XII-S89 (Jail) G. J. T< R /1-9i ^^ s name -<^<^GLGt'c^<b6^ l^^_ ^...__,,,_ _ 3^d ^3^i^€^W?(^^se ^c)§ ^ ^^ Sentenced to, g__ . ^SR^..: .. ^' on ^.^ ,. ^_ :'. ;; . '^^/^;cb^^i^QJ 1C7^&"—^;'^^^-3fl Under Section N-^hi' ^02,^(^ ^.^CL.— by- ?T?ni^iVii,^iw.j ^S^ ^^|©(3? Tt is exptained tp tlic pnsoner ttiatif he states he wishes to be represented by a legal prActitioaer theappsllate Courtwill not prjssidwith the case for 'ie^ei d»ysulScsi rhi Iegal practitioncr appears earlier. If thclegal practitioner does not appear witbin sevea days he may not hcard at all. ifthe prisener states that he does not wish to be repre- ^^ed by legal practitian0r the court may proceed at oace with ^Jip case and will not J^Oiifiged tp givc ahearingto any legal practitioner who should a^pear. 1 2 3 4 Date ofApplication forcopyofjudgemcflt Dtte on which copy received __, Eteteonwhich AppeaiscBt^ ^- Whether the prisQAer wishes to bc repnesented or aot» -Y- ^ No. ^7^~ ConfiaeiEl ID Name €>^ '% Ne*-l—L^a^. f^f^t _JaiL '^^Ri -^- ^T oTr^L'- <^^<^ ^Oatcd ,(^-^^,^ l$9. Forwarded to the ^ ^^ ' ^W9^. ^^(^^ Qy5^)(^y>^ ^^^>>7^r' t</j|e^ier with a fcopy pf JudgcmeBt 91- ©rdcrpaised IB the case for f^si^e of ^g^ e0(©^ Smission to the properAppcUate court. Bg3iT- ^ jA»AL.?fcfe^ ^ Otii Date ef recsipt m '\ _ »:s3. ^»^^Qffv£ef f^^^s^ ^s^'^ L.4 Jarf . . ^ l'^".^~ W,W^WR • receipt of r^cprd to aqcomftiit»y^fafi?«_ Memo ©fAppeal to trieAppellaty^ourt No. CS/ CJ~^{ ^^^^^^^ ^ { \ ^\ Eorwarded/to the_^ U J^s-^^4~€i) l 6Ajp(f'^)sVT<j^<- ? 0/<^A^hJ^( ~ J QI ^l:::^aLL G^j^ J^df.?.3 ^'s.y^sfm^ y • ^ L^- ) E)aie ef reeeipt ia Appellate c®urt_ ^ ^ tP.t.O^ F XI-HC-22 "S^ ^[RTRR. ^TitWI^. 'tNcSRiy sn^r 'q=i^ WN^T^W^ * y^*^30@^ ' iq^sf"* '3?H^T'^F 'f^??F3^T '^?NT^^r 2. ^nt^? ^^iw 'Ht^H •OSVSSiONBENCH: HON'BLE! & HON'BL! Appellanf CRiMSNAL APPEl TeiN Respondeiit. Sta^ Shri S.L.Bajaj, iearned counsel| Shri'U.N.S.Deo, learned Add| Akhi! yishra, iearned Pane! lawyer:fo| <=M^i<rs4l-t ^il^ff ^ fe^ <F3|^?< '^^w^ii^r SHRi LC.BHADOO' . . SHRI DHiRENDRA MISHRA, JJ ftL N0.1COO ©f1984 •». . . - . . unwari Bai : Vs. . . . e Pradesh forthe appeilant. tional Public Prosecutor with Shri rthe respondent/State. L.C.BhadGO, J ORAL ^UDGMENT (07.S|2.200e) By th.ls -appeal under.'Sectios| Procedure accused/appellant. Teikun^j 374(2) of the Coae of Criminal ^ari Bai has questioned the iegality ofjudgment of conviction and order o| sentence-dated 15.09.94 passed by the. Second Additiohai. Sessions Jq'dge, Raigarh in S.T.. No. • 18.9/93- whereby the ieamed Additional . ^ accused/appeiiant guiity for cornmissit convicte'd her under'sections 302 and| lessions ' Judge after. hoiding. the bn of murder'ofherne^ybom child 1318 ofthe IPC and sentenced herto undergo: irnpnsonment for'life and oi|e year RI respectively on both the. counts'. Case.of the prosecution-, in brief is|haton 16.03.93 Kotar Jamal Ram lodged a report.in the poljce-station} Pathaigaon that'the piacenta' of -a ^vTOman_jegarding^^ of a chijd was.iying behind the ReSt'.House, [Tft^^fe^ F XI-HC-22 ^?^T^? ^[ch 3?l^T '^iw??f|^ 3. .4. T ^^ '^TRI^FT, ^c^R^. fa<v*l1Hy ^T^r.'tR'^ _^........Cf.4-A-......14&o HW^I ^Nras [^<^9' ^i^r^^iw^r" -<2.— ressciipg the accused Teikun^^A/ari. .Bai is therefore, it is suspected that she: haj this report, the S.H.O. of po!Jc< investigation and the dead body of In a plastic bag from bus stand, Patt the accused was condycted'tn v^iicN has glven birth to a child.P.W.