.3^ ae ' \i-'t:'iin3!j IN nffi HIQi CajRT OF JUDICATJFS AT_JABALRSi CRIMINAL APPBAL H0^^_-^ /1997 1S.^ /sif^h^ »..-Ax^i3.Ai- D^.'j'f l^\ is.'r' '•a« <'Vn\SV'^~ talIE ^.i:.i.stg-; >p, APPE/U,_UN:^._®CTION_374{2),,jOF^raE_C®EOF CRXMINAL _PBlXEWRE. -. / XI-HC-22 ''•^-|!i»" 1?;lN 311^1 "Sswa HON'BLE SHRI LAL CHAND BHADOO.J. AND 1. -a^ ^-jjtlld'4. '^ftWTS. feirey /@ .Q^...A..:.y^..:..2-.sc^ /^ "M -^oo sn^i TOITOI: ^cfs^ HON'BLE SHRI VIJAY KUMAR SHRIVASTAVA, J ^ipi{?piiTi iiw^i'? iscQ <M^R •ST aipgif SH^T Addititaal Mr. A.K.Prasad, Mr. Tiwari, counselfor fh4 Mr. U.N.S.Deo, Ravuidra Agrawal, respondent/ State. Heard. Ejeepak Jam and Mr. Rajesh accused/appellaat. Public Prosecutor and Mr. Lawyer for the Pajtiel ORAL JU&GMENT Ttus appeal has been jdirected against the judgiaent of conviction and order of sentend dated 13-11-1997 passed by Addition.al Sessioas Judge, Ba^oda Bazar ia Sessions Trial No. 164/1989, whereby the lear^ied Additional Sessions Judge, after holding the accused/appeBaat Ku.Subhadrabai guUty for commission' of fhe offences punijshable und.er Sections 302 and 201 of the Indiau Penal Coc|e, sentenced her to undergo imprisorunent for life and to pay ^. fiiie ofRs.5,000/-, ia default of / '-' " i payine^t of fiiie to undergo furtlier rigorous^ im.prisoiLment for 1 1 [•q^^feq y, w. XI-HC-22 ^-g ^iraiwt, •s^wis.'fa^RT'F ^. Sl^nqiT •f?;li?73Il|W ^TqW^llig ! sii^r yRirere'Bft7' year, and to undei^o rigprous im^ a fine of Rs.1,000/-, ia defaultl further rigorous imprisoniaent sentences awarded to fhe accusd and 201 of fhe Indiau Penal concurrentlv. ^Hlcn4];T ^fi*^? ^ fe[^ •^-aiPtpT an^ irisoirment for 3 years and to pay of payment of fine to uiidergo Ibr 1 year respectively. The d/appeUant under Seetions 302 kide have beeu directed to run 2. The prosecution ea^e Munnalal, fhe Kotwar of fhe Vffla^e intLmation, Ex.P-l to ttie Static^a Kasdol on 7-2-1988 to the efFect dried up as 'there is no water in| newly bona. inale child is Ivinp ui ]fhe said Pond. On receiving fhis report, Ex. P-1, the Station Houjse Officer S.K. Yadav, P.W.-17 icgistered a Dehati NaUsi, Ex.P- i, ia brief, is that, P.W.-2, Sarwa, made a report i.e. merg House Officer, Police Station that the Pond of his village is fhe saiue. A dead bodv of one 2 and after giying notice to fhe Panchas under Ex. P-2, prepared ^i Paachnaina ofthe dead body of the newly bora inale child uader px. P-3 aad he prepared fhe site- plan under Ex.P-13. On 13-2-19|88, he gave a written requisition -. / [Tft^^feq ^ h-KSS llSS XI-HC-22 3ilt^CqiI 'f^'TWSIli?! gwwHfig ^S! ^IpIRTq, '^atOTs, i«iWI'M1< 3 sn^g ^aiwdftti VpSvPfH TW^i ^ 'feIZt TN^R ^; aiPtn sni^i under Ex.P-SA to Govermneat H(}spital, Baloda Bazar. P.W.-9, Dr. "'imt. Jaishree Dave, who was Iposted ia Govemiuent Hospital, Baloda Bazar, examined fhe accijised/appellant Subhadrabai, aad gave opiaion fhat there are si^ns present in fhis case which mdicate fhat Subhadrabai had delivered a fetus wittua 10 to 15 days before, and her report to th^ the accused/appeUaiit Subhadia^ tefiectisEx.P-3. On 17-2-1988. iai gave a laemoranduin, Ex.P-7, upon which the half piece of fbe handkerchief was taken iato possessions froni a Bush-of Besh^am under Ex. P-8 and the under- ^annent was taken iato posses^ion under Ex. P-9. The Station House Officer S.K.Yadav, P.W Hospital, Bilaigarh for exarauiatifjin of fhe dead body of the newly bom cluld under Ex.P-17. P.W who was posted at Govemm.ent -17 lequested to Goveminent |-12, Dr. Chandrashekhar Patel, pospital, BUaigarh examined fhe dead body of the newly bora iua|'e cluld and gave report Ex. P-6. After eompletion of the mvest^ition, a charge-sheet was filed against the accused/appeUant