¢mFEE g Vi} ‘ I " I\ \BH g$’”é;f ‘ i “Hmgmol‘om‘ugmuw‘m IN THE HIGH COURI' OF MADHYA PRADESH AT JABNJPUR CRIMINAL APPEAL No§§77~l OF 19%; / ? : Ysantna Bai wife of Féto Suryavanshi APPELLANT aged about 44 years; Cultivator, resident of village—vchohat Police station— MasEoori a District—Bilaspur. VERSUS / RESPONDENT s The State of Madhya Pradesh CRIMINAL APPEAL UNDER SECTION 3'74 (2) OF TFE CODE OF ~*t:~7:’—r—:..\ m ~ A\ x :v; HIGH couRT OF CHHA1TI$GARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Crimma! Appeal No. 2077 of 1996 ‘ a santra Bai APPELLANT VERSUS RESPONDENT State of Madhya Pradesh Shri B. M. K. Bajpai, counsel for the appellant. Smt. Smita Ghai,P.L. far the State. V‘ CRIMINAL APP§AL UNDER $E¢TION 374 (2) OF THE CODE OF CRIMINAL PROCEDuna. § ‘ JUDGMENT (21.04.2011) The present appeal arises out of the judgment and order dated 31.10.1996 passed by $econd Additional Sessions Judge, Bilaspur in Sessions Trial No, 105 of 1995‘convicting the accused/appellant under Section 315 of IPC and sentencing her to undergo rigorous imprisonment for three years. 2. Case of the prosecution in brief is that Punidas (PW-10), Kotwar of the village Pakariya ‘upon receiving information from Birdas, Kotwar of the viilage Bhagwanpali that a recentiy born baby was lying dead near the pond, we‘nt to the spot and saw the same and then Merg Intimation Ex. P-13 was given by him on 25.03.1994 before Masturi P'oiice Station. Based on this report, FIR Ex. P—7 was registered for the offence under Section 315 of IPC. After investigation Chalian was filed on 16.08.1994‘aagainst the accused/appeliant and the acquitted accused Mohan under Sections 315 and 318/34 of IPC. Allegation against the accused persons are that the present appellant was having illicit relation with the acquitted accused Mohan and the said Mohan administered some medicines to the appellant as a result of which she gave’birth . ,Q‘ a dead baby and thereby the accused persons have committed the offence preventing a child frcm being born aiive. 3. So as to hold the accused persons guiity, prosecution has examined 10 witnesses in support of its case. Statements of the accused persons were aiso recorded under section 313 of the Code of Criminal Procedure in which they denied the charges ievelied against them and pleaded their innocence V c and false implication in the case. 4‘ After hearing the parties the trial Courtlhas acquitted the co—accused Mohan of all the charges levelled against him whereas the appellant though has been acquitted of the offence under Section 318 of IPC but convicted and sentenced for the offence under Section 315 of IPC, hence, the present appeal. 5. Heard counsel for the parties and perused the, material available on record including the judgment impugned. 6. Contention of Shri Bajpai, learned c0unsel for the appellant is that even if the entire case is taken as it is, no offence whatsoever is made out against the appeilant. He submits that there is absolutely no eviderite on record to show that any medicine was consumed by the appellant or any medicine was administered by the acquitted accused Mohan. According to him, for convicting the appellant under section 315 of IPC it has to be proved that she has done an act with intentto prevent child being born alive or to cause it to die after birth. He lastly submits that as most of the witnesses have not supported the prosecution case and turned hostile, the appellant deserves acquittal. § :3, « 7. 0n the other hand supporting the impugned judgment it haSi been argued by Smt. Ghai, learned counsel for the Stete that the conviction pf the appellant is strictly in accordance with law and there is no infirmity in the same. 8. Dr. Smt. Vimla Jain (PW—1) who had medically examined theappellant and given her report Ex.P-1 dated 17.04.1994 has stated that 20-24 days prior to the date of examination, the appeliant must have delivered a child. Shivshankar Due‘(PW-2) - the Head Constable had recorded the FIR Ex. P-7 and done part of investigation. Kudbal (PW-3) is a witess of dad‘body Panchnama. Manglu (PW—4), Santram (PW-5) and RamSagar (PW-6) who are the witnesses of dead bod anchnama have not supported the prosecution case an turned hostile. The Investigating Officer Ramesh Pandey (P-7) has supported the prosecution case. Assistant Sub Inspector Sntosh Singh (PW-8) recorded the Merg intimation Ex.P-3. J. N. Shrivastva (PW-9) who had examined the fetus an ven his report Ex. P.14 has not stated anything against anyone. Punidas (PW-10) is the Kotwar of the village who ha seen the dead body of a child near the pond and lodged the Merg timation Ex. P—13. a 9. nut examination of the evidence refleéts that there is nothing on the record on which basis conviction of the apllant nder Section 315 of IPC can be upheld. There is absolutely no evidence on record to show that the appellant bere birth of the child did any act with the intention of hereby pventing tat-fetiild from being born alive or caused it to die after its birth, and did by such act prevent that child from being bom alive, or caused it to die after its birth. Thus, t asic ingredients to convict the appellant under Section 315 of IPC are missi in the case in hand. T ; ‘ l by‘ n‘ e ‘ d y P W a 1 d gi d in Mie i pe u fo t re h he b ng -Hw 10. In the result, the appeal is aHowed, Impugned judgment dated 31.10.1996 is set aside. Appenant is acquitted of the charge ievelled against her. Appenant is on bail. BaiHfmnds s0 furnished stand discharged. Sd/- ‘1 Pritinker Diwaker Judge I