-S Dr post mortem -on the body ofthe newl^ was born allve and she died on accoi neck. After investigation the charge Judicial-Magistrate, Raigarh' for th^ Section 302 and 318 of the IPC iearned ChiefJudlcial Magistrate'in Jucige,. Ralgarh from wiiere the Judge,Raigarh receiv.ed the case oni -The prosecution 'jn order to es accused/appel.lant. examine.d eigi^t acc.used/appejiant vras also recorde<| ^tiich she denied most'ofthe prose^tion and in repiy to question No.12 that s^ thereto, she repiied that she deilve?|ec The accused also exai-nined OsUe def^nce After hearing the arguments of th| couhsel for the. accused/appaijantj 1— ^i^i^4i^ *i?<4<A ^fe^'^T^R ^^ti^i^ 3?i^r aiiaione and she was pregnant iat given birth to a child. On receivmg station - Pathalgaon • started the nejyvly born femaie baby was recovered lalgaon. The medicai examination.of rthe doctor opined'that the accused Kastash Dutt Dubey conducted the born baby.and opined that th'e baby |nt ofasphyxia due to pressing ofthe iheet was fiied in the Court of Chief l.'commissjon of-the offerice under agjainst the accused/appeilant and the |urn committed the case to SessJons yamed Second AdcSitional Sessions ItransTerfortria!.. tebiish the charges against the witnesses. Statement of the under Section 313 ofthe Cr.P.C. in evidence'appearing against.her ic has deiivered a chiid within a week ed a chiid eight to ten days before. wtness D.W.-1 Madhu Sai. Additionai Public Prose&utor and learned Additionai -Sessions Judge [Tft^ SRg^ r F XI-HC-22 .sn^r-^F 'f^^^^l ^^i^ ^it^a 5. 6. ~^^^PTR;PT, 'S^NFTS. t^Riy 3n^?T "q^ .^-d.^-^^ ^R^ii^Hy^ 'Sii^T '^zdl^T^f^ ^ -s-^ convicted and • sentenced the a! paragraph one ofthisjudgment. ' We have heard Shri S.L.Bajaj, iearr| and Shri U.N.S.Deo wlth Shri Akhil N is.no directevidence and the case N order to convicct the accused/appj evidence the prosecytion has to ^ prindples laid do^n'by the Hon.3bi| ¥^. of reportel ^r<£ii<VT£ii'[HI^<A*^fe^ iRtf^K ^ ^if^p?'sn^r . ^cused/appeilant. 'as mentloned. in ed counsei for the accysed/appeilant lishra on behalfoffhe State. in orderto connect the accused/app^ilant wth the crime in question there :sts cn circumstantial evldence.and in ^iSant on the basis of circumstantial rove the offence as per the settied Apex Court in She case of i in AiR 2001 Suorem®Coi/rt24i6 \Atierein it is held thatin a case bas^d on circumstantiai evidence, before the Court .can record .conviction, it |Tiust satisly Itseif that drcumstances from wftich an jnferehce of guilt coijid be drav^n has been established by unimpeachable • evidence .led by.j'the prosecution and that 'all the clrcumstances if put together are n<j complete the chain so fully as to u| accused and are not capabie ofan| wth the hypothesis ofthe guilt ofth^ |t only of a conciusive nature but also lierringly point oniy to the guiit of the ^ explanation which is not conslstent accused. ° ••- . . • Learned couhsei forthe accused/ap^eilant argued that there Is'nothing on record to show that the femaie chilB wdiich'VtQS recovered from the bus stand; Pathaigaor) was the child of v^s not found at the instance of th^ npth.lng on record to con-nect the aq child \ftitiich was found at the bus sta^id, Pathaigaon. ;he accused/appeljant. Even th'e body accused/appetiant therefore, there is cused/appe!!ant wlth the death of the [Tt^ Sfo^ r F XI-HC-22 3Tr^[^T fN^^i^ 5^^N»'^? ^r. 8. 