1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2366 OF 2010 The State of Maharashtra ...Applicant Versus Ravindra Madhav Landge ...Respondent ..... Mr. N.R. Shaikh, advocate for the applicant None for the respondent ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF ORDER : 16 .08.2010 DATE OF PRONOUNCEMENT OF ORDER : 17.08.2010 ORDER (PER SHINDE, J.) 1 This application is filed seeking leave to file appeal against the judgment and order of acquittal dated 21.1.2010 passed by the learned Additonal Sessions Judge, Sangamner in Sessions Case No. 45 of 2007. 2 Brief facts of the case are that on 8.7.2007, Madhav Kauraji Landge gave an intimation to Sangamner Taluka police station that on 2 that day his grand-son Rohan (son of the accused) had accidentally fallen in a pit dug for storing water and drowned. On the basis of the said intimation A.D. Case No. 69 of 2007 was registered. On 9.7.2007, Indubai, wife of the accused (mother of deceased Rohan, aged 2 ½ years) gave a report at Exh.23 to Sangamner Taluka police station containing that 7 to 8 years ago marriage of the complainant was performed with one Subhash. She cohabited with Subhash only for about two months. Thereafter the complainant performed second marriage with the accused. The complainant became pregnant. Since then the accused started saying her that he already had a son named Deepak from his first wife and he did not want another son to share the property with Deepak. The complainant gave birth to Rohan. It is further case of the complainant that the complainant came to know that due to birth of second son the accused had consumed insecticides and he was admitted in a hospital at Sangamner. When the complainant and her son Rohan came to reside with the accused, the accused started harassing the complainant that when he wanted a daughter she had given birth to a son and he would not allow the son to remain alive. On 8.7.2007, around 7.00 p.m. The complainant was cooking food in the house. The accused and his mother were sitting on raised platform in front of the house. It is the case of the complainant that 3 she saw that the accused had taken Rohan with him towards the road. Soon thereafter, the accused came back and told the complainant that Rohan had fallen in a pit, he had drowned and he was dead. The complainant went to the pit with her mother in law. Dead body of Rohan was taken out of the pit. Since, the accused did not want Rohan to share ancestral property with his first son Deepak, committed his murder by drowning him in water stored in the pit. On this allegations crime No. 208 of 2007 came to be registered at Sangamner Taluka police station under Section 302 of I.P.C. The Police Inspector conducted investigation and filed charge sheet and case was committed to the Court of Sessions. The Sessions Court, after appreciating evidence on record and after hearing both the sides acquitted the respondent. Hence, the State has filed application for leave to file appeal against the impugned judgment and order of acquittal. 3 Learned A.P.P. submitted that since the respondent accused had a son from his first wife and with a motive that Rohan should not share the property with the son from his first wife, killed deceased Rohan. Learned A.P.P. invited our attention to the statements of the complainant and submitted that the trial court has not properly appreciated the evidence on record and acquitted the accused, therefore, he prayed for leave to prefer appeal against the impugned judgment and order of acquittal. 4 4 Though the respondent is served, none appears for him. We have heard learned A.P.P. at length. Perused the evidence of the complainant as well as PW 2 and other evidence brought on record by the prosecution. On perusal, it appears that on 8.7.2007, one Madhav Kauraji Landge gave intimation to Sangamner Taluka police station on which A.D. No. 69 of 2006 was registered. It is an admitted position that complaint was lodged on 9.7.2007 by the wife of the respondent- accused. The complainant herself has stated that on the day of incident, in the night she went with her relatives to Sangvi and discussion took pace among her relatives about death of Rohan and after the said discussion she had filed complaint on 9.7.2007. The learned Sessions Court has taken a note of this fact in para 25 of its judgment. On our independent scrutiny, we do not find any cogent reason for filing belated complaint. Moreover, it appears that Indubai only after discussion with her relatives had taken a decision to file complaint and therefore, the possibility of tutoring to file such complaint cannot be ruled out. 5 Coming to the evidence of PW 2 about illtreatment by the accused-appellant is concerned, we do not find any substance in the said evidence, which is not supported by any independent material. So far as consumption of insecticide by the accused is concerned, he has explained that he did not consume the same on account of giving birth 5 to Rohan but due to some quarrel took place between his father and