S^ibhadrabai along wifh Gaugabai in fhe Court of Judicial .Magistrat^ First Class, Baloda Bazar, who, ^ / [-te^i» S t^ '-.' .J-. XI-HC-22 s!a ^•:^^ ^5} -SIPTRPT, •^"OT®.feiray- U6, i. 3Tit^%i •f?s(RT3]g?l grqw^re^ an^i'^siiwa^d +^!ri41-i wiaf -B'istst ^sifensn^i ia tum, committed fhc case to Se^sions Judge, Raipur, wherefrom fhe Additionai Sessions Judge rtceived fhe case on transfer for trial. Duriag fhe trial, fhe pther ^i the triai proceeded against t(ie present accused/appeUaiit Subhadrabai. y. •cused Gangabai died, fhercfore, The prosecution, ia orper to prove flie ofFences agaiast the accused/appeUant, examiaed ).8 witnesses. The statement of the accused/appellant was recorde^l under Section 313 offfae Code of Criminal Procedure, in whic^ evidence and further stated fhat s^e has been falsely iniplicated in ffae crune. She also produced Jeevanlal, D.W.-l. The leamed A^lditional Sessions Judge, after hearing the arguments of leamed| she denied the prosecution one defence witaess namelv counsel for both fhe parties, convicted aad sentenced fhe accu^ed/appeUant as mentioned in jfhe earlier part ofthis judgment. -. / [•qt^^fig^ r Al-r:.C-22 sss ^'?1^' VK-S SII^T^] •T?TRT 3Wv;ri sn-Htcn 'rF1^a ~2~~S;! "-iaj^J^I^. <^^f<-;-f<c, :|';^%ls-;^.'\ xr^'^iT "^^Ts^ y Wi 2TO iq^isi' an^i'^giWCTitn We 'have heard th| parties. o. (he accused/ appellant deUvered "'SRtea'RWff -i, ^w •i^RTT 37 SfRfq SIR^I leanied couasel for both tlie Learaed coiuisel f<jr fhe accused/appeUant ai^ued that, ui tliis case, there is ci|3 eye-witaess to prove fhat fhe accused/appeBant Subhadrabaji delivered aMve cbild and flie evidence ofP.W.-9, Dr. Smt, Ja|lshree Dave is not conclusive fhat alive child. Even the body of fhe , Jaishree Dave, P.W.-9, fherefore, cluld was not shown to Dr. Sint fhe coaviction of fhe accused/^.ppeUant ixader Sectioris 302 and 201 ofthe Indiaa Penal Code is 6. On fhe other hand for ffae i-espondent/State, argui P.W.-9, Dr. Sint. Jaishree Dave Patel, it is estabUshed that, delivered the alive child aud fhe thrown in the Pond. -. / bad, leamed Panel Lawyer, appearius +d fhat, in view of the evidence of iand P.W.-12, Dr. Chandrashekhar ft^e accused/appeUaat Subhadrabai iclreafter fhe child was murdered and ['Ift^^Tt 3\5^ '^^~-^r'_/"'•• ,,!fBI if AS'IJSI: 9W •ai^r^iT t^N? -STlt^ "T^7 W^-i ^J.. '&'iKPi^, li^iW'-< 3i*S ^ii'^iT ?s^T^' •M1 2Ufl B'CTeigiw^ifttT 6- ^•'ii'ri'^-i. 'Vu^f "$ fe^ Tf^^CTt waififl^gn^r 7. HaviHg heard the le^med counsel for fhe parties, we have perused fhe record. In ttiis^ prove fhe case by produ^ accused/appellant Subhadraba4 Krishna Kiunar, aad on acc conceived. As Subhadrabai Chaiidraaiaui, the brother of case, fhe prosecution has tried to ing fhe w7itnesses tbat the had physical relationsliip with ^vmt of fheir cohabitation, sbe was uniuarried, fiierefore, after deliveiy, the child was inunjlered aud thrown, but P.W.-5, the accused/appellaiit has not supporfed fhe case and lias stajed that he uever took his sister to i fhe house ofGiingabai for the p^irpose ofdelivenr ofchild. P.W.-6, Rangela has stated that Subhatlrabai was kaown to him; but he had no rtlation with her abd he has no laiowledge fhat Subhadrabai had anv relation ^ith aavbodv else and fhat she was pregnant. Krisluia Kumar ali^.s Munna has been examined as P.W.-ll, who has also turae(( prosecution case aud has statep hiui, but he had uo relation Dharamlal, Mehar and Rangela| jl hostUe and not supported ttie that. Subhadrabai was knowii to wtith ith her. He has also stated that, were knowri to him, but he had no [TTt^ ^fe^ > IP: «9 XI-HC-22 •?J3R»il' 's^ ~:WvPf, 'awww.'W^'My. ^ 7 SiI^T'qiT •M?7 311^1 sb-ii+^lfN sn^I X^IISSR'dfttt knowledge Chat Subhadrabai hadl He had np kaowledge fhat Subhajlrabai was ever pregnant or not. "tutned hostile and he has not P.W.