9. ^^ ^TPTRT?T» ^xilwi^, ^<??R:f^ w^t^r ^H§<sh ^ii?r -^% ^.........GL:A.-..5!l^JfcAOLl^t _ I^ • • ^^' '^^." 3^?F ^^iP^: 'H^ -tt- On the other hand, Shri U.N.S. Deol supported the judgment ofthe trial C< As far as the giving birth to a .concernedjt. is estabSished by the ^ ha^ stated that she examined the ac| breast v^s enlarged and mTik was uterus \A@S oftwenty four v/eeks one degree. The Sochlya was stin^ .accused/appetiant delivered': a chiid Even tiie accused/appejjant herseif No.12 in her statement under SectJ birth to a chilci eight to ten days prior remains, whether the chjidv^iich - v<^s of the accused/appejiant. in conduded in order to connect the even the body of the child was accused and there is nobody's evic{< piacing the chil.d at the bus stand, P| by the prosecution isthe evidence o^ Khare and P.W.2 Tansukh LaL P.V^ neariy one year back at about 11 .OC| into possessfon the body of a newl^ stand, Pathalgaon. The poiice re| accused/appelJant at the piace and In the cross examlnation he stat©dtji w3s chr^fcTe&vf '^^T?^^S ^R^R ^'N^^^r llearned Addltionat Public pro.secutor ^urt. • - jchiid by the accused/appellant is tidence of P.W.-3 Dr. NAhatey \vho fcused" on 17.03.93 and found fhat her |oming out-on express ofthe'.breast,' as the vagina was surrounded by |n.g and was of red colour and the Mthin one .week of the examinatlon. |ias -admitted' in reply to the question l^n 313 ofthe Cr.P.C. that she gave [to her 'examination. Nov^ the question |s found.at the bus stand, Pathalgaon 1 this . connection- no biood test was chi!d vuith the accused/appeilant and recovered from the house of the Eence who saw the accused/appeliant rthaigaon. The oniy evidence adciuced Investigating Officer P.W.-8, IVSukesh f-2 Tansukh Lai has stated that about -12.00 during the day> the pollce took b'orn child from near a tree at the bus sovered the body after bringing the ?repared panchnama ofthebody P-4. lat he had no knowiedge that tovi4iom nbt [^^^^ XI-HC-22 ^¥F"^r f<'i[-=h 3H^[ 'sFRWeft^ •^ 10. 1.1. H- -3^ -^WRT^, 'S^NFIS, 'f^roy 3ntw.'ER^ _...:...^^.:.CsCo...K^|j1} WH^il ^b^l^ •jss^- 'f^^r" 3?[^f '^^i^R 'Hft^I - -f5- that child was»beio"nging. He .heard iying. P.W,-8 Mukesh Khare In paragraph ft 16.03.93 Teikumvari Bai was having born femate child 'was there and thi under P-2. Jn the seizure memo P-2 iij bag ^A^s. recovered from the accusedi found and P.W.-1 Jamal R?m has possesslon' under.P-2 one bag fron| body ofthe chiid was recovered whe| that the dead body was recovered frcj P-4 is'the naksha panchnama in v^i| •••HStS a polythene bag in v/hich the bo^ same; was lying on the bus- stanc| therefore,..evidence of P.W.-2 contradict each other. On.th'e one i1 Mukesh Khare have 'stated that the p| "accused under P-2 wiwreas P"4 Nj investigating Officer mentionsthat th^ the trolley ofTansukh !ai andto.that ^ In viewofthecontradictory evidence the prosecution has not been abie to body of newiy bqm baby ^A^as in. th accused/appellant and the.re Is no ev bus stand ne.ar the tree and there i <^t^E^t4i TfFR^ff ^ Fs^ <R^^.K '^3rf;?^?