•••——e—sBB^s'^BBn ^ .^.a IH SHE HON'BLE^.HIQH GOtrBT 0E JBSIC&KJRE AT BIL&SEBRr eHHaTTISe&RH^^ | Aap.fflA.&NE., {.XS 3A3S),, QC.&SBEKL SO. '>.^'^- ^ /2001. Noosir Bal, aged Sbout 23 years, daugh'fcec of Prdbhu fiSra resi&nt ofvillage Ifeka-tipaca, ; I-ijaaudih, P»S..Beoadi, Distt. Durg(=i%Gi.). 'B&rsus. .' ' . StSite of ea-ifaatfcisgarh, Throi^h the Sis-fcrlst Magistrate Ourg, G.p. V SESS'OSDBSS^ GRIMIH&S .&3 B&&_BIg®R_SBen^_374' eRIl!'[E:N&Ia 1 ssocssass leGBlB.i:®'^1:1 1«PE^ XI-HC-78 ^^ liMjl£«'HW>'*11<n ^'!"WI(ffllaiy»tflwi,®{T(»?ll<!t^< __€--•^^^-7711 ^" ff^ yQ P?T;B^(-;yF wi?r^'Sfsvwi'- cPfT 311^1 »»iiq, "S^l '^ Tr^R'fP FfTrT"'H.51T?7 TStTK; •aT^K. ;,-ST<ITW Hf?cT 3n^r| t>ivision Bench: | Hon'ble Mr. Justice !L.C. Bhadfro & Hon'bis M_r. Justjce jbhi'rendra Le^kvy 22.2.2007 1 Mrs. Usha Charidrakar, . Mr. Akhil Mish<'a, Panel Oral Judgment Uictated or^ i Per L.C. Bhadoo. J.l This appeal is iJirected a^ order of sentence dated 15 Sessions Judge, Balod, Oistrict^ whereby the Additional accused/appellant gu Ity for 302 & 318 of th4 I.P.C, imprisonment for lifejA R.I. for & Rs.100/-, in defauil; of pcr/meiti irr.prisonmenl- for si^ months sentences have beep d[rec+ed cccused namely Rami^ishuffl alia; under Section 109 resd with Advocate meitit * Se<tt TS'?!' WqfeftT WRtt'if fei4 rffTfSTl-^gri^a^j Mishra. JJ for the oppelianlj WT for the State. Dais. the Selssions undir a^ainst the judgment of jTune, 2001 passed by Durg in Sessions Trial Judge after ccjmmission of offance sfentenced her to one year and to pay a fi> of fine to further one months respectivfe to run concurrentty. Khorva was acquitted tion 302 of the I.P.C. under WITaiTW '??!TS 7f)%TC?n:£W? conviction and Additionai jNo.253/2000 hoiding the uijider Sections ne 'go ngorous of Ks.500/- 'go ngorous ly. 3oth the IHowever, co- of the chcrge l^^^st- ^ »7>'. ^^1 iy^f^ ^;': i: l;/'i: :1 ! '.}• !:^1 ^ tt P.T.O. XI-HC-78 T^!'i-a(n!<igiai9'its>iB'yitiB^(Ri;<ii'y^< fms^P^iT^"""""""•"i!srwsw^ (Qs^sif-w^f^ ^•f^'yus^) STI^T'TOlA'ji'i'? tWTSIT^TsbHich ?sl u T^HTB FI1IRTF1';? i rtffE- FR?T5 ,*ST<ITW: Hf?(T 3f1^Ti The case of th^ prosecu" Naresh Kuma" (PW-4^ lodged a about the death of unknown nevij that or, 17.5.2000 Marieshwari newly born baby' is l^ing behind branches of tree. BasAd on this iil Biti was registered, Shri p'.P. Kat ^! Police Station t)on<^a exarhination prepared the inquest on the dea<) was sent for postincirtem Centre, Oondi, wher^ &r. L. postmortem examinati<j>n and pre| i that, F.I.R. (Ex.P-6) *as regist^r medically examined, her clothes | same were sent for cihemical ej< Laboratory, Raipur froip where After completioip of usual against the accused pe^-sons in ; Class, Balod, who in tu^n Durg from where the ^dditional on transfer for trial. T|ie prosecijtion rebort thle committed »hi<iTci41-<wraf ff fei^t ifesRr^ 'i'eyiTE ^-?S •^!frf!,Tfff^ g^^- g^yl ^Tu^,^^ .r^ [wn, in brief, is that qn 18.5.2000 report in the Police Sfration Dondi jly born baby. He furtKer informed B^i informed hinn that deiStd body of a ! the gar-den covered w th leaves & ii^iformation, Merg Intimation (Ex.P-5) i+halit (PW-11), Stction House Officer, givir^g "otice (Ex.P-6) to |-he Panchas body of newly born baby, the same