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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 2282 of 1999
Judgment reserved on 27.07.2018
Judgment delivered on 05.09.2018

 Parwati Sahu, D/o Shyam Lal Sahu, aged about 19 years, R/o Village
Budhar, Mandalpara, P.S. Patna, District Korea (M.P.) (Now
Chhattisgarh)
—- Appellant
Versus
 The State of Madhya Pradesh, Police Station Patna, District Korea
(M.P.) (Now Chhattisgarh)
—- Respondent

For Appellant : Shri Vishnu Koshta, Advocate.
For Respondent/State : Shri Vaibhav Goverdhan, Panel Lawyer.
Hon’ble Shri Justice Gautam Chourdiya

CAV Judgment

This appeal arises out of the judgment of conviction and order of

sentence dated 13.08.1999 passed by Additional Sessions Judge,

Baikunthpur, District Korea, Madhya Pradesh (now Chhattisgarh) in

Sessions Trial No.127/1998 convicting the accused/appellant under

Section 304 (ii) of the Indian Penal Code (in short ‘IPC’) and

sentencing her to undergo rigorous imprisonment for three years

alongwith fine of Rs.500/- and in default of payment of fine, to undergo

rigorous imprisonment for two months in addition.

2. Prosecution case, in brief, is that on the date of incident i.e.

16.11.1997, the village Sarpanch, Ghanshyam vide Ex.P-1 through

village Kotwar Karamchand Das informed the Station House Officer of

the Police Station, Patna, District Sarguja, that one newly born child
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was found near Jagdamba Talab (Tank) and on this written information,

Ex.P-2 FIR No.189/1997 under Section 317 against unknown person

was lodged. On the basis of the written information on the same date

16.11.1997 at Police Station, Baikunthpur by Dr. R. Chaturvedi

regarding the seriousness of newly born child, an unnumbered FIR i.e.

0/97 (Ex.P-16) was also registered by Police Station, Baikunthpur. The

said newly born child was handed over to Sister K.K.S. Khalkho for

treatment and care. On the information given by Khuleshwar on

17.11.1997 M.M. Tiwari (PW-15) merg intimation (Ex.P-15) was

lodged. The child was found abandoned and died during treatment.

Inquest report of child was prepared vide Ex.P-13, postmortem report

(Ex.P-17) was prepared by Dr. R.N. Rajoriya (PW-16) in which cause

of death was shown to be due to respiratory arrest. During

investigation it was found that the Appellant was pregnant before the

incident. Appellant was examined by Dr. Rashmi Verma (PW-19) where

she opined that accused/Appellant was physically and mentally

healthy, breast was full of milk, womb was swelling and bleeding, and

in the mouth of the womb, clots of blood were found indicating 18

weeks of pregnancy and recent delivery symptoms were found on the

body of the accused/Appellant as per examination report (Ex.P-20A).

After examination report was prepared by Dr. Rashmi Verma (PW-19),

Dr. Kalawati Patel (PW-17) also examined accused/Appellant vide

(Ex.P-6A). Spot map was also prepared vide Ex.P-7. After

investigation, charge-sheet under Section 317 and 304(ii) of IPC was

filed against the Appellant.

03. While trial Court framing charge against the accused/Appellant
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charge framed under Section 317 and 304 (ii) of IPC so as the whole

accused/Appellant guilty. The prosecution examined as many as 19

witnesses. Statement of the accused was also recorded under Section

313 of Cr.P.C in which she denied the circumstances appearing

against. She pleaded innocence and false implication. In her defence,

no witnesses has been examined.

04. The trial Court after hearing counsel for the respective parties and

considering the materials available on record, by the impugned

judgment while convicted and sentenced the accused/appellant as

mentioned in para-1 of this judgment.

05. Learned counsel for the appellant submits as under:

 that the accused/appellant has been falsely implicated in this

case merely on the basis of suspicion;

 on the date of 16.11.1997 a newly born child was found and

there is no medical examination conducted by any medical

expert no blood match or DNA test was conducted to hold that

the child belonged to the Appellant.

 After the request of I.O. as per Ex.P-6 blood of child and

concerned lady was not collected and no blood match was

conducted by the medical expert. Therefore, prosecution has not

proved that the accused/Appellant to be the mother of the child

was found near the Jagdamba Talab (Tank). The learned trial

Court wrongly appreciated evidence of prosecution there is no

specific conclusive proof that the accused/Appellant was the

mother of the child found near Jagdamba Talab (Tank). No eye-
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witness no circumstantial evidence to connect the guilt of the

Appellant.