himself. The trial court has accepted the said explanation and we do not find any merit in the statement of the complainant that the said insecticide was consumed by the respondent-accused because of the complainant had given birth to Rohan. It is an admitted position that pit was dug on the same day. According to PW 3 he himself and other relatives saw the pit which was about 5 feet in diameter, its depth was 2 ½ feet and depth of water in the pit was 1 ½ feet. However, the trial court in para 29 has taken into consideration the photographs which are exhibited at Exh. 42, 43 and 44. From the photographs, the trial court has gathered that the pit was not round. It was rectangular. Perusal of these photographs shows that depth of pit was not less than 3 feet. Surface of the pit was slushy. 6 Respondent accused had examined DW 1 Deelip Landge on his behalf. DW 1 Deelip has stated in his evidence that he and the accused respondent were talking to each other on the road near the spot, Deepak came there, the accused asked Deepak where Rohan was. Deepak told him that Rohan was playing near water, the accused was alarmed and ran to the spot and Deelip Landge went after the accused. Therefore, the testimony of DW 1 Deelip Landge would show that the conduct of accused was quite natural under the circumstances. 6 7 It is also relevant to mention that after the mishap accused himself gave a message on telephone to PW 2 Suresh. It is an admitted position that deceased Rohan had not sustained any injuries on his body. When incident in question is occurred, the age of Deepak i.e. son of the accused was around eight years. At the relevant time, son Deepak, who is born from the first wife of accused and Rohan were playing outside the house. One pit was dug near the house of the accused for storing water for construction which was recently started. The pit was dug on that very day. Near the mouth of the pit there was mound of excavated material. Flooring of the pit was slushy. From the photographs Exh. 42 to 44 it can be gathered that depth of the pit was not less than three feet. The trial court has gathered that the pit was dug on a black soil. There was no reliable material placed by the prosecution about the depth of the water in the pit when the incident occurred. When the spot panchnama Exh.28 was conducted on 9.7.2007, there was no water in the pit. The flooring of the pit could be seen to be slushy. However, it is not disputed that when the incident occurred there was water in the pit. As per intimation Exh.30 depth of water was 2 ½ feet. Age of Rohan was 2 ½ years when he drowned. No surface wounds/injuries were noticed by P.W.8 while conducting autopsy. There was no sand/earth inside the nails. According to PW 8 Dr. Bhaskar Bhavar possibility of feet of a child getting trapped in the wet black soil after his accidental fall in the pit could not be ruled out. (Emphasis supplied) 7 8 Therefore, the trial court on the basis of the material which was brought on record by the prosecution has come to the conclusion that death of Rohan was not homicidal. The Trial court has taken into consideration the conduct of the accused that the accused did not run away from the spot. On the contrary, he immediately informed PW 2 Suresh – brother of the complainant Indubai about the incident. According to the findings recorded by the trial court, had the accused forcibly drowned Rohan in the pit, external injuries would have been found on the body of Rohan because he would have certainly offered resistance. The trial court has also discussed about the alleged motive and accepted the defence version that the accused consumed insecticide because of domestic quarrel with his father and not because of birth of Rohan. 9 The trial court after assessing the evidence has observed that there are missing links in the chain of circumstances and acquitted the respondent accused. On our independent scrutiny of evidence brought on record and after taking into consideration the fact that the complaint was lodged by the complainant Indubai on next day. It is an admitted position that on the night of 8.7.2007 Indubai had gone to relatives and after discussion the complaint was lodged on 9.7.2007. Therefore, there is possibility of tutoring by the relatives to Indubai. Evidence of PW 2 and PW 3 do not inspire confidence. The finding of 8 the trial court that death of Rohan was not homicidal, is recorded after taking into consideration entire evidence on record. We do not see any reason to interfere with the said finding. The evidence of Medical Officer that possibility of feet of a child getting trapped in the wet black soil after his accidental fall in the pit could not be ruled out, has been accepted by the trial court. 10 Therefore, taking over all view of the matter, possible view has been taken by the trial court. We do not see any perversity in the findings recorded by the trial court, Therefore, we are not inclined entertain this application. Application seeking leave to file is dismissed. Leave refused. *****