Nitu w/o Mangesh Ganvir vs The State of Maharashtra

Challenge is to the judgment and order dated 04-10-2006

passed by the learned Ad hoc Additional Sessions Judge-3, Nagpur in

Sessions Trial 112/2006, by and under which the appellant-accused is

convicted for offence punishable under Section 307 of the Indian Penal

Code (" IPC " for short) and is sentenced to suffer rigorous

imprisonment for four years.

Heard Ms. A.M. Kshirsagar, learned Counsel for the

appellant and Shri V.P. Gangane, learned Additional Public Prosecutor

for the respondent-State.

The case of the prosecution is that between 10-00 a.m. and

10-15 a.m. on 07-10-2005 the accused, pursuant to a verbal altercation

with her husband Mangesh (P.W.1), in a fit of rage, threw her seven

months girl child in the well. As destiny would ordain the girl child

was saved. However, attributing the requisite intention and knowledge

to the accused, she has been convicted for offence punishable under

Section 307 of the IPC.

I have closely scrutinized the evidence on record and,

having done so, I do not find any infirmity in the finding recorded by

the learned Sessions Judge that if not the intention, the requisite

knowledge under Section 307 of the IPC can be attributed to the

accused.

The learned Counsel for the accused Ms. A.M. Kshirsagar

submits that Mangesh, the husband of the accused and the biological

father of the girl child, who according to the prosecution was thrown in

the well, did not support the prosecution. She took me through the

cross-examination of P.W.2 Shakuntalabai, an eyewitness to the

incident, to buttress the submission that the relations between the

accused and P.W.2 Shakuntalabai were not exactly cordial. The

learned Counsel would submit that the defence that the accused was

carrying the girl child who slipped from her arm and fell in the well

accidentally, is more than probablised on the touchstone of

preponderance of probabilities.

Per contra, the learned Additional Public Prosecutor Shri

V.P. Gangane would submit that the evidence of the two eyewitnesses

P.W.2 Shakuntalabai and P.W.3 Ravi Meshram who rescued the baby

from the well, is implicitly reliable. Nothing is brought out in the cross-

examination of the two material prosecution witnesses to shake the

credibility.

The prelude to the incident appears to be an altercation

between the accused and her husband Mangesh. The report is lodged

by P.W.2 Shakuntalabai (Exhibit 22) who is an eyewitness. Her

deposition is consistent with the contents of the first information report

(Exhibit 23). She has deposed that between 10-00 to 10-30 a.m. on

the day of the incident there was an altercation between the accused

and her husband Mangesh. The accused berated Mangesh when he

was about to leave the house. The accused threatened Mangesh that

should he go out the baby will be killed. Mangesh did not heed to the

threats and left the house. The accused brought her child Arati from

inside the house and threw her in the well situated in the premises of

the house. The girl child was rescued by P.W.3 Ravi. The witness is

suggested that the child fell in the well accidentally, which suggestion

is denied. The witness is then suggested that she did not have cordial

relationship with the accused, which suggestion is again denied.

P.W.2, however, admits that she alongwith other neighbours and

parents of Mangesh were not in favour of the marriage. P.W.2 has

emerged from the cross-examination as a truthful witness. There is no

reason to disbelieve her testimony, which is more than amply

corroborated by the testimony of P.W.3 Ravi, who took out the child

from the well. The fact that Mangesh (P.W.1) did not support the

prosecution does not take the case of the defence any further.

The conscience of the Court is satisfied that the accused

did indeed threaten her husband that the baby will be killed and

attempted to do so by throwing her in the well. The finding of the

learned Sessions Judge that the prosecution has proved offence

punishable under Section 307 of the IPC against the accused, is

unexceptionable.

In so far as the sentence is concerned, the case presents a

peculiar dilemma. The seven and half months baby Arati who has

thrown in the well by the accused when her senses were clouded by

blind fury must now be aged twelve to thirteen years. I deem it

necessary to ascertain whether the accused, Mangesh and the child are

living together and the child is being looked after by the accused. The

learned Counsel Ms. A.M. Kshirsagar, who is appointed to represent the

accused, is not aware of the present scenario. Before I decide on the

quantum of sentence, I deem it appropriate to direct the Station

Officer, Ajni Police Station, Nagpur to produce accused Nitu Mangesh

Ganvir, husband Mangesh Rajaram Ganvir (P.W.1) and Arati Ganvir

before this Court on 16-2-2018 at 2.30 p.m.

PW 1 Mangesh Ganvir and Arti Ganvir are present in the

Court. I have personally interviewed Arti and PW 1 Mangesh Ganvir.

Arti is studying in the 7th standard in Dinanath High School, Dhantoli,

Nagpur. Her father Mangesh Ganvir is a waiter in a hotel. According

to Arti, she is being looked after well by both Mangesh Ganvir and the

accused. Arti, Mangesh Ganvir and the accused are residing together at

Kailash Nagar, Nagpur. Both Mangesh and Arti vouch for the good

behavior of the accused since the fateful day. Arti, who is 12 years old,

is in dire need of motherly care, love and affection. Her father, due to

the nature of the job, is likely to be working at odd hours. The

incarceration of the accused would in a way be a punishment for Arti.

If Arti is deprived of the presence of her mother to nurture and guide

her in the teens, it is quite possible that her physical, psychological and

emotional growth shall be adversely affected. I have already noted,

that the duty of imposing sentence, in the facts of the case, presents a

peculiar dilemma. Blinded by anger due to a quarrel with Mangesh,

the accused threw her 7 ? month old baby in the well. By the grace of

god, the baby survived and is present in the court today.

The fact that the accused was overcome by rage and that

her faculty of rational thinking was numbed is certainly not a

mitigating factor. However, only looking at the interest and welfare of

the 12 year old girl who is the victim who survived the act, I am

inclined to take a lenient view from a humanitarian perspective.

In the result, while I maintain the conviction of the accused

under section 307 of the Indian Penal Code, the sentence of four years

rigorous imprisonment is altered to detention already undergone.

However, Arti and the accused both shall report to the

District Probation Officer, Nagpur once in a month with a copy of this

judgment and order, for the next six months. The District Probation

Officer shall interview Arti and satisfy himself that she is being looked

after well by the accused. The District Probation Officer is directed to

submit a quarterly report in the Registry of this Court regarding his

findings or observations, if any, on the treatment received by Arti.

The appeal is partly allowed and disposed of, in the above

terms.