3TI^T ^iT f^1W ^CT 3TR:?T 5SiHW ^ TvSf ^tl^t^, ^Tfty41<o, ft^l'Hy C^^MoJ 3^/5o<^ •qropir ^pft^ ..».....................................................^ 200 3n^?r ^5R? (<i?^yt^) '^RHW^n^^T t'niiiAialADpealiSo. iJb/zOOT APPELLANT iKESPONDBNT Mong^ aboutl P.S. Ciihatl State of Chhattisgarh, through Police Staticjn, Bemetai'a, Distt Durg, Chhattisgai'h Hon?bleShriA Hon?b!e Shri ^hirendra Mishra, JJ. D.B. ; 28-6-2007 Ku, Sunita Jain, A€v Shri Ashish ShukL respondent/ State. Arguments heard. Pe^L^C.Bhadoo, J. : T'his appeal is di conviction and order of set the 2nd Addl. Sessioris Jifcds 306/2000, whereby ti-ie acqi.utted the accused Sefaraiii 201 of I.P.C. He has alfeo offence urider Section 30'- of the offence under Secti^ns chWfo^il^ ^lH<?ff"^jfe^ <fa<$t< ^ 3tRFf <HI^I a Bai wife of Santu Ravat, aged 30 yeai's, resident of vUlage Sorla, Bemetara, Distt Durg, tisgarh Versus •C. Bhadoo and ocate, for tlie appellant. , Addl. Public Prosecutor, for Tlie ORAtL JUDGMENT 'ected against the judgaient of iitence dated 21-11-2001 passed by ?e (F.T.C.j, Bemetara m S.'T. No. |earned Additional Sessions Judge of the offeuce under Section acquitted Godawari Bai of the ofl.P.C. and accused Mongra Bai 318 and 201 read with Section Ll XI-HC—78 3^- ^HI^, ^Tn'y^ic, Ic»0<-y^< TITOW sbNt<*» ^ 200 S^f^ K^[<=h 'cTSH <3H^ sh^iicn an^r xpro (^l^^) '^RHW^rf^T^^T 34 of I.RC. However, he Mongra Bai mider Sec^tion Godawari Bai under Secti Godawari Bai has been monthvS aiid RJ. for two ^ in default of pavment of month respectively, It isl has filed any appeal agai4st accused appellant is sentfc life, Present appeal is by| and sentence under Sectid ypmi: Prosecution case, ii v7ife of Shivkumar, Sevai'am and Mongra Ba^, sister of Godawai'i Bai. husband two vears piior Bai caiiie and staved witli Bai gave birtli to a child 2000. Thereafter M( conimitted murder of the and threw the body in Mongi'a Bai ai-id Goda^vari chl^id^l'l *<M<?if ^fe^ <fa^K ^3?ftFT3n^r las convicted the accused appellant 302 of I.P.C. and accused ons 318 aiid 201 of I.P.C. Accused sentenced to undergo R.I. for sbc ?ars and to pay a fine ofRs.500/-, Euie to further undergo R.L for one not kiiown whether Godawari Boi tlie conviction and sentence. The mced to undergo imprisonnieaf for Mongi'a Bai against her conviction b302ofl.P.C. brief, is that Godawari Bai is the ?er bromer of co-accused |, the present appellant is the elder jMongra Bai was deserted by her 1:0 the date of incident. Mongi'a her sister GodawariBai. Mongra EJI tlie house of Godawari on 8-6- ^ngra Bai and Godawari Bai female child by pressing her neck pit of Sevaram. Thereafter Bai went to their viUage. ni^-iure XI-HC—78 ^^ ?>T f^'iJch WT 37T^T 5b+li<=h IN^ •S^ ^ll-ql^q, ^ixn^'Ko, fsj^l-M^ C-r.A-^o. l3<-/s-GG2- 'qro^rr ^RWSR ••"•"•••"-"•••••"•••••"—"•"•^200 3^??r TCT^ (4C<^<8T) (^ 3 ^RITW^rftc[ 3TI^T H4Ika Thereafter accused Sevarail: in the Nullah, On enquu^t Mongra Bai caiiie to me ho|i was pregiiant. She staye(| about 8 days and the childl ./' ahout this fact, village Kotw|ar Ex. P-1 in Police Station, B\ the Investigating Officer leS^ giving notice Ex. P-6 to the on the bodv ofthe baby* P-7-A. Body was sent for p< P-13, the