^n^?F hat the body of a female chitd was lurOfhis evidence has stated that on ^ plastic bag In v^iich body of new!y 1 same ¥^staken mta possession [has been mentioned that one pSastic |in which dead body ofthe child ^<A^S llso stated that the SHO took into the accused from which the dead ^e as P.W.-2 Tansukh Lai hasstated |m the bus stand In a bag under P-4. fch it has been'mentloned that there |y of newiy born baby was found and near the troiiey of Tansukh Lai, Tanisukh Lal and P,W.-1 Jama! Ram land P.W.-1 Jamal Ram. and P.W.8 |)iythene bag v^.s recovered from the ^iksha Panchnama prepared by the bag..was- lying at the bus stand near' ^ffectP.W.-2 has stated. dye.are bfthe considered opinion that estabiish that th.e 'bag containing the e first jnstance recoveFed from the Idtence that who kept that bag at the s no other evidence connecting the [^ft^tfe^ r ~T~ XI-HC-22 •3^^iPn^FT?-^^FT5, IN^ira^: HIN^I ^W^ ^^?r. ...Q;^:A:...Mdltf'^286^ "^re^r' %^['^T faii^ '3?ni¥i ?b^icft ti(^a 'N'- 1 .V 12. 13. ^^ '^'[IW^^f -6- accused as mentioned earller that possessfon from the bus stand was of Now coming to the question.whether.tlle child died.on account of asphyxia after being born allve, to this effect Dubey, P.W.-6 is reievant v^io has stjated thatthere was contusion over the neck and there v^s a mark of pre^ of: 1/4 ", there was no otherinjuryan.d nostrils. He has further stated-that h lungs which was found positive and (ticoid cartilage was found ruptured and ciots of blood were present theref^re, in view of the above evidence it is estabiished that the child died on acbount pfthe pressing of neck but as has' been .mentloned eariier that the|prosecution' has not been able to establish by clinching and legaily.adiTlissible-circumstantia! evidencethat <^(^[<?t<ili HW<rii "^ fe-A <fa^i< '^^i^R3?i?^i the chiid which was taken into heaccysed/appeilant. the evidence of Dr. Kailash Dutt |sure appiied on the neck In the slze |)lood;v^s 'aiso coming out from the. conducted the floating test of the the chiid in question was delivered by iefi: the child near the tree at the 11 the a.ccused/appella'nt and she'only ^us stand and further.there is no- evidence'that the ac.cused/appeliant ^ranguiated. th.e chiid. Therefore, in view of above, the findings of 1 accused/appeiiant under Section 302 c}fthe IPC caanot be sustained. Consequent!y in view ofthe above di^cussion, it is clear that there is no evidence to showthat the accused sei of the dead body ofthe chlld in orderj the trial Court convicting the cretiy burie.d. or ,otherwise dlsposed Ito conceai herbirth. Therefbre the offence under Sectjon 318 of the iPCJIs aiso not estabilshed against the accused/appeiiant and the convictioti under Section 318 of the IPC recorded by the trial Coprt is not susta|iab!e. . . '' [^^f^ -+- XI-HC-22 ^n^i^i k'llcb 3T^? "^w^ft^ 14. V..-. ^ ^ "g^ ^i<4i^^. "^tem?. fN^r?^^ )i sii^r,'^^ __^...«e...JL-5t:.^.^^(-l5k.;—J %W^z » ^ \^^ •^^" ^iT^l'i^T^T ^feT -~l- !n the result th,e appea! ofthe accus is allowed. The accysed/appe!!ant Sections 302 and 318 ofthelPC an required in any other case. Sd/- L.C. Bhadoo Judge <^R?<n4i<ri ^?FB^{ -^ 'fyS tfa'^si ^r3?N?TaTi^F bd/appellant succeeds andthe ,?ame is acquitted of the charge under she be set at iiberty forthwlth Jf not Sd/- Dhirendra Mishra Judge