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
The State of Madhya Pradesh, Police Station Patna, District Korea
(M.P.) (Now Chhattisgarh)
For Appellant : Shri Vishnu Koshta, Advocate.
For Respondent/State : Shri Vaibhav Goverdhan, Panel Lawyer.
Hon’ble Shri Justice Gautam Chourdiya
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
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
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-
witness no circumstantial evidence to connect the guilt of the
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
07. Heard counsel for the respective parties and perused the material
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
(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
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
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.