The appellant challenged conviction for culpable homicide not amounting to murder regarding the death of his two-year-old daughter. The High Court upheld the trial court's judgment, rejecting claims of provocation and dismissing medical defense evidence as false.
The criminal appeal stood dismissed as it was found devoid of merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
965-15-Apeal.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 965 OF 2015
Sunil Dhanaji Kante .. Appellant
v/s.
The State of Maharashtra .. Respondents
Mr. Shantanu Phanse, Legal Aid Counsel for the appellant
Mr. A.A. Palkar, APP for respondent State
CORAM : PRITHVIRAJ K. CHAVAN, J.
DATED : 20th FEBRUARY, 2020
P.C.
1.The appellant challenges a judgment and order of conviction
passed by the Additional Sessions Judge, Kalyan in Sessions Case No.
278 of 2012 wherein he has been convicted of an offence punishable
under Section 304 Part II of the Indian Penal Code and has been
sentenced to undergo rigorous imprisonment for 10 years with fine
of Rs. 2,000/- in default simple imprisonment for one month.
Digitally signed by UDAY UDAY SHIVAJI SHIVAJI JAGTAP Date: JAGTAP 2020.06.02 19:36:49 +0530
2.Before adverting to the facts of the case, it is pertinent to note
that the appellant who is undergoing sentence has forwarded a
handwritten application dated 20.01.2020 addressed to the
Superintendent of Nashik Central Prison, Nashik stating therein that
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he does not wish to prefer any appeal against the conviction and
sentence passed by the trial Court as his sentence is to be completed
within 3 to 4 months. It seems that the appellant does not wish to
prosecute the appeal, nevertheless the appeal has to be decided on
merits and, therefore, this Court has appointed Advocate Shantanu
Phanse as an amicus curiae to represent the appellant, who has fairly
agreed to do so.
3.The complainant is the wife of the appellant. They were
residing at Mahalaxmi Nagar in front of Someshwar Mandir,
Ambernath. Their marriage was solemnized in 2009. The
complainant delivered a girl child. The appellant was addicted to
liquor and gambling and because of his bad habits he had sold gold
ornaments of the complainant gifted by her parents. On that count,
there were frequent quarrels between husband and wife and the
appellant always used to ill-treat and harass the complainant. The
complainant, therefore, started residing with her parents. However,
the appellant took her back again for co-habitation on 20.05.2012
due to the mediation of her sister-in-law and her husband. However,
there was no change in the behavior of the appellant and he
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continued to insist upon the complainant to bring money from her
parents.
4.On the fateful day of 15.06.2012 at about 12.00 noon the
incident in question took place. The complainant was at her home
along with the appellant and daughter Gauri, who was then 2 years
old. Gauri was reluctant to go to the appellant due to fear.
However, the appellant inflicted fist blows on her abdomen. Again
on the same day, at about 5.00 p.m. the appellant wanted to take
Gauri. However, Gauri was not ready to accompany with her father.
Enraged by such response of his daughter, the appellant banged her
head on the wall. He had again inflicted blows on her stomach. The
small child of 2 years could not bear such blows on the vital part and
fell down. She was motionless. The appellant again inflicted kicks
and fist blows to the small child when she fell down. As the child
was not making any movements, the complainant and the appellant
took her to Ashwini Hospital, Ambernath in a rickshaw. The doctor
in the said hospital advised to take her to the hospital of Dr. Lapsi.
At the hospital of Dr. Lapsi, one compounder advised to take her to
another hospital. On their way to the hospital, the complainant met
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her sister-in-law’s husband. Thereafter, Gauri was taken to the
hospital of one Dr. Mahajan and as per the advise of said doctor, they
again took Gauri to the Central Hospital, Ulhasnagar where the
doctor on examination declared her dead.
5.The relatives of the complainant and the appellant were
informed about the incident and a report came to be lodged with the
police station. An Offence bearing No. I-72 /2012 came to be
registered against the appellant under Section 302 of the Indian
Penal Code. The Investigating Officer, after completing the
investigation filed charge-sheet before the Judicial Magistrate First
Class, Ulhasnagar.
6.After committal, the learned Sessions Judge framed a charge
against the appellant under Section 302 of the Indian Penal Code
vide Exhibit-4. The appellant pleaded not guilty and claimed a trial.
In support of his case, he examined Dr. Mohanish More DW-1 as
according to the appellant, Gauri died due to diarrhea and that he
did not assault her either by kicks and fist blows or banging the head
on the wall.
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7.The prosecution examined 8 witnesses. The learned Additional
Sessions Judge after going through the evidence of the prosecution
witness and hearing the respective sides, held that due to grave and
sudden provocation, so as to say, the daughter did not respond to the
appellant when he tried to take her, he got enraged and in a fit of
anger he lost his control and assaulted Gauri by kicks and fist blows
on her abdomen and banged her head on wall. Thus, the learned
Additional Sessions Judge in her wisdom, found the act of the
appellant as one of the culpable homicide not amounting to murder,
and, therefore convicted him under Section 304 part II of the Indian
Penal Code.
