HIGH COURT OF CHHATTISGARH AT BILASPUR Coram : Hon'ble Shri T.P.Sharma and Hpn'ble Shri Rajeshwar Lal Jhanwar, JJ. Criminal Appeal No. 1471 of 1994 Appellant : Pardeshi, aged 25 years, s/o Sonsai fin iaill Sahu, resident of village Bindarwani, P.S.Kurud, Chowki Bharkhara, Tahsil, Dhamtari, District Raipur, M.P. Versus Respondent : The State of M.P. CRinfllNAL APPEAL U/S 374 (2) OF CODE OF CRIMINAL PROCEDURE Present Shri Arun Kochar for the appellant. Shri Sandeep Yadav, Dy. G.A. forthe State. ORAL JUDGIWENT (Passedon 27th April, 2010) The following oral Judgment ofthe Court was passed by T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 07.11.1994 passed by the Additional Sessions Judge, Dhamtari, Dist. Raipur in Sessions Case No. 181 of 1993 whereby and whereunder after holding the appellant guilty for culpable homicide amounting to murder of newly born child and for concealing the factum of birth in sharing the common intention with co-accused Keshari Bai (since deceased), the Court below convicted the appellant under Section 302 read with Section 34 and 318 read with Section 34 of the I.P.C. and sentenced him to life imprisonment and to pay a fine of Rs.500/- under Section 302/34af the I.P.C. and to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.200/- under Section 318/34 of the I.P.C, in default of payment of fine, to undergo additional rigorous imprisonment for six months in each count. 2. The conviction is impugned on the ground that without any clinching and credible evidence, the Court below convicted and sentenced the appellant as aforesaid and thereby committed illegality. 3. Brief case of the prosecution is that the deceased - Keshari Bai was having illicit relation with the appellant, as a result of illicit relation, she BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 13:01:20 +0530 t-c^. <- -^ conceived and gave birth to a child on 5.3.1993. The appellant and the deceased - Keshari Baj killed the child and thrown the dead body in the barn (where paddy keeps) of the field Dhaniram. The matter was reported. Merg was recorded vide Ex.P.4. Investigating Officer left the scene of occurrence and after summoning the witnesses vide Ex.P.SA, inquest over the unknown dead body of child was prepared vide Ex.P.8. Dead body was sent for autopsy to Government Hospital, Dhamtari where Dr. Virendra Kumar Sahu P.W.2 conducted the autopsy vide Ex.P.2 and found the injuries over the injuries over the skull and chest and death was homicidal in nature. Matterwas investigated. The deceased Keshari Bai was examined by Dr. Smt. Asha Tripathi P.W.1 and found that she delivered a child within 10-15 days. Bloodstained and plain soil were recovered from the spot vide Ex.P.6. One sari was recovered from Keshari Bai vide Ex. P.7. Spot map was prepared vide Ex. P.9, During the course of investigation, statement of Puranik was recorded under Section 164ofCr.P.C. 4. After completion of investigation, charge sheet was filed before the J.M.F.C. Dhamtari who in turn committed the case to the Court of Sessions, Raipur. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution examined as many as 9 witnesses. The accused was examined along with co-accused Keshari Bai under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded their innocence and false implication in crime in question. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties. impugned and record of Court below is perused. Judgment 8. Counsel for the appellant vehemently argued that the evidence adduced on behalf of the prosecution is not sufficient for drawingan inference that the deceased appellant Keshari Bai is conceived and gave ^'-^. /"•f' ^^,'"^ 1 '^1-1 •K. ^^ ">• .-^y'/ - 5 birth to a child and after birth she has committed the murder of her child, therefore, the conviction and sentence of the deceased Keshari is not sustainable under law. The conviction and sentence of the present appellant and that co-accused Keshari Bai is based on confessional statement made before the police, which is not admissible as per Section 25 and 26 of the Evidence Act. The prosecution has not collected any evidence against the accused sufficient for drawing inference that the appellant has committed the offence ofculpable homicide amounting to murder. 9. On the other hand, learned counsel for the State opposed the appeal and submitted that the prosecution has proved its case beyond all reasonable doubt and the learned A.S.J. has rightly convicted and sentenced the appellant along with co-accused as aforesaid. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. In the present case, homicidal death as a result of ante-mortem fatal injury has not only been substantially proved by the appellant but on the other hand also established by the evidence of Dr. Virendra Kumar Sahu P.W.2 and autopsy report Ex.P.2. 11. As regards the complicity of the co-accused Keshari Bai, in crime in question, the evidence adduced by the prosecution is sufficient for her conviction and sentence. During the pendency of the appeal, she has died, therefore, the appeal in so far as it relates to Keshari Bai is finally abated. As regards the complicity of the present appellant - Paradeshi in crime in question, the prosecution examined as many as 9 witnesses and none of them has deposed that the appellant made extra judicial confession before them. Though the factum of commission of offence of culpable homicide amounting to murder of child finds in confessional statement being made by the appellant before the police, it is not admissible as per section of 25 and 26 of the Evidence Act. Virtually, in the present case, the prosecution has not collected any evidence against the present appellant that the appellant has committed culpable homicide amounting to murder of newly born child or the act of concealing the birth -?—- .^--- •<-"^ ^ - Ll of child. Therefore, the conviction of the appellant under Section 302/34 and Section 318/34 ofthe I.P.C. is not sustainable under law. 12. For the foregoing reasons, the appeal is allowed. The conviction of the appellant under Section 302/34 and Section 318/34 of the I.P.C. is liable to be and is herebyset aside. He be set at liberty at once. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge H Q^ i