APPLN.5734-2010.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5734 OF 2010 The State of Maharashtra ...Applicant. Vs. Sou. Savita Rajaram @ Rajendra Chavan ...Respondent. ---- Mrs. A.S. Pai, APP for the Applicant-State. --- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. Reserved On: 22nd February, 2011. Declared On : 25th February, 2011. P.C.:- 1 Acquittal of the accused Sou. Savita Rajaram @ Rajendra Chavan in the Sessions Case No.147 of 2006 under Section 302 of IPC, 1860 is tried to be brought in question in the present application for leave to appeal against the judgment and order passed in the said case by the learned Additional Sessions Judge-3, Kolhapur on 06.08.2010. 1 APPLN.5734-2010.sxw 2 The accused Savita Chavan gave birth to the second female child in Panchganga Hospital at about 6.35 p.m. on 11.7.2006. On 14.7.2006, at about 6.00 a.m. sister of the accused Savita Chavan brought the said newly born female child to the Medical Officer on duty at the said hospital as the child was motionless. On examination, the Medical Officer noticed ligature marks around the neck of the said child and the child was found dead. Foul play was suspected, and therefore, the matter came to be reported to the police. 3 In the course of the investigation, the police recorded the statements of the witnesses, drew inquest panchanama, spot panchanama, and collected the clothes of the accused and deceased child as well as their blood samples, and got the autopsy performed on the body of the deceased child. A charge-sheet was duly lodged against the accused thereafter and the case was committed to the court of Sessions for trying the accused Savita Chavan for the offence punishable under Section 302 of IPC, 1860. 4 The prosecution examined twelve witnesses to establish its case that the deceased child was murdered by the accused Savita as the 2 APPLN.5734-2010.sxw child was unwanted baby due to her gender. 5 Perusal of the record reveals that the entire case of the prosecution is based on the circumstantial evidence read in conjunction with the medical evidence. It was, therefore, incumbent upon the prosecution to have proved every circumstance leaving no room for any hypothesis other than the guilt of the accused. Proving of motive for killing a newly born child by mother was also imperative. Keeping in mind these imperatives, the learned trial court duly considered the entire evidence led by the prosecution, and found from the evidence of PW-12 Smt. Sonabai Wakarekar the sister of the accused and aunt of the newly born victim, that there was lurking possibility of newly born dying as a result of tying of the cap string tightly around her neck due to mistake or due to inadvertence, and the medical evidence did not rule out such possibility. 6 We gave our anxious consideration to the prosecution evidence made available through the records and proceedings summoned for the purposes of considering the merits of this application. There is no eye-witness account of the crime. The evidence of PW-12 Smt. Sonabai 3 APPLN.5734-2010.sxw reveals that she was present in the hospital for attending to the newly born child and her mother Savita in the night intervening 13.7.2006 and 14.7.2006; and around 2.30 hours the newly born child started crying, and therefore, she tried to pacify the newly born by patting and tieing cap on the head of the new born. She further deposed that the child steadily and slowly calmed down and fell asleep, and thereafter she also went to sleep. PW 1 Madhuri Chopade, Nurse on duty at the material time, corroborated PW 12 Sonabai on these material aspects. PW 12 Sonabai added that around 6.00 a.m., when she woke up she found the child lying by her side motionless, and therefore, took the child to the Doctor who declared her as dead. According PW-12 Smt. Sonabai, she was suffering from blood pressure and was taking medicines, and at the material time while tieing cap around the neck of the new born, she was drowsy and, therefore, could not make out whether she had tied the cap loosely or tightly. If one reads the evidence in conjunction with the medical evidence revealed through the testimony of Dr. Dattatray Pavale, it is not difficult to find there from the possibility that the new born, like the infant in the present case, can die if cap strings are tied tightly due to inadvertence, and the abrasions can be caused by pressure irrespective whether the same is applied inadvertently. 4 APPLN.5734-2010.sxw 7 The learned trial court, therefore, had no option but to acquit the accused Savita in the said case, particularly when the prosecution had not adduced any evidence on the aspect of motive. The prosecution case that the accused killed the child by pressing the neck, because, she had given birth to a second daughter, is beyond comprehension to accept it as a motive behind the crime. 8 Leave to appeal is, therefore, refused. The application stands disposed off accordingly. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.) 5