Vs. State of Maharashtra  Insc 304 (25 July 2002)
Lahoti, Brijesh Kumar. R.C. Lahoti, J.
Additional Sessions Judge, Nanded has held the accused-appellant guilty of
offences punishable under Sections 302, 201 and 506 of the Indian Penal Code.
He has been sentenced to rigorous imprisonment for life with a fine of
Rs.1000/-, in default to suffer rigorous imprisonment for three months under
Section 302 IPC. He has been further sentenced to suffer rigorous imprisonment
for six months and to pay fine of Rs.500/-, in default to suffer rigorous
imprisonment for one month, under Section 201 IPC. He has also been sentenced
to suffer rigorous imprisonment for three months under Section 506 IPC. All the
substantive sentences have been directed to run concurrently. The
accused-appellant challenged his conviction and sentences before the High Court
of Bombay, Aurangabad Bench but unsuccessfully. The present appeal is by
to the prosecution Sonerabi, PW-5 was married to one Mehboob (not examined as a
witness in the case).
15 days of the marriage it was found that Sonerabi was pregnant. Mehboob got Sonerabi
medically examined. She was found to be in an advanced stage of pregnancy. She
admitted to have conceived from Syed Gani, the accused-appellant who was
related to her and was often visiting her prior to marriage. The
accused-appellant was called by Sheikh Mehboob. After mutual discussion it was
agreed that the marriage between Sheikh Mehboob and Sonerabi would be dissolved
by Sheikh Mehboob giving Talaq to Sonerabi. That was done. A Nikah (marriage)
was thereafter performed between Sonerabi and accused Syed Gani at village Anmal
and Sonerabi started living with Syed Gani.
months after the date of the marriage with the accused- appellant, Sonerabi
delivered a male child. However, the accused-appellant insisted on Sonerabi
killing the child to which proposal Sonerabi was not agreeable. On 9.7.1994 in
the morning at about 5
a.m. at village Tandala
the accused- appellant killed the 15 days' old child by pressing the child's
neck and pulling his leg in the presence of Sonerabi. The accused threatened Sonerabi
to observe silence and not to disclose the incident to anyone else otherwise
she would also be killed in the same way. The dead body of the child was buried
by the accused proclaiming that the child had died a natural death.
dead body of the child having been so disposed of, Sonerabi went to her
parents' house in village Anmal and there she disclosed the incident to her
brother, Syed Roshan, PW6, who lodged first information report of the incident
on 10.7.1994 at 10 p.m.. The FIR, Exhibit 27, was recorded
by Ashok Vishwanathrao, P.S.I. Crime under Sections 302, 201 and 506 of the IPC
was registered and investigation commenced. The dead body of the child was
exhumed in the presence of Naib Tehsildar and sent for post-mortem examination.
PW1 who performed the post-mortem examination found the dead body of a male
child about 15 days old. The height of the child was 1 feet and 3 inches and
weight was 2.5 kgs. The body was found to have sustained two ante- mortem
injuries, namely, contusion 2 inches x 1 inch in front and side of neck below
skin and another contusion 2 inches x 1 inch in front of chest. Haemorrhage was
present with both the injuries. The injuries were grievous in nature and were
ante- mortem. Sternum in front of chest wall ribs were fractured.
chest wall was haemorrhagic and congested. The cause of death, in the opinion
of Dr. Jairam, was cardio-respiratory failure due to throttling and chest
most material testimony in support of prosecution is of Sonerabi, PW5 who has
on her personal knowledge deposed to all the events and incidents constituting
the prosecution case in very many details. She has been cross-examined at
there is nothing to shake her. She has remained consistent and firm throughout
her statement. The child has been killed by the accused by throttling in her
presence. When she tried to raise a hue and cry she was threatened by the
accused by saying that if she disclosed the incident to anybody else she would
also be killed like the child. The dead body was then disposed of by the
accused by burying the same.
statement of Sonerabi finds general corroboration from the statement of her
brother, Syed Roshan, PW6 who had lodged the FIR and from the nature of the
injuries found on the dead body of the child. Syed Roshan has also deposed to
the factum of Talaq (divorce) between Sheikh Mehboob and Sonerabi. Nikah
(marriage) between Sonerabi and the accused was performed in the presence of Syed
suggestion given in the statement of Sonerabi during the course of her
cross-examination is that some heavy object had fallen on the child which had
caused his death. However, it is difficult to believe why Sonerabi would
falsely implicate her own husband and the person from whom she had conceived
and delivered the child if only the child had died an accidental death.
urged by the learned counsel for the accused- appellant that the Talaknama said
to have been executed between Sonerabi and Sheikh Mehboob, the previous husband
of Sonerabi has not been produced and Sheikh Mehbood has also not been examined
by the prosecution which causes an infirmity in the prosecution case. It would
have been better if the Talaqnama would have been produced and Sheikh Meboob
also examined to corroborate the prosecution case. However, from this much
alone the prosecution case cannot be doubted when the material part of the
prosecution case formulating the gravamen of charge is found to have been
substantiated by the testimony of Sonerabi and other prosecution witnesses.
Trial Court and the High Court have dealt with the testimony of all the
prosecution witnesses and found the prosecution case proved beyond any
reasonable doubt. Having heard the learned counsel for the accused-appellant
and for the State at length we are not inclined to take a different view. No
fault can be found with the judgments of the Sessions Court and the High Court.
The conviction of the accused-appellant along with the sentences passed thereon
are upheld and the appeal is dismissed.