THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 45 OF 2007 DATED: 27-07-2010 Between: Malothu Kali ..... APPELLANT AND State of Andhra Pradesh rep., by Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 45 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) The appellant – A1 in S.C No. 624 of 2005 on the file of the learned V Additional District and Sessions Judge (III Fast Track Court), Nalgonda at Miryalguda was tried along with A-2 for the offence under Section 302 IPC. By the impugned judgment dated 27-09-2006, the learned Sessions Judge found her guilty for the said offence and sentenced her to undergo imprisonment for life and also to pay a fine of Rs.2000/-, in default to suffer rigorous imprisonment for one year. Questioning the conviction and sentence, the present appeal has been filed. The case of the prosecution is that A-1 is the daughter of A-2 and second wife of PW 5. PW 5 married A-1 as his first wife passed away leaving a baby girl. Subsequently, they were blessed with four baby girls and the fourth child is the deceased herein who was born on 10-02-2005. As the fourth child is also a female child and as it would be difficult for them to maintain all the four children who are females, A- 1 wanted to give her fourth baby in adoption and accordingly, she took the fourth child i.e., the deceased and went to her parental home at Gudepukunta Thanda, H/o Machavaram Village of Penpahad Mandal and informed her decision to her father A-2 who supported her. On 12- 04-2005, while returning to her house, A-1 along with A-2 made efforts to give the child in adoption and made enquiries with PWs 6 to 8 as to whether anyone is interested to take the child in adoption, but they could not get anyone. As A-1 and A-2 determined to get rid off the child, they hatched a plan to do away with the child and on the same day at about 7.00 PM while they were going to Manchya Thanda from Yathavakilla via Bheelya Naik Thanka and when they reached the agricultural well of PW 4 located by the side of the road at the outskirts of Bheelya Naik Thanda, A-1 mercilessly threw the child into the well. Later, A-1 informed PW 5 that she had given the child in adoption to someone in Suryapet. On 16-04-2005, on receiving information that a body of an unknown baby girl was found in the agricultural well of PW 4, PW 1 the Village Secretary of Bheelya Naik Thanda lodged a report Ex.P-1 basing on which a case in Crime No.26 of 2005 was registered and F.I.R Ex.P-20 was issued. PW 14, the Circle Inspector of Police took over investigation, visited the scene of offence and found the dead body of infant floating in the well. On the next day, he prepared an observation report of the scene under Ex.P-21 and held inquest over the dead body under Ex.P-23 in the presence of PWs 12 and 13. Thereafter, he forwarded the dead body for post mortem examination. On 17-04-2005, on receiving the requisition, PW 9, the Civil Assistant Surgeon, Government Community Health Centre, Huzurnagar held autopsy over the dead body of the deceased. He collected the viscera and sent it to Forensic Science Laboratory for DNA analysis for parenthood identification of the child. Basing on the FSL report, it was opined that the cause of death was due to head injury and that the child is the daughter of A-1. Ex.P-8 is the post mortem report and Ex.P-9 is the FSL-cum-DNA report. During the course of investigation, PW 14 examined and recorded the statements of PWs 2 to 5, 8, 10 and 11 and on 25-04-2005, he arrested A-1. After receiving the relevant documents and on completion of investigation, he laid the charge sheet against A- 1 and A-2 for the offence under Section 302 IPC before the Judicial First Class Magistrate, Huzurnagar who registered it as PRC No.28 of 2005 and later committed to the Court of Sessions. On committal, the learned Sessions Judge, Nalgonda registered the same as S.C No. 624 of 2005 and made over to the learned V Additional District and Sessions Judge (III Fast Track Court), Nalgonda at Miryalguda who framed the charge against A-1 for the offence under Section 302 and against A-2 for the offence under Section 302 read with Section 34 IPC. When the said charges were read over and explained to the accused in Telugu, they denied the same and claimed to be tried. In order to prove the guilt of the accused, the prosecution examined PWs 1 to 14 and marked Exs.P-1 to P-24 and MOs 1 and 2. When the accused were examined on the incriminating evidence adduced under Section 313 Cr.P.C they denied the incriminating evidence and reported no