IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 178/2001 (Old No. 1469 of 1998) State …Appellant Versus Smt. Bhagwati Devi …Respondent Mr. Nandan Arya, A.G.A. for the appellant Mr. S.S. Chaudhary, Advocate holding brief of Mr. D.K. Bankoti, Advocate for the respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Per :Hon’ble B.C. Kandpal, J.(Oral) This Government Appeal preferred by the State under Section 378(3) of Cr.P.C. is directed against the judgment and order dated 17.10.1997 passed by Sessions Judge, Pithoragarh, in Sessions Trial No.24/1993, State versus Smt. Bhagwati Devi, whereby accused-respondent Smt. Bhagwati Devi has been acquitted of the charge of offence punishable under Section 302 I.P.C. 2- Prosecution story in brief is that informant Amar Singh, father-in-law of the accused Bhagwati Devi, gave a written report on 8.11.1992 to the Patwari concerned alleging therein that his daughter-in-law Smt. Bhagwati Devi alias Neema gave birth to a daughter on 6.11.1992, but the newly born child died on the evening of 7.11.1992. He requested the Patwari to complete the legal formalities. On this report the Patwari went to the house of the informant and the accused and completed Panchnama of the dead body of newly born child. The Patwari and the Panchas arrived at a conclusion that there was no injury mark on the 2 dead body and she had died because she did not take feed of her mother. The Patwari permitted the informant to complete last ritual of the dead body, but soon thereafter the concerned Patwari changed his opinion on the basis of alleged statement of marriage, and so Patwari instead of handing over the dead body to the family members, sealed the dead body on the spot for conducting post-mortem examination. Post mortem was conducted on 9.11.1997 at 1.45 p.m. and one ante mortem injury as contusion was found in front of neck of the dead body. The doctor who conducted the post mortem was of the opinion that baby was born full term and cause of her death was asphyxia due to throttling. On this report Patwari registered a case against accused Bhagwati Devi under Section 302 I.P.C. During investigation, the investigating officer came to the conclusion that accused Bhagwati Devi killed her newly born daughter and so a charge sheet was submitted against her. 3- After submission of the charge sheet accused- respondent was committed to the court of Sessions and the learned Sessions Judge after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against accused-respondent. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to prove its case got examined as many as seven witnesses in the case. PW-1 Smt. Ganga Devi is the Nanad of the accused. PW-2 Smt. Jamuna Devi is mother-in-law of the accused. PW-3 Amar Singh is the informant and the father-in-law of the accused. PW-4 Dr. Mamta Sharma had medically examined the accused on 3 9.11.1992. PW-5 Ram Singh is the husband of the accused. PW-6 Shyam Singh Bhandari is the Patwari who investigated the case. PW-7 Dr. M. Mugni conducted post mortem examination of the dead body of the child. 5- The accused/respondent in her statement under Section 313 Cr.P.C. denied all the allegations of the prosecution and stated that after delivery of the child, she (the child) was being looked after by her Nanad Km. Bhawna and she does not know as to how the child died. She has also stated that her husband wanted to marry some other woman and in furtherance of this he had filed a suit for divorce against her, but the suit has been dismissed. However, no evidence was adduced by the accused- respondent in her defence. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties found not guilty the accused/respondent of the offence punishable under Section 302 I.P.C. and acquitted her of the charge levelled against her, vide impugned judgment and order dated 17.10.1997. 7- Feeling aggrieved by the aforesaid impugned judgment and order, the State has preferred the present appeal which has been placed before us for disposal. 8- We have heard Mr. Nandan Arya, learned A.G.A. for the State/appellant, Mr. S.S. Chaudhary, Advocate holding brief of Mr. D.K. Bankoti, learned counsel for the respondent and perused the record. 4 9- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the child was conducted on 9.11.1992 at 1.45 p.m. by Dr. M. Mugni (PW-7), who found the following ante mortem injury on her person: “Contusion present in front of neck just below the trachea sized 2.5” x 1” extending from right mastoid to left angle of mandible, bluish in colour, dry hard on cutting glistering and muscle fibers contains clotted blood.” The Medical Officer (PW-7), at the end of post mortem examination, opined that cause of death is asphyxia due to throttling (ante-mortem) and baby was born full term. 10- It is also pertinent to mention here that it is a case of circumstantial evidence as no eyewitness of occurrence is there in the present case. Now, this Court has to see whether newly born child was killed by the accused-respondent or she died a natural death. According to the prosecution, the newly born child died due to throttling, but no evidence is available on record in this regard. The inquest on the dead body of the child was conducted by Patwari Shyam Singh (PW-6) with the help of Panchas. Perusal of the inquest report (Ext.Ka.4) reveals that Panchas given their opinion that no injury was seen on the dead body of the child and she died due to not taking feed of her mother. 