8.The important witness is the complainant – mother of the child
PW-1 Meenakshi Kante. Her evidence reveals that on 15.06.2012 at
around 12.00 in the noon, Gauri was reluctant to go to the appellant
as she had some apprehension which was quite obvious in view of
the fact that the appellant was habituated in consuming liquor. She
testified that due to the reluctance of Gauri to go to her father, the
appellant started inflicting fist blows on her abdomen. He again
inflicted blows at 5.00 p.m. when Gauri refused to go to him. It
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seems that on the same day, on two occasions, the appellant had
assaulted Gauri with fist blows on her abdomen which is a quite
strange and unusual act of the appellant. The evidence of PW-1
Meenakshi reveals that he had banged her head on the wall due to
which Gauri fell down on floor. The appellant did not stopthere but
again started inflicting fist blows on the person of Gauri, which
ultimately resulted in stopping her movements and perhaps she
might have became unconscious or probably could have succumbed
to the fist blows on the vital part of her body.
9.By no stretch of imagination, it can be said to be an act
resulted due to either grave or sudden provocation to the appellant
by his 2 years old daughter Gauri. This is not a case less than 302 of
the Indian Penal Code. There is absolutely no reason to disbelieve
the unshattered testimony of PW-1 Meenakshi, who is the mother of
Gauri and the only eye-witness. It is quite shocking and surprising as
to how one after the other hospitals where Gauri was taken by the
appellant and PW-1 Meenakshi, either refused to treat her or even for
that matter, DW-1 Dr. More had gone to the extent in falsely deposing
that Gauri had a history of diarrhea and vomiting as narrated by the
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appellant. As a matter of fact, the falsity of the testimony of DW-1
Dr. More is apparent in view of the fact that neither he had treated
Gauri for diarrhea or vomiting nor did he prepare any case paper or
brought any record to substantiate his testimony that Gauri was
suffering from diarrhea and vomiting. His clear admission during
cross by the prosecution that he did not document any of the ailment
as stated by him on oath, itself is sufficient to infer that he gave false
evidence in support of the appellant.
10.The testimony of DW-1 Dr. Mohnish More has been totally
falsified by PW-4 Dr. Harshal Gawayee, Medical Officer, attached to
General Hospital, Ulhasnagar to conduct autopsy on the body of
Gauri.
11.The evidence of PW-4 Dr. Harshal Gawayee reveals that on
16.06.2012 the dead body of Gauri Sunil Kante, aged 2 years was
brought to that hospital with an inquest panchanama for
postmortem. The relevant portion of his evidence reads thus :-
“He has described the injury nos. 1 to 9 which were external
injuries found on the dead body and the corresponding
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internal injury nos. 1 to 4. Accordingly he has issued the post-
mortem report which is produced on record at Exh.18. As per
opinion of the witness, cause of death of the deceased i.e. of
head injury and injury to the brain. He further deposed that,
injury nos. 1 and 2 described in column no.17 and all internal
injuries total six are sufficient to cause death of the girl. He
further deposed that, the injury nos. 1 and 2 can be possible by
banging against the wall, rest of the injuries are possible by fist
and blows. He also found injury to the external genital organ
and therefore he preserved vaginal swab but as per his opinion
the same injury can be possible by fist and kick blows.”
12.A careful examination of the testimony of PW-1 Meenakshi vis-
a-vis the testimony of PW-4 Dr. Harshal Gawayee which corroborates
each other, would clearly indicate that there were more than 9
external injuries and 4 internal injuries to the dead body. It has been
clearly opined by PW-4 Dr. Harshal Gawayee that death of Gauri was
caused due to injury to the brain and the same can be caused by
banging the head on the wall. There is absolutely no reason to dis-
believe the evidence of the Medical Officer which corroborates
materially and substantially to that of the testimony of PW-1
Meenakshi.
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13.A false defense has been raised that injury no. 1 and 2 can be
caused if a child falls on the floor from a height. However, no such
defense has been raised by the accused during cross that Gauri fell
down and sustained injuries. Rather, it was the defense that Gauri
died due to diarrhea and vomiting. It cannot be lost sight of the fact
that Gauri died in the custody of the appellant and her mother. Her
mother PW-1 Meenakshi, however, has narrated the truth on oath
before the Court and there was no reason for her to implicate her
husband falsely in view of the fact that the appellant had always
been treating the victim and his wife with cruelty due to his habits of
gambling and consuming liquor. It was for the appellant to explain
as to how his daughter aged about 2 years died in such unnatural
circumstances having found with as many as nine external injuries on
her person. Non-explanation on the part of the appellant would
indeed result in drawing an adverse inference against him. It is not
the defense that there was someone else in the house. It has been
proved beyond the reasonable doubts that it was the appellant and
none other who is the author of all those injuries on the person of the
victim. According to PW-4 Dr. Harshal Gawayee, the cause of death
of the deceased was due to the head injury and corresponding injury
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to the brain. According to him, injury no.1 and 2 described in
column 17 and all internal injuries which were 6 in number, are
sufficient to cause death of Gauri. He categorically opined that injury
nos. 1 and 2 are possible by banging the head against wall and other
injuries are possibly due to fist blows.