i to the Community' Haalth L. Markendya (PW-7) conducted iared the report Ex.P-12. Based on sred. Accused Nausir Bai was also |stained with blood werelalso seized, t ^amination to the Forehsic Science 1 Ex.P-20 was receiv4d. i |nvestigation, charge shget was filed ! Court of Judiciai Magistrate First the co.se. to the Sespions Judge, i ^essions Jud9e has received the case in order to establisfi the charge 1 i P.T.O. ^7, ^ ;f ^. XI-HC-78 [fW-fW IdiSl^tfiWWi, ufsM 1^. -3H-.l^' 'HfflWhSh^lcft • F'il^^tiq^ att^riWfei'N;? iWTari^rgiTri^ ^(TIWHfgtTSn^ -^ that courfse against the accused pe^sons exarr^ ) of accused persons weije recordecf which they simply denied the ma'i prosecution evidence and stated falsely impiicated in th^ crime. After hearing Idarned perusa! of the record,| tearned and sentenced accusedl Nausir B( i co-accused Ramkishun dlias Khorvci, We have heard Mrs. U^ accusad/appeliant and ff[r. Akhil A'f Learned counsel for the 1 no evidence that the baby died (i i aiive. Tne hydro test| of lungs other eyidence to estat}lish that the niurder of newiy bom baby^ believed that the occused/appel time, then also there is no newly born baby, which was founcf) the baby delivered by the accuse^ ac<tu +i'iiFd<fl-< wcRfr' ^'fs^f. dsiTSR' :??-T£HglFi ^cffi?%3l1^R'3r[^TiTr/!'PST: ined eieven witnesses. Statements under Section 313 of the Cr.P.C. in er-ial appecring against ri+iem in the •t+sey are innocent anjd have been for the respective parties and s ^dditional Sessions Judge convicted i, as aforementioned and acquitted ^ha Chandrakar, counsgl for the ishra, Panet Lawyer for the State. ised/appellant argued that there 'is homicidci death and sanae was born Ih'as not conducted and ithe is no tfie accused/cypellanl- ha^ commjtted <..»!".*' She aiso argued tha'l' even«^ is 114it gave birth to <x child during that evidei|ice to the effect that the body of f in the forest nsar the pond, was of ieflant. i c^/oppt ^7 <y^) ^b7s ' . ^' ^ ! W \] P.T.O. 'v; XI-HC-78 3?? '<<l<)ld<), tSTtiy'K?, Rldiy^ W^^rTSbHlch ^; 200 3ll^l qach (ll,cl'd'sf^!ir) sn^T^TfeN; (iW3n^istiti ^RITWHf^cTSTI^T <-f/ whefrher tHe On the other hand, lean supported the judgmerit of trial co|jrt. As far as the question which was found near the pond, ^ homicidai death is coneerned, Dr. thdt on 18.5.2000 he conducted born child, he found depressed •f] and contusion on brain of that chil stated that cause of death was sH of head injury. His report is Ex.P-| Therefor-e, in view of the born baby, body of which was foun^l PW-1 &r. [Smt.3 Shas^ji accused/appeilant, has categoricai wound in the vaginal part of accu; the size of 2cm x i-cm x 2mm, in. was ruptured. The above injur^ delivery. Vagina was loose, womb pressing ths breast milk was from tne womb. In the that 'it is incorrect to say that Na(jsi «t)l<<f<?]<f)-i 11^dT^'feL<rl <R)'WK ^73i1^ir3n^r Panet Lawyer for tiie State ayove 1+ie body of newiy bom baby, hos born alive and he met with the L.L. Marendaya (PW-7) has stated postmor'tem on the body of newly jracture on 1+ie head, haemorrhage d. In para-8 of his evidence he has ock due to haemorrhage as a result |l2. ;, it is established that the newty near the pond, was born alive. Claudius, who examined the |y stated that there was a iacarated |ed in 6 clock position, same was in ury was 7 to 14 doys old and hymen can be occurred at 1+ie time of \vos of 10-12 weeks and was soft, on out and lochia was coming out this witness has stated iir Bai had not delivered tiie chiid. cofping cross-elxamination ?