-13, Hariram has also "tu supported the giving of the Ex.P-8 aad P-9. Therefore, mttu! estabUshiag fhe fact that Subhad^abai was ever pregnaat aad she ! deUvered fhe alive child. Tbe whole case rests on fhe circiun.staiitial evidence i.e. fhe| evidence of P.W.-9, Dr. Sint. Jaishree Dave and P.W.-12, Dr. IChandrasbekhar Patel aad fhat one piece of haadkercbief was ijecovered at fhe iastaace of fhe +l^t?l<?!-i tlTWff^fyS ^RZR i? sipgii 3D^( auv relation wifh. fhem. or not. nieinoiiaaduui ladum., Ex. P-7 aad the iccovery, case, ftiere is no direct evidence accused/appeUant Subhadrabai from. fhe Bush of Beshrain. In order to prove fhe offence agaius^ fhe ctrcuinstaiitial evidence, befofe fhe Court cau base conviction on circum.stanfiai evidence, ttie circum.staDces froin which an. iuiference of euilt could be drawa have been estabUshed bv uniojlpeachable evidence led bv fhe prosecution aiid that all ttie circ|uinstances put togefher are not onlv of a conclusive nature but a|so coiaplete the chain so fuUv as •- / fhe accused/appellaat based on Court inust satisfy itself ffaat ['q^'^fe^ ^ XI-HC-22 srt :^ '3^3 ^ffqRP!, ^ftWTs, ^<1i*ill< sntn'eBT f^^ail^T sh*1i<* "Hftcf an^i^^iWHfro to unerrmgly poiut only to the g{ capable of aay explanation. whi^ hypoftiesis ofthe guilt of th.e accu^ fhe Apex Court ia the case of Nesajr of Bihar, reported in AIR 2001 these principles that, we shaU prpceed to scrutuiise •the evidence adduced by fhe prosecution. 8. •*i<<;cf<il-) 'wrcff ti fs^ ^SlPgq 311^1 tult of the accused and are not ;h is not consistent witb the' ^ed, as has beeii held by Hon'ble Ahmed and another vs. State gC 2416. It is on the basis of P.W.-9, Dr. Sint. Ja^shree Dave had examiaed the accused/appellant Subhadrabai rd she had delivered aay child. She Ijias stated ftiat, based on cluiical examinationof Subbadrabai, she to 15 days before, Subhadrabai h^ order to ascertaia as to whefher k'eached to a conclusion tb.at 10 d delivered fetus, and her i^port to fhat effect is Ex.P-3. In cross-e^amiaation, she has categoricaU.y stated that, she had not seen the jfetiis. TIie fetus niay have.been of 6 nioiifhs, aad based on tU^ Subhadrabai, it is not possible tq was not in. a position to state as| deyelopp'd or not. P.W.-12, Dr.| ^c^-f-————"' examiaation of the woinb of dve the ase of the cluld. She to whether the chfld was .fLdly Chaiidrashekhar Patel, ia his [^^fe4 ^ XI-KC-22 ^ei -4|t|idJ-t, tfTil'y'is. facii^y ^&:i^^' -3 sn^i'si h-u^ sn^i ^"i<=ft ^tft<i 3Ti^rwraT'(rit?r dii«fri41-it<!N??i'?1?<sr tfa^it ^; sipgii sii^i evidence, has stated. that, the chU^l was bom after a full period and he died ou account of asphyxia 1|>y putting a cloth in his inouth. He examined the lua.gs, but hyd^ostatics test was not conducted by him. He has further stated tt|at, even wifhout this test, it can. be ascertaiaed as to whether fhe Echild breafhed after takiag birth or uot. Therefore, on the basis ofjtlie evidence ofP.W.-9, Dr, Sm.t. Jaishree Dave aud P.W.-12, D^. Chaadrashekhar Patel, it is i difEcult to reach to a dlefinite conclusion that fhe accused/appellant Subhadrabai g^ve birfh to fhe saiae newly bom baby, whose body was fi?uad ui|the Pond. Apart froin that, ia order to hold the accused/appell^nt guilty for coinmission of the ofFences punishable uitder Secti4ns 302 and 201 of fhe Indian Penal Cade, fh.e prosecutiou wa^ circiunstantial evidence that fhe ;ave birth to alive babv. Dr. Ch^ ^ reqiured to produce clmchm.^ laccused/appenaiit Subhadrabai ^ldrashekhar Patel, P.W.