mGHJ^UIKT OF CaiHATTISOARM. BIIASPUR Crtailaal Appeal Mo.608 of 2002 APPELLAHT c 1. 2. Bimla Bai, wife of Sutehchand Marar, aged about 25 years Ledgi Bai, wldow of late Raca. Shaiaa, s^ed about 60 years RBSPCMTOBNT Bofh residcats Pendrikala, P.S. Distt. Duig(C.G). Versus State of Chhattisgarh of vfltege Khamadya, DB: HON'BLESHM JUSTICB L.C. BHADOO & HON'B!^ SHm JUSTICESUMBL KimUll 8HIHA. JJ. ABpCTgaaee: Sint. Usha Chandrakar, counsel fbr the appeUants. Shri Sudhir Bajpai, Dy.Govt. Advocate, for fhe State. ORALJUDGMBnT (16.01.2008) The foflowiag judgment ofthe Court was p^sed by L.C. Bhadpo^A (1) This appeal is directed agaiast the Judgment of convfctibn and order of sentence dated 12.4.2002 passed by fhe Additioaial Sessions Judge Bcmetara, in SessionsTrial No.192/1999 whcreby ffae teamed AddL Sessions Jiulge after holdiag the acetised appellaat Bimla Bai guilty for coiiunission of the offence u/ss 302/34, 201/34 & 318 of I.P.C., sentenced hcr to uajdeigo imprisoiuaent for Hfe and to pay a fiae of Rs.300/ - u/ s 302/34, in default of paymen.t of fine to fta-ther zmdergo R.I. ft>r 2 monfhs; R.I. for 5 years and to psy a fine of Rs.200/- VL/S 201/34; te default, to further undei^o R.I. for 1 month & R.I. fi>r 1 yearand to pay a fixic of Rs.100/- u/s 318, m default therecrf, to flirfher uadei^o R.I. for 1 month. The leamcd AddL Sessions Judge also coDyfcted accused Ledgi Bai for thfi offence u/ss 302/34 8s 201/34 and sentenced her to undcigo imprisomnent faTUfe aa^ to pay a fine ofRs.300/- u/s 302, ia defazilt to furthiBr uadetgo|R.I. Cr.A.No.608/2002 for 2 inonths & R.I. 5 years and to pay a fiac of Rs.200/- u/s 201/34, ia defaultto furfher imdergo R.I. forone monfh. (2) The case of the prosecution in brief is that Vimla Bai was mamed wifh one Sukhchaad of viUage Ghata. However, she deserted her husband about 3-4 years prioa- to 06.12,1998 and started living at village Pendnkala wifh her mofher Ledgi Bai and brotfaer Raiakumar (P.W.2). Durmg fhis period, she dcveloped physical relations with Mannitram, as a result of wMch, she became pregnant and on 06.12.1998 she gave blrfh to a rnale cluld. It is alleged fhat as the child was iUicit, in order to conceat the birth of tiie clrild, Bicala Bal, I^edgi Bai aad Maanuram hatched a conspiracy t6 etuninate the child aud ia furtheraace of the saM conspiracy, accused Mamiuram threw the child on the ground as a residt ofwhlch, the chDd sustained uyuiy on fhe head and died. Thereafter, ia order to screeu themselves firom the legal punlshinent, accused VimJa Bai & Ledgl took fhe body of the clifld to a garbage plt aad buried fhcre, which was ncar feeir house. However, afber soine tune, thc dogs and cows coUected near that garb^e pit aud when P.W.l Shaukar was retumaig after takiag bath at the weU, he saw fhe body of a newfy bom baby in the garbage pit.aaSa tfe informed the village Kotwar Tul»idas (P.W.3). Thereafter both ofthein went to fhe poBce station Khaxnfaariya aad Shankar (P.W.l) gavc merg intiinatlon (Ex.P.16) to-fhe Sub- Inspector V.K. Sharma (P.W.ll), who left for tiie -pSace of occurrence. He saw the body of a ncwty boru baby ia a garbage pit. He afber givic^ the notices to the Paachas, prepared inquest (Ex.P.5) on the body of newly bom baby aad sent thc body for postmorteiu examination under Ex. P.10 to the Prixnaiy Health Center, Khamharia, where Dr.R.P.Sbarma (P.W.9) coiiducted autopsy on the body of newty bora baby aad prepared the postmortem report Bx.P.ll. He opined fhat the death of newly bom ctuld was on account ofhead injuiy as the boneofhead was fouad fi-actured, on fhe baste of which, P.W.ll V.K. Shanna registered fhe first information report under Ex.P. 17 aad thereafter he recorded the stateiaent ofwitaesses and sent accused Vunla Bai for laedical exaaunation uader Ex.P.9 to fhe District Hospital, Durg, where Dr.Pratibha Dani (P.W.8) exannincd her and gave f iian^. 1 I 'T^ .1 Cr.A.No.<i<»8/2M)2 report Ex.P.9 to the extent that Bfmla detwered a cliild in fh.e recent past. (3) Afier coiaptetion of fhe iavestigation, charge sheet was fidd against Bimla Bai, Ledgi Bai & Mannu Ram. ia fhe Court of J.M.F.C., Bemetara, who in tum. conunitted the case to ttie Sessions Judge, Dui^, fiom wherc, fhc AddL Sessions Judge, Beiaetara, received th&case on transfer for ttial. (4) The prosecution in order to estab&h the cbaxyes agaiast 3 accused peisons examiaed 11 witnesses. The stateinent of accused persons were recorded u/s 313 Cr.P-C. by fhe teamed Addl. Sessioas Judge, each of the accused detiied the material appearing against theia in ftie prosecution evidence. (5) The leanaed Sessions Judge after heariag counsel for the respective