1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.565 OF 2006 Narendra Sadashiv Ambre ..Appellant Age : 33 yrs, Occu : Service R/o.Rajpatsing Kisanpalsing Chawl Majaswadi Samrath Nagar, Jogeshwari (E) Mumbai – 440 060 V/s. The State of Maharashtra ..Respondent Mr.A.G.Toraskar, advocate, for appellant Mr.P.S.Hingorani, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 25TH APRIL, 2008 JUDGMENT (PER K.U.CHANDIWAL, J.) . The accused/appellant has challenged punishment and sentence under Section 302 of I.P.C in Sessions Case No.264 of 2003 by Additional Sessions Judge, Brihan Mumbai on 2nd May, 2005. 2 2. FACTS :- The accused got married with P.W.2 on 24th March, 1999. It was a love marriage. Out of the wedlock a boy by name Nishant was born on 1st January, 2000. However, the accused was not sailing well having suspected fidelity of his wife P.W.2 Nikita Narendra Aambre. Skirmish in the relation was multiplied, on passing of days. On 30th December, 2002 Nikita came to parental house due to fights between her and accused as accused suspected her. Then she went to join accused. She returned at 10.00 P.M. and informed her parents that the accused was harassing her and she was fed up with her life. She had not brought her son at that time. P.W.2 reported the matter to Meghwadi Police Station about harassment. The accused was called with the child at Police Station and child's custody was given to P.W.2 Nikita. 3. On 1st January, 2003 the accused came to the parents of P.W.2 , wished the kid, Happy Birthday and took him out. Nilesh Pitale, brother of P.W.2 received a call from the accused at about 3 10.30 P.M. “Mi Nishant La kayam Swarupi Zopawalele Aahe, To Kahi Kela Tari Uthnar Nahi”. The estranged brother of Nikita rushed to the house of accused with his mother where the accused was reclining and when asked about his son Nishant, accused told he is sleeping. Suspecting, behaviour of accused P.W.1 took Nishant to Dr.Madgaonkar, who told that the child is to be taken to Cooper Hospital. Consequently, Nishant was taken to Coopper Hospital where Doctors declared him dead. The F.I.R of Nilesh Pitale against accused was registered. The accused was put under arrest. In the house search the incriminating Pillow was taken charge. Post Mortem on the dead body was carried and Medical Officer opined (report Exh.12) that Asphyxial death due to smothering is most probability cause along with Chemical Analysors report and it was unnatural death. 4. After completion of investigation charge sheet against the accused came to be filed before Learned Metropolitan Magistrate and committed to the Sessions Judge, Greater Bombay charge below 4 Exh.2 was explained to the accused. The accused pleaded not guilty (Exh.3). 5. In order to substantiate the charge the prosecution has put in the following witnesses. P.W.1 Nilesh Nandkumar Pitale (Exh.7) complainant, P.W.2 Nikita Narendra Aambre (Exh.9), P.W.3 Nandkumar Shantaram Pitale (Exh.10), P.W.4 Dr.Manohar Pandurang Shivsharan (Exh.11). He has carried out Post Mortem on the dead body. P.W.5 Ganpat Shankar Aarekar. At the instance of accused a Pillow was taken charge in his presence. P.W.6 is Madhav Baburao Suryavanshi (Exh.15), who carried investigation. P.W.7 Abdulla Sahebjan Shaikh (Exh.18) carried further investigation, sent seized articles under forwarding letter (Exh.19) to the office of C.A. 6. DEFENCE :- The defence of the accused is that he is falsely implicated in this case. He has not disputed his relations with P.W.1 and P.W.2 or about marriage with P.W.2. He denied that he suspected fidelity of 5 P.W.2. Before us the learned counsel canvassed that non- examination of Dr.Madgaonkar is fatal. The child was alive when P.W.1 took him from house of the accused and it may be, due to poisoning by eating a cake in the earlier night by the victim Nishant. The learned Sessions Judge did not agree to the claim of the accused that the boy was alive when he was taken from his house. 7. ANALYSIS :- On analysis of evidence of P.W.1, P.W.2 and P.W.3, it is obvious that after the love marriage and birth of child Nishant there were controversies prevailing between accused and P.W.2. Preceeding night of incident there was exchange of words between the couple. The accused had assaulted her, she took Nishant with her and then accused took the three years old son to his house. P.W.1 having got message from the accused that “Mi Nishant La Kayam Swarupi Zopawalele Aahe, To Kahi Kela Tari Uthnar Nahi” he was naturally stunned and after regaining his composure went to the house of the accused where the accused repeated his earlier version. 6 P.W.1 noticed the accused to be in composed state of mind in his house and out of fear and frightenness in mind, P.W.1 took infant with him to the hospital of Dr.Madgaonkar which is at a distance of about a minute or two from place. Doctor adviced P.W.1 to take the boy to Cooper Hospital. From this place Cooper Hospital is at a distance of about 30 to 45 minutes. The boy was taken to the Cooper Hospital where Doctor on examination declared him dead. It was suggested to P.W.1 that on account of trouble on 31st December, 2002 and his arrest the accused was unhappy, therefore, he drank and was sleeping at his home and around 2.30 P.M he was picked up by the police. It was also suggested that on account of arrest of his father, three years old child was scared and in that condition he was shifted to the house of P.W.1. 