11- To prove its case prosecution got examined Smt. Ganga Devi (PW-1) who is the Nanad of the 5 accused Smt. Bhagwati Devi, Smt. Jamuna Devi (PW-2), mother-in-law of the accused and Amar Singh (PW-3), father-in-law of the accused and informant of the case. The evidence of these witnesses is of no help to the prosecution. PW-1 Smt. Ganga Devi has stated in her cross- examination that she is unable to tell whether the child died a natural death or she was killed by the accused. All these witnesses have casted a doubt upon the accused that she had killed her child but there is nothing in their statement for making out any ground for such doubt. PW-3 Amar Singh, father-in-law of accused Smt. Bhagwati Devi, has stated that the child took birth within a period of six months from the marriage of the accused and he was sure that the accused had conceived this child much earlier her marriage through some other person and when this child died he had a suspicion that the accused might have killed her. None of these witnesses have seen the accused throttling the child and they have only a doubt in their mind that the accused could have killed her newly born child. Therefore, there is no cogent and reliable evidence pertaining to the commission of crime by the accused Smt. Bhagwati Devi. 12- The prosecution heavily relies on the medical evidence. Dr. M. Mugni (PW-7), who conducted the post mortem examination, has stated that contusion on the front part of the neck of the child’s body, measuring 2.5” x 1”, just below the trachea, was found, which was bluish in colour and according to the doctor the cause of death of child was asphyxia due to ante mortem throttling. The doctor further stated that the age of the child was 6 about 1½ days and her death also took place about 1½ days before the post mortem examination. During his cross-examination, he opined that contusion on the body of the child could be sustained by the child herself during delivery if the orifice of the vagina of her mother was congested and tight and during the course of delivery child’s only head was outside the vagina and in the meantime the labour pains were subsided. In this way, the doctor has not given any definite opinion about the contusion mark on the neck of the child whether this contusion mark was caused in a natural process of delivery or it was caused by some one after delivery had taken place. 13- Even if it is presumed that the child died because of ante mortem throttling, the prosecution could not establish beyond reasonable doubt that it was the accused alone who did throttling of the child. 14- According to the prosecution, the accused had motive to kill the child as this child was an illegal one and accused had conceived it before her marriage. This part of the motive pointed out on behalf of the prosecution also casts a doubt on the family members of the accused. If the child was conceived by the accused before her marriage through some other person and this fact was in the knowledge of the family members of the accused, then they had every reason to kill the illegal child. If the accused had conceived illegal child from some one else and she wanted to kill that child, then she would have aborted the same and she would not have liked to give birth that child. 7 15- It is also important to note here that the investigating officer Shyam Singh (PW-6) made some interpolations in the inquest report (Ext.Ka.4). Earlier Panchas had not found any mark of injury on the body of the child, but the investigating officer in order to make a case against the accused- respondent fabricated false evidence by making interpolations in the inquest report and for that reason the learned trial court directed to initiate proceedings under Sections 194, 218 I.P.C. against the investigating officer. The conduct of the investigating officer is also doubtful and it cannot be said that he investigated the case fairly. The lacuna in the investigation also casts doubt in the authenticity on the prosecution case. 16- Therefore, the prosecution has been fully failed to establish the guilt against the accused- respondent beyond all reasonable doubt. The learned trial court has rightly acquitted the accused-respondent from the charges levelled against her. The reasons recorded by the trial court for acquittal of the accused-respondent are based on material on record and we do not find any ground to interfere with the same. 17- In view of the above, appeal lacks merit and is liable to be dismissed. 18- The appeal is dismissed. The impugned judgment and order dated 17.10.1997 passed by the trial court is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 01-06-2010 SP