parties convicted and sentenced ttie appeBaits Bimla Bai and Ledgi Bai as aforenieationed. However, hc acquitted fhe accused Maanu Ram.. (6) We have heard SmtUsha Chaadrakar, couasel for fhe appeUaats aad Shri Sudhir Bajpai, Dy. Govt. Advocate fbr the State. (7) Smt.Chandrakar has not disputed the homicid^ deafh of the newly bora baby. Moreover, P.W.9 R.P. Sharma, has stated that on 08.12.1998 at about 3.30 p.m., he was worldag ia thc P.H.C., Khaniharia and on fhat day, body of a aewfy bora baby was brought for postmortem exaimnation and it was iaformed that tbe baby is ofVimla Bai. The body was identified by caic Tulsidas . Cte examiaation of the body, tic found fh.at there was a eontusioa in size of 5 x 4 cia on the r^ht padetal fix>ntel region of head. Oa dissection, btood was found and fcontal bone was fouad fiactiued ia triaagular shape measuru^ 1.5cm x 0.5cin, teft parietal bonc was also fi-actured ia leagfh of 2 cm, Clotted blood w^ preseat on fhe bony surface. The braia tissues were melted, Accomii&g to him, fh.e contusion aad bony fi-actures were aateanortem m natere aad the cause of death-was fi-acture. Therefore, ia view of thc above evidence ofDr.R.P.Sharma (P.W.9), it is estabUshed tbsei fh.e newty boni baby met wifh hoinjcidal death. -—^-• ul ^ ^: ^y^""^ '3ra,,_ • '- (S> cr.A.No.eosaooz (8} Now coiniug to fhe question of coinpHcity of fhe accused Bimla Bai and Ledgi Bai, as per thc evidence of P.W.8 Pratibha Daai, who niedically cxamined Bitala Bai on 17.12.1998 ta^ stated that fhe breasts of Viada Bai have weU. developed aad containcd mUk. Bimla Bai informed her that a few days bcfore, she gave birth to a child. Her private parts were examiaed. LochM was present. Her uterus was of fhe size of 8 to 10 weeks and in her opmion, she gave birfh to a child 20 - 25 days prior to flie date of examiaation aad her report is Ex.P. 19. In view of the above evidence it is estebtohed that Bimla Bal gave birth to a child ia the last week ofNovember or ia the 1" week of Deceaaber. (9) Now the question remaias and as far as the recoveiy of the body of newty bom baby firoin the garbage pit is concerued, P.W. 1 Shankar has stated that he saw the bcdy ofnewly bonaibaby in the garbage pit and the laatter was reported to the poUce. He has tumed hostilc and has not supported fhe prosecution case but hc baa stated tfaat tlie place where the child was fouad was open aad easily accessible to anybody. The Investigating OflScer, V.K. Sharnaa (P.W.ll) has stated fhat on 08.12.1998 oa informatlon giveu by Shaakar Patel, he teft for the place of occurrence aad under Ex.P.5 recovered the body of newly bom baby aad it was sent for postmortem examination. In fhe cross examination, he stated that thc garbage pit is at a distaace of 25 to 30 ft. froni the house of accused Lcdgi Bai. Even the Patwari, Bharatlal Soni (P.W.10) has stated fhat thc garbage pit was easity accessible fo anybody, therefore, the place fix>ia where the body of newly bora baby was recovered was an open place and it was accessible to one and aU. (10) Now fhe question remaias as to whether fhe newly bosn baby, body ofwhich was found ia the garbage pit, waa of Biada Bai. To this extent, (tiere is no evidence that any mcdical test was conducted ia order to ascertaui that the newly bom baby was of Bimla Bai. There is no ofher uiaterial on record whlch establishes fhat auybody saw Buula Bai or Ledgi Bai putting fhe newly bom baby in that garb^e pit or there is no evidence fhat Buula Bai gave birth to newty boru baby, body ofwhich was found ia fhe gaAage pit aad fhere is no evidence fhat anybody saw fhe accused pcrsons "I!& ""-. ":-'.M •-v,':'. f ^ /ffao/ Cr.A.No.608/2002 wifh fhe body of newly bom baby in fhe housc or aaybody saw comxEdttmg the murder of newty bora baby. Morc over, accused Maanuram, ayetin.st whoia fhe prosecutioa altegation was tfaat he threw fhe cIuM on the ground and cominitted murder, has already been acquitted by the trial Coiut being no legaUy adtnissible evidence available agaiast him. Therefore, we are ofthe considered opmion that Qie findiag of the trial Gourt convicttag flie accuscd appcUaats u/s 302, 201 or 318 IPC cannot be sustaiaed as there is no legal evidence on recx>rd to estabUsh thc charges teveBed agaiast fhe accused persons. (11) In fhe result, the appcal filed by Bimla Bai aad Ledgi Bai succeeds and they are acqiutted ofthe chai^es u/s 302, 201 and 318 of I.P.C. It is stated that bottt of them are ia deteation sincc the date of judgiaent i.e., 12.4.2002, therefore, fhey be set at liberty forfhwith, ifnot required in auy other case. Sd/- L.C.BHADOO Judge Sd/- Sunil Kumar Sinha Judge a tti' iit ^