evidence. The learned Sessions Judge after analyzing the oral and documentary evidence held that the circumstantial evidence let in by the prosecution has established that the evidence of PW 5 and the medical evidence which is in the form of DNA report also substantiates that the samples of the deceased matches with the samples of A-1. PW 5 the husband of A-1 though was declared hostile, his evidence shows that A-1 left the house along with her 4th daughter in order to give her in adoption and returned home without the child which clinchingly establishes that A-1 killed the deceased and thrown the dead body into the well of PW 4. Thus the prosecution proved its case against A-1 and accordingly she was convicted for the offence charged and sentenced to imprisonment as aforementioned. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellant – A-1 strenuously contended that there is no evidence let in by the prosecution to prove that the dead body of the infant is the fourth child of A-1. Ex.P-9 FSL report-cum-DNA test report dated 23- 07-2005 of the Scientific Officer (DNA Fingerprinting Expert which is pressed into service is not admissible in evidence as he is not one of the scientific experts specified under Section 293 (4) Cr.P.C. In the absence of any notification issued notifying him for the purpose of sub- section (4) of Section 293 Cr.P.C, his evidence cannot be relied upon to prove that the deceased was the child of A-1. When there is no evidence adduced by the prosecution about their collecting the blood sample from A-1 as per item (5) of Ex.P-9 which is said to be matching with the DNA profile obtained from item (1) viz., small bone with muscle tissue, convicting A-1 for the offence alleged is not warranted. Further, the material witnesses PWs 2 to 8, 10, 12 and 13 have not supported the case of the prosecution. The learned Additional Public Prosecutor sustained the conviction contending that though PW 5 was declared hostile, he has stated that A-1 took the infant baby to Suryapet to give her in adoption as they are unable to maintain the fourth child and that she alone returned to the house. It is for A-1 to explain to whom the child was given in adoption. The report of the expert under Ex.P-9 falls under Section 293 (4)(g) Cr.P.C. Therefore, the said evidence can be taken into consideration to substantiate that the deceased was the daughter of PW 5 and A-1. PW 1 is the Village Secretary of Bheelyanaik Thanda. He deposed that on 16-04-2005 on the information that a dead body of an unknown baby is floating in the agricultural well of PW4, he went to the well and noticed floating of dead body of an infant female child. He lodged a complaint with the Police, Mattampally. He further deposed that the deceased infant girl might have been killed and thrown into the well and Ex.P-1 is the complaint dated 16-04-2005 lodged by him. PW 2 who is an Anganwadi Teacher at Varadhapuram deposed that in connection with the collection of statistics of births and deaths she visited the house of A-1, that she was not there and she was told by the neighbours that A-1 had been to Gudepukunta Thanda (Village) of Penpahad Mandal and delivered a female baby on 10-02- 2005 and based on the said information, she made an entry in the concerned register. PW 3 who possesses agricultural land by the side of the land of PW 4 was declared hostile. PW 4 is the owner of the agricultural well where the deceased is alleged to have been thrown and he was also declared hostile. PW 5 is the husband of A-1. He deposed that on the death of his first wife, he married A-1 and A-2 is his father-in-law. His first wife left one baby and he was blessed with three children through A-1 whose names are Sooramma, Saritha and Rajitha. A-1 gave birth to fourth issue and as they are unable to maintain the infant baby, A-1 has taken the baby to Suryapet in order to give her in adoption. Later, she told him that she has given away the child to somebody in Suryapet. After ten days, he came to know that child had died. PWs 6, 7 and 8 whom A-1 and A-2 are alleged to have approached for giving the child in adoption are declared hostile. PW 9, the doctor who conducted post mortem examination of the deceased found two injuries viz., crush injury on head, skull bones are separated into three pieces and brain tissue putrefied and abrasion on the abdomen wall of 6 x 4 Cms blackish discolouration of injury. Based on the FSL report he gave final opinion as to the cause of the death of the deceased due to head injury and that the said female child is the daughter of