Doctor after po{ report Ex. P-9, in which he was asphyxia due to was aroi.ind the neck of Based on the niemormidzuli one basket ui which the seized. Medical Exanimatid and report Ex. P~ 1 1 was pn 10). A sari of Mongra Bai w the place where Mongra Ba| under Ex. P-5. After comp] sheet was filed agajnst Go< chl^id^ii^ TW^f ^f^st <R>I^I< ^'^Fj^msn^r Cl threw fhe dead bodv ofthe child accused Sevaram disclosed that i-ise of his brother Shivkumar. She in the house of Shivkumar for is of Mongra Bai. Coming to know Vivek Das (P.W. 1) lodged report mietara. After registering Uie case, for the place of occurrence, after Janchas, prepared inquest Ex. P-7 Pa^ari prepared site plan Ex. ^st mortem examination under Ex. $t morteni examlnatlon prepared |opmed that cause of death ofbaby JLUatiou. One rope like cloth which Ihild was seized under Ex, P-14. Ex. P-2 given by Godawaii Bai, [Dody of the baby was kept was |n of Mongra Bai was conducted Ipared by Dr. Mainta Pai-idey (P.W. tas seized under Ex. P-4. Earth of gave buth to the child was seized |etion of the uivestigation, charge <p.awari Bai, Sevarani and Mongra stran^Lilation XI-HC—78 ^n^r^ f<^jch WT <3?7^?T ^RW ~5^ -q|A<|^)A|, ^>Tn<1'l(o, fsi01^*j,< (^ Gr- A--MG. ^l*<c^l **<!<*» r^>02^"^ 200 a:lT^?T'<WF (^1^<^) ^^w:'??f^r ^TT^T Bai in the Coi.u't of Al^ committed tlie case t.o ttl^ where leai'ned Addl. Ses^ transfer for trial, Prosecution m orderl accused persons, exaiiii^ accused persons were rec^ in which Mongra. Bai p1|e questions put by fhe tri^ innocent and she has be^ The other accused person^ that they have been fals<| heaiing the counsel for Addl. Sessions Judge appellant as aforementionejd. We have heard Kul appellant and Shri Ashish In order to establisl appellaiit under Section 3| required to establish from M'ongra Bai gave birth to] comniitted mi.u'der of that 1|)abv cbl^fd^'1 *li*i<rff ^fe^ iFaitSfK ^ 3?fiPT ^II^T ;.J.M., BemetaTa, who m tun-i Sessions Judge, Bemetara from ions Judge received the case on to establish the charge against the led 12 witnesses. Statement of )rded under Section 313 of Cr.P.C. ^aded inuoceuce iu reply to the y Coun. She stated that she is ^n falsely implicated in the crime. also pleaded innocence aiid stated ^ly miplicated in the cruiie. After |h.e respective parties, me learned and sentenced the accused coD^icted Sumta Jain on behalf of the phukla on behalf ofthe State. ^ the charge against the accused p2 ofl.P.C., the prosecution was the cogent legal evideuce that (i) a live baby; and (iij Mongra Bai XI-HC—78 3TT^r??T ^[ch "cW ^TT^T'gpN? ^ ~5^ ^|A||C')A|, ^Tfi'M4)^, ?s)c'>i'y^< (^ 5 HINdl w^iw ^ 200 3n^?r ^RRF (yiI^cKysr) ^<nw^feT^n^T avaiialble Having heard the c^ perused the evidence viliage Kotwai' who lodged tliat m the mornmg, hls a body of a baby is lyin^ he was gouig towards that He said mat he has kept he went to lodge the report| para 3 of the evidence, he who gave birth to the chil(( village who was pregnant. liim thaf. m the last ri^ Mongra Bal caine who was| to hmi by Shanti Bai* But| Bai whether she was him that Mongra was pr exaniiued. Thercfore, there witness regardmg the pre.s P.W. 2 Pralilad has on 9- 10th June, 2000 in m| bodv of a newlv boni baby ] was lying iiear manure pit| Hemant Kuniar was infon^ n^pliew n^ar tlte glf pregn^nt infonided c»»l<4l<vl<fll'Wl^f ^fe^ <t^^l< ^3tfiiH3TT^T mnsei for the parties, we have on record. P.W. 1 Vivek Das, is the report Ex* P-1, He has stated Komtdas mtormed nuii tfaat manure pit of Sevaraai. When ^ite, Sevarmii met hini on the wav. baby in a safe place. 