06. Learned Panel Lawyer vehemently argued on that time of incident

accused/Appellant was pregnant and in the medical report given by

Doctor it is proved Appellant recently delivered the child and all

symptoms of pregnant women were found. Medical examination report

of Phuleshwari (PW-5) and Smt. K.K.S. Khalko (PW-7) also proved this

fact that the accused/Appellant was found likewise newly delivered

pregnant lady. Therefore, the impugned judgment keeping in view the

entire evidence by prosecution by legal provisions as such there is no

illegality.

07. Heard counsel for the respective parties and perused the material

on record.

08. Lachan Dhari Dubey (PW-3) and Shuklal Sahu (PW-4) stated that

newly born child found near tank and said child was handed over to

Doctor for care. Karamchand (PW-1) through information given by

village Sarpanch Ghanshyam, the information was submitted before

Police and FIR was lodged. Karamchand (PW-1), Ram Kripal (PW-2),

Lachan Dhari Dubey (PW-3), Shuklal Sahu (PW-4) and Puran Chand

Paikra (PW-8) statement also not challenged in the cross examination.

Smt. K.K.S. Khalko (PW-7) health worker also proved this fact one

newly born child was brought in hospital after information of village

Sarpanch. P.S. Dohre (PW-13), Mukteshwar Singh (PW-14), M.M.

Tiwari (PW-15) Inspector proved the Ex.P-14 information received from

Community Health Centre and merg intimation (Ex.P-15) and FIR 0/97
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(Ex.P-16) was lodges. Dr. R.N. Rajoriya’s (PW-16) postmortem report

(Ex.P-17) clearly proved one newly born child was found near the

Jagdamba Talab (Tank) and thereafter in hospital during his treatment

and care child died. Dr. Kalawati Patel (PW-17) and Dr. Rashmi Verma

(PW-19) who examined the accused/Appellant found she showed

medical symptoms of recently delivered child. It is clearly proved from

prosecution medical expert Dr. Kalawati Patel (PW-17) and Dr. Rashmi

Verma (PW-19). The Appellant was pregnant before child was found

near the Jagdamba Talab (Tank), this fact is also proved by Smt. K.K.S.

Khalko (PW-7) and that evidence adduce by prosecution was not

challenged in cross examination. Considering the facts and evidence

available on record. It was proved by prosecution on the date of

incident i.e. 16.11.1997 examination of Appellant as per Ex.P-6A as per

examination Ex.P-20A Appellant was pregnant and had recently

delivered. I.O. requested to lady surgeon of medical officer regarding

blood test of child and women who delivered the child for conclusive

proof of child belonging to whom, but in this case prosecution has not

adduced any evidence regarding any match of the blood with the

Appellant and child.

09. No blood test and DNA test was conducted, no direct evidence

found against the Appellant. Prosecution story is based on

circumstantial evidence it may be Appellant recently delivered the child

but that child found near the Jagdamba Talab (Tank) was Appellant’s

and Appellant was mother of the said child is not proved before the

Court. On the basis of complete evidence present before the trial Court

suspicion can be go to Appellant but there is no conclusive proof that
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child found near the Jagdamba Talab (Tank) was the Appellant’s. Ram

Kripal (PW-2) in his statement stated when Police Officer went to

house of Appellant she was unable to walk. Sukhlal Sahu (PW-4) due

to illness of prosecutrix he presumed may be child was left by the

Appellant. Sukhlal Sahu (PW-4) declared hostile and he denied the

statement of Ex.P-3 and specifically denied the child was left by the

Appellant.

10. Phuleshwari (PW-5) was also admitted when she was went to

house of Appellant she was unable to move and walk in this

circumstance when Appellant was unable to move and she was ill.

Appellant was left her child it cannot be proved. Only suspicion cannot

be sufficient to guilt the Appellant. Therefore, I have to hold that the

prosecution has failed to prove his case beyond reasonable doubt and

it is also failed to prove with convincing evidence that child found near

the Jagdamba Talab (Tank) was the child of the Appellant.

16. In the result, the appeal is hereby allowed. Judgment impugned is

set aside and the accused/appellant is acquitted of the charge leveled

against her. As the appellant is already on bail. Surety and personal

bonds earlier furnished at the time of suspension of sentence shall

remain operative for a period of six months in view of the provisions of

Section 437-A of the Cr.P.C. The appellant shall appear before the

higher Court as and when directed.

Sd/-

(Gautam Chourdiya)
Judge
Brijmohan