T^ HIGH COURT OF CHHATTISGARH : BILASPUR \ Coram : Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. APPELLANT (In Jail) RESPONDENT Cr.Aopeal No. 605 of 2005 Indrakunwar, D/o Ramsingh, aged about 35 years, resident of Sunderpur, Police Statjon Sonhat, Dist. Koriya (C.G.) Versus State of Chhattisgarh Through Police Station, Sonhat, Dist. Koriya (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE. 1973 Appearance: Smt. Savita Tiwari, counsel for the appellant Shri Ashish Shukla, Government Advocate forthe State ORAL JUDGMENT (Delivered on 20.04.2010) The following judgment was delivered by T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 04.07.2005 passed by Additional Sessions Judge, Baikunthpur, Dist. Koriya in Sessions Case No. 525 of 2004 whereby and whereunder after holding the appellant guilty for the commission of culpable homicide amounting to murder of her newly born child, the Court below convicted the appellant under Section 302 ofthe I.P.C. and sentenced to life imprisonment and fine of Rs.1000/- and in default to undergo further Rl for three months. \'.: 2. The conviction is impugned on the ground that without-any clinching and credible evidence sufficient for conviction of the appellant, the Court below has convicted and sentenced the appellant as aforesaid and thereby committed illegality. ^ t- 3. Brief case of the prosecution is that the appellant was having illicit relation with Baiga Gond, a^'a result of which, she conceived and she was carrying pregnancy. On 14.09.2004 she gave birth to a child and after her delivery she killed her child and thrown the dead body in one small pond. The matter was reported vide Ex.P.2 and merg was recorded vide Ex.P.1. Investigating Officer left for scene of occurrence and prepared spot map vide Ex.P.4. Inquest over the dead body was prepared vide Ex.P.5 and dead body was sent for autopsy to Government Hospital, Sonhat where P.W.11 'lf. Dr. Divya Rani Tigga conducted aytppsy and found the following injuries: 1. Both eyes were protruded. 2. Nose was found depressed and mouth was ruptured. 3. Tongue was protruded. 4. Right forehand was fractured. Death was homicidal in nature. 4. The appellant was'also examined by Dr. Divya Rani Tigga P.W.11 vide Ex.P.10 and after examination she found that the appellant gave a birth to a child within one week prior to the date of examination i.e. 15.09.2004. 5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short 'the Code'). After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Koriya who in turn committed the case to the Court of Sessions, Ambikapur. Learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellant, the prosecution examined as many as 11 witnesses. The accused / appellant was also examined under Section 313 of the Code where she denied the circumstances appearing against him and innocence and false implication was daimed. In her State under Section 313 of the Code, the appellant has explained the circumstances that she was conceived through one Baiga Gondwho tried to cause abortion and miscarriage and- administered the medicines for miscarriage and on her refusal he pushed her in a small pond (Dabri) where she fell down and miscarriage took place. 7n i 5 7. After affording opportunity to the parties and after appreciating the evidence available on reCQrd, the learned Additional Sessions Judge convicted and sentenced the appellant aforesaid mentioned. 8. We have heard learned counsel for the parties at length and perused the record ofthe Court below iacluding impugned judgment. 9. Counsel for the appellant vehemently argued that the appellant has admitted her illicit relation with Bp/g'a Gond and has explained in her statement under Section 313 of the Code that Baiga Gond has tried for miscarriage and on her refusal he -pushed her into a small pond where she fell down and miscarriage took place thereby she has explained the circumstances that she tias not committed the murder of her newly born child and due to fall into that pond the child has died in the womb. 10. On the other hand, learned counsel for the State opposes the appeal and submits that the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant has committed homicidal death ofthe newly born child after delivery. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. In the present case, the appellant has not admitted the homicidal death of her child whereas prosecution has examined Dr. Divya Rani Tigga P.W.11, who conducted autopsy and examined the appellant, has deposed in her evidence that she found fracture of right hand, nosewas depressed, mouth was ruptured and tongue and eyes were protruded and in her opinion the child was born after some days before completion of 9 months and the death was homicidal in nature. She has also examined the appellant and found that she has delivered a child. In her evidence in paragraph 8 she has admitted that she has not mentioned the fact that death of child occurred before birth after birth but the fact remains in paragraph 3 of her evidence that child has died as a result of injuries, as mentioned in paragraph 3, shows that the death was homicidal in nature and inju'ries were caused after birth of child and not before the birth 6f child. 12. As regards the complicity of the appellant in crime in question, as per evidence of Jai Mangal Singh P.W.1, Suraj Kumar Singh P.W.2, Rambaran IBtSt^, •^K'"^ ' ^ ^ 1 Singh P.W.3, Smt. Ramjh^lki P.W.5 and Smt. Birhulia P.W.6, the appellant has offered explanation that she was pregnant but when dead body of child was recovered she was asked by the witnesses whereupon she offered explanation before them that the child does not belong to her. The evidence of the above witnesses is sugicient to establish that the appellant gave a birth to a child and that child was found dead, as a result of homicidal death. She has offered false explanation on being asked by the prosecution and even in Section 313 of the Code. Thus,?this evidence is sufficient to establish the fact that she was the person wh'o'committed the homicidal death of her child on account of illicit relation. 13. After appreciating the evidence available on record, the learned A.S.J. convicted and sentenced the appetlant under Section 302 ofthe I.P.C. 14. On close scrutiny of the evidence, the conviction of the appellant is credible and clinching iri nature and the Court below has not committed any illegality and infirmity in the impugned judgment. 15. We do not find any substance in this appeal which is liable to be and is accordingly dismissed. Sd/- Sd/° L- -ftaawar T^.Sha^ma Judge judge i 5v^~ ^