^s? *?)'1 y •; ^^7. ^: ^ P.T.O. XI-HC-78 sn^Tan'R-fich ;WT an^T SWRi s^' •^i^ici'ii, s'Tfl'M'ie, Rnitiy *IT*«TT^qT^ ^; 200 Sii^i 4a<*> (liciysi'^i£T) ?R(Tw^rfi((3n^r -<\ ab<tye Therefore, from the that Nausir' Bai had delivered a Now the question remcirjs found near the bond, was of th|e child, which was deliyersd b) connection, Naresh Kumar (D1/ persons are residing in his nei^! villagers that a body of newly which he along with villagsrs w|ei pond, and saw that the body of and the same was covered with] was dead and there was blood that clothes of Nausir' Bai werel evidence of PW-5 Arjun Singh. she went to ths pond to take Nausir Bai was a\so there, her enquired from her about the not reply and thereafter she w^i Sai (PW-8) & Fagni Bai informe< the forest. PW-8 Kunwar Bai born baby was lying between chl<l[cl<fl-( *11*inT^''f3c^<Rl<-dl< ^srf^nsn^r medical evidence it is established shild. 1+ict whether the child. which was ^e accused/appellant and secondly, ths ^•the appe!!ant,wcts alive. In this |A'-4) has stated that the accused i^hbourhood, he was informed by the |3orn baby was tying in the forest, on ^ent to the place, which was near the ^i newly born baby was lying in a basket leaves &. branches of tree. The body lon the head. He has further* stated seized in front of him. Similar is the PW-6 Maneshwari Bai has stated that about 12 in the noon, at that time lclothes were stdined with blood, she stains on her clothes but she did snt to her house. Thereafter, Kunwar her about the body of a dead child in ^as aiso stated that a body of newly |the bushes. Therefore, there is no P.T.O. bbth bjood ^ r>7>- IX^. '\^ :.J.: k Yf" ';: ] 1 % 1 1< 3:j XI-HC-78 ^/o 'ssi -^ww^, wS'ww, (siciwy *11*IWI sh*ll<h ^ 200 3)1^1 4a<*> (ijql^S)^) 3n^r?irl^iw (raraii^isbtii* :hiU'.-'- ?RITWfl1?ff3H^T ocular, airect or circumstantial e the body of newty born baby, wh ch was recovered from the forest near the pond, was of the cfr| accused/appetlant. As such, we ar^ of the considered opinion that the pr'osecution has utterly failed to 4stablish the fact that the body of 'newly born baby, which was found appellant, the same w<as kept by iiab!e to be set asids. In the result, the appea! imposed upon appellant-Nausir Ba 64 years, therefore, she be set at any other case. Sd/- L.C.BHADOO Judge *i<irci4i-i tiiKdTffr.31<i) <Ri.L<;i< ^sil^iTsn^T /idence to establish the fttct that ild which was deljyered by the ^iear the pond, was detivered by the her and she committed murder of that child. Accordingly, the convic^ion of the accused/appellant under Sections 302 & 318 of the IPC caihnot be sustained anc' the same are succeeds. Convictlon & sentence's under Sections 3&2 & 318 of the IPC are hereby set aside. It Js stated that the appellant is in detention since 29.5.2000, thereblj? she is in detention for more than liberty forthwith, if not required '» S4/-- NBRA Judae P.T.O. ^ ^' N'l - k 'i