'T'hereafter and lodged the report Ex. P-1, In |ias stated that he does not kinow 1, There was no such lady ui the However, some ladies had infornied Jh|ts ceremony of Hiraiiian Singh, [ pregnant* This fact was informed |he mmself had not seen Mongra or not. Sevai'ani also informed ^gnaiit. Shantibai has not been tvas no personal knowledge to this n^iicy of Mongra Bai. t|Limed hostile and has stated that morniTig at about 7.00 a.m. tb-e jwas found in their village, which of Sevaraiii, thereafter Sarpaiich and vUiagers collected there. XI-HC—78 ^n^r ?PT (<^i<=h TfSTT 3?H^?T $h^i<=fr» ^ 'S^ -^||q|0<q, ?S>Tfi<r)<|<o, (s|^l^^< <^.Q-(T^O- )3 (0^2002— ^Wv{{ shNicb "••"•••—-"•—• "•——•"•^ 200 an^r x^w (4<<^<^) '^iTW^fer^n^r declfered Godawari Bai was missuit 'T'his witness has been tlie prosecution case. P.W. 3 Hemant Kuma|] stated that the accused ]^( morning of 10th June, 200<t Pralilad Patel ii-rfoniied th^ was lying near the manLirel near the place and saw th|< reported ui the police st^ inquest Ex. P-7 on the bodt presence. The basket was Bai. In para 6, he has stat^ incident, Mongra Bai caiiie dav when thev saw the bo^ the village that is why peop birth to me child, the ac| Therefore, his evidence is n| the accused m a pregnant ^ P.W. 4 Snit. Kaiiila has not supported the pro^ has stated that he does belonguig aiid who left cbHid^l'1 "Wraf ^\fe^ <^t^l< ^^jRw^Rn^f from me house suice mon'iing. hostile and has not supported ^ Patel, Sarpanch ofme village has ^rsons are known to huii. In the at about 7.00 a.m., Up Sai'panch it the bodv of a newlv born babv Ipitof Sevaram, therefore, he went body, thereafter the laatterlwas ttion. He has further stated that K-7 ofthe baby was prepared in his $eized at the instance of Godawari ^d that 3-4 days before the date of |to the house of Shivkuaiar, On the ly, the accused ladies were not m |.e were suspecting that after givmg msed ladies have left the place. .{3t directly to me point that he saw pge. ^i has also tunied hostile and she ^ecution case. P.W. 5 Than Smgh know to whoni the child was Ejhe body in the manure pit of nbt B^i nbt XI-HC—78 31T^r ?RT fqrilcn ^n 3?n^T $t»*ii<^ TuSf ^Hl^, ^-cfl-y'Ko, fs(0l<i^< C^^.(^>-l^^/zz?'0^ ^INdl *Nlct»""""••—-"—•""""""•"•••^ 200 aii^FT xpra? (4^1^<i^) '^nw^fer 3?n^r Sevm'aiii, merefore, he di(^ Similarlv, P.W. 6 Dhal Sih aiid he has not suppor Raikumar has been deci^red ^upported the prosecutioi-1. Inspector of Police who t|ias Konvm' lodged the report. | the Police Station, Beiiieltara. stated U-iat on 10-6-2000, body of the baby weign| Hvdrostatic test which wat on the neck. There was d dissection of ligature mar] in subcutmieous tissue o| was aspnyxia as a re^ exaniination, lie has state<| post mortem report that uature. He has not meuti was homicidal in nature, exaiiiined Mongra