8. The Post Mortem notes at Exh.12 proved through Medical Officer coupled with inquest, irrestibly establish that the three years old boy Nishant was brought by Police Constable 23397 for the purpose of Post Mortem and P.W.4 Dr.M.P.Shivsharan performed the 7 Post Mortem between 4.30 to 5.30 on 1st January, 2003. The Medical Officer noted the condition of the body and found that it had bluish coloured cynosed lips, mucosal abrasion minor presence and also noted that the nails of hands and feet were bluish coloured. He did not notice any bleeding or external injuries other than the aforesaid and internal injuries noted in Column 20 and 21. He found lungs congested and pumtate hamerrhage in left ventricle and found other chambers full of blood. The stomach contents were 50 gms. Food paste and liquid and noted the same to be congested. He did not find any other aspect of the injury. The blood was preserved for grouping and the parts of viscera were sent to the C.A for report. He prepared the Post Mortem and noted the cause of death finally after the receipt of the C.A. Report has established “Asphyxial death due to smothering is most probability cause along with Chemical Analysors report”. The P.M notes and the C.A.reports are at Exh.12. P.W.1, P.W.2 corroborate to the death of child. Thus, the death of three years old child is established and it was homicidal death. The accused has also not put up denial claim about such death. 8 9. It is apparently established that on 1st January, 2003 accused took Nishant with him, brought his home and on message from accused P.W.1 went to his house. The accused and deceased were lastly seen together. The condition of the boy Nishant was not good and the accused was being arrogant in his behaviour and reclining P.W.1 in natural corollary took his nephew to Dr.Madgaonkar. The accused, father of Nishant did not show any symptom to take care as to what could have happened to his son. At the instance of accused on 7th January, 2003 the police went with panch to his house at his instance a Pillow was recovered from the house/room of the accused. The panchanama (Exh.14 and 14A) is proved through P.W.5. P.W.6 went with P.W.1 to the spot on 1st January, 2003 and took a cake like product from the spot. At that time P.W.1 had complained even to the witness that the accused must have killed Nishant. F.I.R under Exh.8A came to be recorded. The spot panchanama is at Exh.16 and 17. The Pillow and other incriminating articles were sent under forwarding letter (Exh.19) to the 9 office of C.A. Apparels of the victim Nishant and the cake was also sent for analysis. The C.A report at Exh.19 dated 6th June, 2003 ruled out on general and specific chemical testing that there was poison. C.A.report concerning Pillow at Exh.19 is reported to be not having blood or in saliva. C.A.report part of Exh.19 dated 6th June, 2003 is relating to viscera in bottle. Blood of the deceased, viscera of child after general and specific chemical testing did not reveal presence of poison. Thus, claim of defence advocate that it could be a case of poisoning is completely ruled out. 10. The accused had quarrels with his wife P.W.2 and Nishant became eyesore for him and he took Nishant with him and systematically eliminated him without affording opportunity of resistence to the three years old boy. Blood of the accused did not boil while committing brutality with his three years old son. The cross examination of P.W.1, P.W.2 and P.W.3 on the point of accused taking Nishant could not make a dent to disbelieve their version. The evidence of P.W.1, P.W.2 and P.W.3 by circumstance establish the 10 formidable chain. The accused intentionally took the boy from the house of P.W.1 with intention to kill him and he succeeded in his act, communicated the same to P.W.1 and P.W.1 took the child to Doctor. The Medical Officer has admitted that he has not seen any injury on the nose as the injuries will depend on the pressure applied, comparable mass of the weapon and the point of contact. P.W.4 had in fact not even noted other external injuries round or about neck region of the deceased. The report of P.W.4 cannot be said to be in conclusive and such evidence is inconsonance directly. 11. On analysis we find that the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused find that the act has been done by the accused himself, with sinister and diabolic motives. 12. In the result, we do not find any fault in the order of conviction against accused. Hence, the appeal is dismissed and conviction and sentence is confirmed. 11 (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)