Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 322 (MP)

Hinda Sai v. State of M. P.

2006-03-01

DEEPAK VERMA, R.K.GUPTA

body2006
JUDGMENT Verma, J. -- 1. Appellant Ku. Hinda Bai, feeling aggrieved by the judgment and order of conviction, recorded by Third Additional Sessions Judge, Bhopal, in S.T. No. 459/1991 decided on 3.4.1992 has preferred this appeal. She has been found guilty for commission of offences under sections 302 and 318 of IPC and has been awarded life imprisonment and imprisonment for one year, respectively. 2. According to the prosecution story on 9.8.1991 in village Kekadiya, the appellant who had given birth to a baby girl had strangulated and then buried her. 3. PW 1 Ganpat had informed the police with regard to the fact that appellant had delivered a baby girl but the dead body of the baby girl was found near the field of Sardar. Station House Officer, Ratiwad sought permission to dig the dead body. At the instance of the appellant vide memos Ex. P-2, Ex. P-4 and Ex. P-5, dead body of the baby child was recovered. The dead body was sent for postmortem examination. PW 14 Dr. Bhanu Prakash Dubey conducted the postmortem and found that the death was due to strangulation. He accordingly opined that the death of the child was homicidal in nature. Appellant was also examined by PW 15 Dr. K. Naik. She also deposed that appellant had delivered a child within 48 to 72 hours from the time of her examination. Ex. P-20 is her report. During the course of investigation, on the strength of marg intimation, it was found that the appellant was unmarried at the time she delivered a child. Thus, with intention to hide this fact that she had delivered a baby girl, she strangulated her and then buried the dead body in an open area. 4. After usual investigation charge sheet was filed against the appellant under sections 302 and 318 of IPC. The appellant abjured her guilt. Her defence was that it is not disputed that she delivered a child but delivery had taken place in an agricultural field and at the time of delivery she had become unconscious. Thus, she was not aware, if she had delivered a live child or still-born child. 5. Prosecution examined 15 witnesses on its behalf. The appellant also examined Kunwar Bai her sister in defence. 6. Thus, she was not aware, if she had delivered a live child or still-born child. 5. Prosecution examined 15 witnesses on its behalf. The appellant also examined Kunwar Bai her sister in defence. 6. On appreciation of evidence available on record, the learned trial Court found the appellant guilty for commission of offences under sections 302 and 318 of IPC and awarded sentences as mentioned hereinabove. Hence this appeal. 7. We have heard the learned counsel for the parties and perused the record. 8. It has not been disputed before us that appellant had delivered a baby girl on 9.8.1991. In fact the appellant admitted this fact that she had delivered a baby girl but her defence was that since she had become unconscious at the time of delivery, which had taken place in an open field, she is not aware whether the child was alive or a still-born. PW 1 Ganpat, PW 3 Surbai and PW 4 Bundal Singh, the other material witnesses have turned hostile and have not supported the prosecution story. 9. PW 14 is Dr. Bhanu Prakash Dubey, who had performed the autopsy on the dead body of the deceased. PW 15 is Dr. K. Naik, who had examined the appellant to prove with regard to delivery within 48 to 72 hours. Other witnesses to seizure and other items are formal. On the information give by the appellant the dead body was recovered from an open place near Mahua tree vide Ex. P-5. PW 7 Devi Prasad Sharma has denied his signatures on Ex. P-2 as well as on Ex. P-5, the seizure memo. 10. Even though the learned trial Court has held that death of baby girl of appellant was homicidal in nature but from the evidence available on record, specially that of PW 14 Dr. Bhanu Prakash Dubey it is not clearly established. It appears that it could be a case of accidental strangulation. Doctor has deposed that in the neck of the deceased umbilical cord was tied. He has further admitted that the said umbilical cord was around the neck of the deceased in 3 rounds and was sufficiently tight. The said umbilical cord was tight between placenta to neck. The total length of this umbilical cord was 52 cm. The distance between navel and the neck was only 13 cm. He has further admitted that the said umbilical cord was around the neck of the deceased in 3 rounds and was sufficiently tight. The said umbilical cord was tight between placenta to neck. The total length of this umbilical cord was 52 cm. The distance between navel and the neck was only 13 cm. Thus, it is fully established that the umbilical cord was tightly running around the neck of the deceased in 3 rounds and was sufficiently tight, which could be the cause of strangulation. 11. No doubt it is true that accidental strangulation is rare but it can occur when an article of clothing, a neck band, a cord or a chain is tightly drawn round the neck all of a sudden. From the medical evidence it could not be established that after the birth of the child it was appellant who had tied the said umbilical cord around the neck and had pulled it so hard to have caused strangulation. This burden was on the prosecution, which it has failed to prove it. 12. Doctor has also not opined that any other marks were found on the neck of the deceased, .which could be of fingers or cloth. Doctor has deposed that ligature marks were seen around the neck but same can be caused due to umbilical cord which was found around the neck of the deceased. As has been mentioned herein above that it could not be established that the umbilical cord was tied by the appellant after the birth and thereafter she had buried her child with intention to conceal the birth of such a child. 13. The distinguishing feature of accidental strangulation causing death of an infant by umbilical cord, which may occur in utero is that it is not so much damaged as seen in a homicidal strangulation by it. Thus, it is pertinent to mention here that the Doctor has not deposed that umbilical cord was so much damaged, which could be indicative of the fact that the same was tied by the appellant around the neck of the deceased to cause death so as to conceal of the delivery of a child. The prosecution has failed to prove this fact and burden lay on it. 14. There is no direct evidence available in the case. It is based on circumstantial evidence. The prosecution has failed to prove this fact and burden lay on it. 14. There is no direct evidence available in the case. It is based on circumstantial evidence. The chain of circumstances are not complete so as to point the guilt only towards the appellant. 15. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The appellant is a rustic villager who had delivered a child in an open area without the help of any medical assistance or even a midwife. She would not be knowing that by tying the umbilical cord around the neck of the child, she would be strangulated. Thus, we are of the opinion that it was a clear case of accidental strangulation, which might have occurred in the uterus itself and before the delivery. It is also seen from the record that the appellant freely carried her illegitimate child for a period of 9 months in the village and did not take any steps to get it aborted. Had she been really afraid of carrying of an illegitimate child in her womb, she could have got it aborted. Thus, there does not appear to be any intention or reason on the part of the appellant to have caused death of her child. 16. For the reasons recorded hereinabove, we are of the opinion that the benefit of doubt has to be extended to the appellant. The appellant has already remained in jail for more than 5 years. She was granted bail by this Court on 10.1.1996. 17. The appeal of the appellant is hereby allowed. The conviction and sentences of the appellant are hereby set aside. Appellant's bail bonds furnished by her, shall stand discharged.