Bai, has 12.30 noon, she exmiiine breast of Mongra Bai aiid ot tlie woml3 was 14 weel chHid^l'1 Ni*i<nT^fe1^ <R»I^K ^^ifiTH^n^r not see Mongra Bai in the village, igli has also been declared hostile ;d the prosecution case. P.W. 7 hostile and he has also not case. P.W. 8 V.K. Shukla is rettred stated that P.W. 1 vlvek Das, Ex. P-1 while he was ui-charge of P.W. 9 Dr. N.K. Tiwai-i has he conducted post mortem on Uie ing 1.80 Kg. He also conducted |s positive. There was ligature mark loth around the neck of baby. On |c, there was extravasation ol blood niuscles of neck, cause of deam ^ult of strangulation, In cross- |1 that he has not mentioned in the the injuiy was ante niortem m l^ned in the report Uiat the death P.W. 10 Dr. Mamta Pandev who stated that on 11-6-2000 at about ;|d Mongra Bai. She exaniined the 4iilk was preseut ia the breast Size '^s pregnaiicy mid utenis was also XI-HC—78 3TT^T ^T f<rtich 'C?STT '3RT^FT $b*li<=t) 3^sr ^n?n^r, ^»xfl^^<s,(ci^i'y^ 8 ^l^dl tb^lcb •^ 200 3iT^?T ^GR^ (ydi^<^) '^TTW^rf^T 3^TT^T th|at $ai equivalent to 14 weeks p^ witness is scrutinized, slie| was equivalent to 14 weeksj inside was also equivaleit period is 36 to 38 weeks ar|< much period, fetus gets ltfe|. not stated about the age evideuce to the effect pregnancy of Mongra cu'cuiiistantial evidence, n^ test, which was found po^ babv was boi'n alive. corroborated bv other circ| reach the conclusion as to| or not. More over, in the ev] above, there is no cogent iave birth to an alive chiU Manita Paiidey (P.W. 10) w| pressuig tlie breast, milk wi size of womb and uterus w^ no other evidence that M child. chl^fd^l'1 'RTR^f ^fe^ ifat^K ^r ^ifiFT SIT^ ^gnancy. If the evidence of this has stated that the size of wonib |pregnanc>r mid size of uten.ls from. to 14 weeks, Nomial detivery d there is no evidence tliat m how E'ven P.W. 9 Dr. N.K. Tlwai'i has |of the fetus. There is no ocular what was the stage of fhe Therefore, without cogent ^relv ou the basis of Hydrostatic titive, it cannot be held fhat the ^he Hydrostatic test must be tuinstantial evidence ui order to whether the chiid was boni alive lclence of the witnesses referred to clear evidence that Mongra Bai except that the evidence of Dr. ^io exainined Mongra Bai that ou ^s coming out froni the breast and |.s equivalent to 14 weeks, there is l|ongra Bai gave birth to aa alive ailid XI-HC—78 T^f ^WW^, ^TO^Ko, fcl<?'»W^< ^ ^|t<dl th^lcb •^ 200 311^T?RT R^ich TCT^T^T'^RW ^ 3?I^iT T^R? (ijdl^^) ^RnW^Rf^T 3?TT^T For the foregoiag re^sons, we are of the considered opinion that me prosecutioiji has not been able to establish by clear, clinchmg and legal ^vidence beyond reasonable doubt that Mongra Bai gave birth| death ofthe child was caus^d by su-angulation. In tlie resiilt, the sustained. T'he appeal fij|i Accordingly conviction and| aside. She be set at Ubert\t <sr)t<ii<n<ili _*<H<^ ^fe(st <R»I^I< ^^ifim^n^T to a Uve child, ai-id thereafter me conviction of Mongra Bai for commission of ofience und^r Section 302 of I.P.C. cm-uiot be ^d by the appellant succeeds. sentence of the appeilant is; set forthwith tf not required in anv other case, Sd/- L.C, Bhadoo Judge Sd/- Dhirendra Mishra Judge