14.There is no effective cross-examination either of PW-1
Meenakshi and PW-4 Dr. Harshal Gawayee. There is no reason to
disbelieve the well corroborated testimony of these two witnesses
coupled with the inquest panchanama and testimony of other
witnesses.
15.PW-5 Prashant Koyate has proved spot panchanama at Exh.
20. The photographs at Exh.24 to 31 taken by PW-6 Ajit Kumar
Singh speaks volumes which needs no further explanation.
16.A delay of 6 to 7 hours in lodging the report with the police
cannot be viewed with suspicion in view of the fact that Gauri had to
be taken to various hospitals from one place to other and made to
run from pillar to post, which had consumed considerable time and
thereafter since it was the appellant who was the author of those
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injuries, perhaps might be the reason to approach the police a bit late
which is quite obvious in the peculiar facts and circumstances of the
case. The case cannot be thrown overboard merely because there
was a delay of few hours in lodging the report.
17.There is no question of any after though or embellishment as
the evidence adduced by the prosecution is quite cogent, trustworthy
and inspires full confidence proving the complicity of the appellant in
committing the offence of causing homicidal death of his daughter. It
is quite obvious as is evident from the testimony of the Investigating
Officer and other witnesses that it took time in carrying the victim
from one hospital to other hospital and the treatment availed of and
for completing the other formalities. As such, the so called delay is
not fatal to the prosecution's case.
18.There are no material contradictions or omissions on record.
The learned defense counsel tried to bring on record certain
contradictions and omissions which are, per se, not connected with
the incident in question but relate to the previous instances which
had occurred prior to the incident. Thus, the contradictions and
omissions are insignificant in so far as the present facts and
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circumstances are concerned. Even the statement of PW-1 Meenakshi
under Section 164 of Cr.P.C. corroborates her testimony before the
trial Court.
19.The findings arrived at by the learned trial Court while giving
the benefit of a lesser sentence on account of absence of motive on
the part of the appellant is perverse as the learned trial Court has
failed to appreciate the evidence of PW-1 Meenakshi and PW-4 Dr.
Harshal Gawayee in its correct perspective. It cannot be said to be a
case of grave and sudden provocation to her father twice in a day
i.e. around 12.00 noon and 5.00 p.m. in the afternoon, which
prompted him to assault his own blood with kick and fist blows and
banging her head on the wall, resulting into the death of Gauri. The
findings of the learned trial Court are contrary in the sense that on
the one hand it is observed that refusal on the part of Gauri to go to
her father had resulted into a provocation but on the other hand, the
learned Judge observed that the appellant is a man of short temper
and had expressed his anger by assaulting his daughter in a cruel
manner by inflicting kicks and fist blows and banging her head on
the wall. Such findings merits to be laughed at and wept over at one
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and the same time.
20.Unfortunately, the State has not preferred any appeal against
the judgment and order of conviction. Be that as it may, it is quite
apparent from the facts, circumstances and the evidence on record
that the appellant committed the act of inflicting kicks and fist blows
and banging the head of Gauri on the wall with a knowledge that it
was so eminently dangerous that, it must in all probability, cause
death of Gauri or such injuries might result into her death.
21.Before parting with the judgment, the act and attitude of DW-1
Dr. Mohnish More deserves strong condemnation, as shockingly he
had given false evidence on oath in support of the appellant that
deceased Gauri was suffering from diarrhea and vomiting. Falsity of
his evidence is apparent as already discussed hereinabove, he did not
document any papers to that effect. Such an act on the part of
DW-1 Dr. Mohnish More needs to be dealt with in accordance with
law by the prosecution, who is directed to report about the conduct
of Dr. Mohnish More to the Medical Council of India as well as the
State Medical Council. The concern authorities shall promptly
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initiate legal action in accordance with law and shall submit a status
report before this Court within a period of six months from the date
of pronouncement of this judgment. Such status report shall be on
affidavit and the authority shall not unnecessarily seek further
extention.
22.Having considered the entire circumstances and the facts on
record as discussed supra, I am of the view that no interference is
called for in the impugned judgment and order of conviction.
Consequently, the appeal is devoid of merits and hence stand
dismissed.
(PRITHVIRAJ K. CHAVAN, J.)
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2 issues framed by the court
Whether the High Court should interfere with the trial court's conviction and sentence under Section 304 Part II IPC in a case involving the death of a 2-year-old child.
Whether the finding of grave and sudden provocation constitutes a perverse inference against the accused who inflicted fatal injuries on his minor child.
Colour shows how this judgement treated each authority
Section 164 of Cr.P.C.Referred¶74
1 provisions across 1 enactments
Sunil Dhanaji Kante
The State of Maharashtra
Prithviraj K. Chavan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court