SMT. V.K. TAHILRAMANI, J.:- This appeal is directed by the appellant-original accused against the judgment and order dated 7.5.2007 passed by the learned III rd Additional Sessions Judge, Thane in Sessions Case No. 139 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay a fine of Rs. 100/- in default RI for ten days. 2. The prosecution case briefly stated, is as under: The appellant was residing with his wife and children at Budhavali, Taluka Wada, District Thane. His paternal aunt PW-1 Bharti was residing in the adjoining house to the house of the appellant. The appellant and his wife had two children, one of them being a daughter aged 3½ years who was named Najuka. Najuka was a handicapped child. Frequent quarrels used to take place between the appellant and his wife Sunanda. Due to this, whenever there used to be quarrels, the wife of the appellant used to go to the house of her parents and reside there. After some period of time, she used to come back. At the time of the incident, the wife of the appellant had gone to the house of her parents. The appellant and his daughter Najuka were the only persons in the house. Najuka was handicapped and hence, she was not in a position to walk. She was also malnourished at the time of the incident. On 11.1.2006 at about 12 p.m. the appellant started beating Najuka with the stick. PW-1 Bharti and PW-2 Surekha witnessed the incident. They saw marks of injuries on the person of Najuka. Najuka died on 12.1.2006 at about 6.45 a.m. PW-1 Bharti lodged F.I.R. (Exh.13). Thereafter investigation commenced. The dead body of Najuka was sent for post-mortem. PW-5 Dr. Gosavi conducted the post-mortem on the dead body of Najuka. On examination, he found the following injuries on Najuka: 1) Contusion blackish on left side of forehead 3 cm x 1½ , cm. 2) Contusion blackish below left oricle 1 cm x ½ cm. 3) Scratch marks 2 on left side of neck 1) 1 cm x ½ cm. 2) ½, cm. x ½ cm. 4) Blackish contusion on right side of face 1) 4 cm x 1cm on right chin, 2) 2 cm x ½ cm. on right eye left angle. 2) Contusion blackish below left oricle 1 cm x ½ cm. 3) Scratch marks 2 on left side of neck 1) 1 cm x ½ cm. 2) ½, cm. x ½ cm. 4) Blackish contusion on right side of face 1) 4 cm x 1cm on right chin, 2) 2 cm x ½ cm. on right eye left angle. 5) Contused abrasion on left knee 2 cm x 1 cm. 6) Abrasion on left ankle lateral 2 cm x ½ cm. 7) Blackish abrasions obliquely on lumber spine 3 in numbers, 1) ½ cm x ¼ cm. 2) ½ cm. x ¼ cm. 3) ¼ cm. x ¼ cm. He observed a fracture in 5th cervical vertebra and laceration to cervical spinal cord. According to Dr. Gosavi, the cause of death is neurogenic shock due to injury to spinal cord leading to death. All injuries were ante-mortem. Injuries were possible because of the hard and blunt objects. All the injuries were possible because of being beaten by stick and stone. After completion of investigation, the charge sheet came to be filed against the appellant under Sections 302 and 498-A of IPC. 3. Charge came to be framed against the appellant under section 302 of IPC for causing death of Najuka and under section 498-A for treating his wife with cruelty. The appellant pleaded not guilty to the said charges and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Judge acquitted the appellant under Section 498-A of IPC, however, convicted and sentenced the appellant for causing death of his daughter Najuka. 4. We have heard the learned counsel for the appellant and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record, we are of the opinion that the appellant assaulted his minor daughter Najuka with stick and caused her death. 5. The conviction is mainly based on the evidence of two eye witnesses i.e. PW-1 Bharti and PW-2 Surekha. Bharti was the paternal aunt of the appellant. She was residing in the house adjoining to that of the appellant. 5. The conviction is mainly based on the evidence of two eye witnesses i.e. PW-1 Bharti and PW-2 Surekha. Bharti was the paternal aunt of the appellant. She was residing in the house adjoining to that of the appellant. She has stated that frequent quarrels used to take place between the appellant and his wife. Whenever quarrels used to take place, the wife of the appellant used to go to the house of her parents and used to stay for some period of time at her parents' house. As there were frequent quarrels, wife of the appellant used to stay for some period of time at her parental home and for some period with the appellant. At the time of the incident, the wife of the appellant was residing at her parental home. Only the appellant and his minor daughter Najuka aged 3½ years, were residing in the house of the appellant. Najuka was disabled child and she was not in a condition to walk. On 11.1.2006 at about 12 noon, PW-1 Bharti saw the appellant beating his daughter Najuka. At that time, she saw Najuka was lying in the courtyard. She told the appellant not to beat his daughter. However, the appellant threatened her that if she came near him, he would throw stone on her. Due to this, PW-1 Bharti got frightened. The incident has also been witnessed by PW-2 Surekha. Surekha has stated that at about 12 noon, she had seen the appellant beating Najuka with the stick in the court-yard. When she objected, the appellant did not listen to her. Nothing has been elicited in the cross-examination of both these two eye witnesses so as to disbelieve their testimony. 6. The injuries sustained by Najuka are already reproduced in paragraph 2 above. It is seen that Najuka had sustained seven injuries. There were contusions on her face and various injuries on her body. It is seen that the appellant assaulted Najuka many times with the stick on the spine due to which, there were lacerations to the spinal cord as well as fracture to the 5th cervical vertebra. This has led to the death of the child due to neurogenic shock due to injuries to spinal cord. The appellant has assaulted Najuka who was a child of just 3½ years. Najuka was handicapped. She was unable to walk. This has led to the death of the child due to neurogenic shock due to injuries to spinal cord. The appellant has assaulted Najuka who was a child of just 3½ years. Najuka was handicapped. She was unable to walk. Moreover, Najuka was malnourished at the time of the incident. In such circumstances also, the appellant assaulted Najuka an innocent child of 3½ years. Beating by the appellant was so severe that it caused fracture of 5th cervical vertebra and laceration to cervical spinal cord in addition to other injuries. The fact that the appellant beat his minor handicapped child of 3½ years with stick so mercilessly so as to cause injuries reflected in the post-mortem notes, shows that the appellant committed the act, knowing that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and committed such act without any excuse for incurring the risk of causing death or such injury as aforesaid. As stated earlier, Najuka was a minor child of about 3½ years. She was handicapped. Moreover, she was malnourished at the time of incident. In such case, beating to such a child not once but many times with the stick, would make the case fall under clause four to Section 300 of IPC. We stand fortified in taking this view by the fact that the stick was 3 feet 8 inches in length i.e. even taller than the child who was being beaten. In this view of the matter, we find no merit in the appeal. Appeal is dismissed. 7. At this stage, we must record our appreciation for Mr. Arfan Sait appointed from the High Court Legal Services Committee Bombay to represent the appellant. We find that he had meticulously prepared the matter and he has very ably argued the matter. We quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs. 2400/-. The said fees be paid to advocate Mr. Sait within four months from today. Appeal dismissed.