A-1. According to him, the age of the injuries might be more than 72 hours up to five days. PW 10 who is a RMP doctor speaks about A-2 coming to his clinic and asking him to come to his house as his daughter A-1 was getting delivery pains and his advising A-2 to take her to nursling home for delivery. PW 11 is the photographer who had taken the photographs of the deceased in the Huzurnagar Government Hospital. PW 12 is the Sarpanch in whose presence panchanama of the scene of offence is alleged to have been conducted. He was declared hostile. PW 13 is the Anganwadi Teacher at Beelyanaik thanda. She was also declared hostile. PW 14 is the Circle Inspector of Police who investigated into the crime. He deposed that he found the dead body of infant floating in the well of PW 4. As it was night he posted two constables to guard the scene of offence and on the next day, he visited the scene of offence and in the presence of panchas conducted scene of offence panchanama, held inquest over the dead body and later sent the dead body to the government hospital for post mortem examination. Ex.P-21 is the panchanama of the scene of offence, Ex.P-22 is the rough sketch and Ex.P-23 is the inquest report. On 25-04-2005, he arrested A-1 and she is said to have confessed about the commission of offence. After receipt of post mortem examination report and DNA test report and after completion of investigation, he laid the charge sheet. From the evidence on record, it is clear that PW 14 has not stated in his evidence about his obtaining the blood sample from A-1 and sending the same along with sternum and femur of the deceased for DNA test. The learned Sessions Judge after taking into consideration the order passed by the learned Judicial First Class Magistrate, Huzurnagar on the requisition made by PW 14 dated 28- 04-2005 directing the Inspector of Police, Medical Officer, Community Health Centre, Huzurnagar and Superintendent of District Jail, Nalgonda to take steps for forwarding the sternum and femur of the deceased preserved by the Medical Officer, Community Health Centre, Huzurnagar and blood sample of A-1 for DNA test, observed that even Ex.P-9 DNA test report bears the reference of the above order of the trial Court through letter Dis.No.821/2005, dated 30-04-2005 and though the requisition and the order of the committal Court are not marked in evidence, yet the Court can rely on the same since they are part of the record and concluded that said record amply establishes that A-1 is the biological mother of the deceased infant baby. Curiously, the requisition of PW 14 and the order of the committal Court dated 30-04-2005 was not put to A-1 when she was examined under Section 313 Cr.P.C. Therefore, no intrinsic reliance can be based upon the said order of the committal Court or the requisition of PW 14. Further, PW 14 in his evidence has not stated about the requisition made by him to direct the Inspector of Police; Medical Officer, Community Health Centre and the Superintendent of District Jail, Nalgonda to take steps for forwarding the sternum and femur of the deceased preserved by the Medical Officer, Community Health Centre. If the said evidence is eschewed from consideration, there is no other evidence to prove that A-1 is the biological mother of the deceased infant baby. Further, as rightly contended by the learned Senior Counsel, the Scientific Officer (DNA Fingerprinting Expert) has not been notified as one of the Government Scientific experts under Section 293 Cr.P.C. In the absence of the same, unless the Scientific Officer is examined to prove the report under Ex.P-9, no intrinsic reliance can be placed upon the said report to connect A-1 with the offence. In view of the same, the learned Sessions Judge was in error in placing reliance upon the requisition of PW 14, the order of the committal Court and the FSL-cum-DNA report to connect the accused with the commission of the offence. If the same is eschewed, there is no other evidence to connect A-1 with the commission of the offence. Therefore, A-1 is entitled to acquittal and we accordingly do so. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant (A-1) – Malothu Kali for the offence under Section 302 IPC in S.C.No. 624 of 2005 dated 27-09-2006 by the learned V Additional District and Sessions Judge (III Fast Track Court), Nalgonda at Miryalguda are set aside and she is set at liberty forthwith, if she is not required in any other case. Fine amount, if any, paid by the appellant – A1 shall be refunded to her. A.GOPAL REDDY, J K.C.BHANU, J 27-07-2010 ks