-12 has stated fhat, he had not conductejd hydrostatics test, but ivithout fhat test it caa be ascertaiaed a; aUve 6r not. To prove aad subst^utiate ftie evideuce, he has not to whether the babv was bora -. / [Tft^ ^f^? ?«^: iy -3-^ ^WWI, 'S^KfW. WVIWW, (o- 311^'^il R-iW 3W^I shHW fSts an^r ^grwHftCT made clear in so inqpy words fh.at ^T^t4^ iff^^f ^ 'fe^ll •rf^l^K ^; sipw •sn^^t ^vhat was' the basis for that. In absence of aav reason, it is dxBicult to believe fhe evidence of this -, -. „."'"]" ~ ~'"' -•—.- doctor. He has not stated thaf wh^t type of test was conducted by him to ascertam whether the childlwas bora aUve or not. Even he has not conducted the hydrostatic^ test. In order to prove the fact tbat the child was bora aUve, the d^ctor ought to have explamed iu his evidence fhat the test conductefcl bv liim i.e. fhe exanunation of fhe lungs was cent per cent per^ct. Therefore, in view of the iasufiBcient evidence of P.W.-12, pr. CIiaiidrashekhar Patel aad P.W.-9, Dr. Smt. Jaishree Dave, it is difBcult to reach to fhe conclusioa that, fhe accused/app^Uaat Subhadrabai gave birfb to the newly bom baby, whose body.^vas found in fhe Pond and that she gave birth to aU.ve cluld. In olrder to ascertain that ctuld was of Subhadrabai, Doctors could ha'j?e conducted the D.N.A. (Deoxy Ribonueleic Acid) Test. 9. A piece of a hand^rchief was recovered at fhe iastance of fhe aeciised/appeUaa^ ^"7~ fi-oin a Bush of Beshram and [Tft®^fig4 •^\ "\ XI-HC-22 •S-s, •S[raRTq, 'gTTpcFIc, recTR<y ^ (I— t" •Bi^'BqiI ^Tisi-sn^r I gTEIRT'Hfta i an^i ?%raT'8ft?r qrf?pfriT ^wvS •?fsvt 'rfSnzR ^sipgitSD^; fhe part offhe sam6 handkerchi|;f was found in the nioufli of fhe uewly bom baby. In tfae first ^nstance, tbere is no evidence to estabUsh that, that h&ii<|lkerchief belonged to fhe accused/appeUant. Apart froin t^iat, fhat pieceofthe handkercluef was recovered from an opeu pla^e i.e. the bush which could have been seen bv anvbody as the bocUy ofthe child was also found near tUe hush itself and before the ac^used/appeUant Subhadrabai was taken t6 recover fhat piece of pie handkercliief from. fhe bush, number of persons saw the bodj' of the newly bora baby lying on fhe bush and on account of thsjt the inatter was reported by the Kotwar of the village to the Polic wifh fhe crirue ineielv on the bas 10. view of the fori' Station. Therefore, no credence caii be given to such recoveiy a(id accused can not be connected s ofsuch recovery. ;oiag reasons, we are of tlie considered opinion fhat, the pr{)secution has failed to prove fhe criine against ttie accused/appe^ant for coinmission offhe offence uiider Section 302 oftiie ladian jPenal Code i.e. giviag birth to alive I baby and'lhereafter to xaurder ft(e baby. Consequenfly, the offence -. / [Tfls^te^ ^ s 'fl'y 3-g ^Wfvi4,- ^•dlwiri, i«i<ii*<3< SH^t^t f?;ri?>'3]i^i sh*<l'*TO?iI 3<=eb c7 '/ !'-< ITV' <^. f\^.z6G'S/Q^ HMWI ShWS ,„ sn^i•^mwafei (^;^te4}Tf "^FRff ^ f^x^r ^<^R ^srf^iHsntvi under Section 201 of fhe India^i Penal Code autoiaatically goes away as when fhe prosecution Rias not beea able to prove tlie offence itnder Section 302 of thl Indian .Penal Code agamst tiie accused/appellaat, fherefore, the^-e is no question ofoffence luade out against the accused/appellajit for cpmmission of the offence punishable luider Section 201 of fhe Indian Peiial Code. _ 1 . 11. In fhe result, the aflpeal is ailowed. The convictioa and sentences passed agaiast fh^ accused/appeBaat Subhadrabai for commission of the ofiences pijiushable under Sections 302 and 201 of the Indiaa Peaal Code ar4 set aside. She be set at liberfar forthwith, ifnot required in any o Iher crune. ^d7- L.G. Bhndoo Jadge Sd/- V.K.Shrivastava Judge [^^firt k