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2007 DIGILAW 1289 (MP)

NAFISA v. STATE OF MP.

2007-12-13

S.I.KOCHUR, S.R.WAGHMARE

body2007
Judgment S.L.Kochar, J. ( 1. ) The appellant, by filing this appeal, has lodged her grievance against the judgment dated 19.11.1998 passed by the learned Addl. Sessions Judge, Garoth District Mandsaur in Sessions Trial No. 225/93 thereby convicting the appellant under sections 302 and 201 of the Indian Penal Code and sentencing her to imprisonment for life with fine of Rs. 2,000/-, in default of payment of fine to suffer additional R.I. for one year and to suffer R.I. for five years with fine of Rs. 1,000/-, in default of payment of fine to suffer additional R.I. for one year respectively. ( 2. ) Laconically, the facts of the prosecution case as put forth before the trial Court are that on 26.02.93, at village Boliyua in Kanthali river a corpse of an infant male child was found floating by Chowkidar Narayan who reported this fact to Police Station Garoth. The police registered a MARG intimation Ex.P/1. A Panchnama Ex. P/2 was prepared by the police and the corpse of the male infant was sent for postmortem examination to the hospital, which was conducted by Dr S.S. Vijayavargiya (PW-11) The postmortem report is Ex.P/12. According to the medical expert, the death of the child was homicidal in natured and the cause of death was asphyxia within 48 hours from the time of postmortem examination. In MARG inquiry, it was revealed that the appellant was an unmarried woman having a foetus and she gave birth to a male child and thereafter committed murder of this child by strangulating and threw the corpse in the river. The spot map prepared is Ex. P/4. The appellant was also got medically examined and her medical report is Ex. P/10 given by Dr Chaudhary (PW-13). Police registered crime against the appellant. The FIR is Ex. P/14. After due investigation, the appellant was charge-sheeted for the above noted offences. ( 3. ) The appellant denied the charges and submitted that she was never having any pregnancy while she was virgin and only after her marriage she gave birth to a male child and that she has been falsely implicated due to enmity in the village. ( 4. ) In order to prove its case, the prosecution examined as many as 15 witnesses whereas the appellant did not examine any witness in defence. ( 4. ) In order to prove its case, the prosecution examined as many as 15 witnesses whereas the appellant did not examine any witness in defence. On conclusion of trial, the learned trial Court, finding the appellant guilty, convicted and sentenced her as indicated herein-above. ( 5. ) We have heard learned counsel for the parties and perused the entire material available on record carefully. ( 6. ) Learned counsel for the appellant has not disputed the homicidal death of the child and submitted that the prosecution has failed to establish that the appellant gave birth to the said child. He also submitted that the learned trial Court in para 27 of the impugned judgment has erred in holding that the appellant gave birth to a live male child, but failed to adduce any evidence as to where the child was an d whether he was alive or dead, whereas the prosecution has failed to establish the identity of the child with the appellant. ( 7. ) Learned counsel appearing for the state, in oppugnation, has submitted that the prosecution has proved the homicidal death of the male child found floating in the river on 26.02.93 and the appellant gave birth to the male child on 19.02.93. During that period in village Boliya only two ladies viz. the appellant and one Ushabai had the deliveries. Therefore, the burden was on the appellant, as per provision under section 106 of the Indian Evidence Act to show as to where the child was and whether the child was alive or dead. He has further submitted that since the appellant failed to discharge this burden, presumption can be drawn against her as per provision under section 114 Illustration (g) of the Indian Evidence Act and therefore, the learned Trial Court has rightly come to the conclusion and convicted the appellant. ( 8. ) To resolve the controversy, it would be apposite to reproduce section 106 of the Indian Evidence Act, which reads as under :- "106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." ( 9. ( 8. ) To resolve the controversy, it would be apposite to reproduce section 106 of the Indian Evidence Act, which reads as under :- "106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." ( 9. ) In our considered view, there is no application of provision of section 106 of the Evidence Act in the facts and circumstances of the present case, because there is absolutely no evidence led by the prosecution to establish that the body of the child which was found floating in the river was of the same male child to whom the appellant had given birth. There is no direct evidence available on record to show that that male child was given birth of by the appellant or prior to finding his dead body in the river he was seen with the appellant. In the absence of this evidence, the ;prosecution has failed to discharge its burden to establish beyond reasonable doubts that the appellant gave birth to a live male child body of whom was found floating in the river. ( 10. ) The Supreme Court in the case of Sawal Das V/s State of Bihar ( AIR 1974 SC 778 ) while interpreting the provision of section 106 of the Evidence Act, observed as under:- "The burden of proving a plea specially set up by an accused certainly lies upon him But, neither section 103 nor section 106 can absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when prosecution has led evidence which if believed will sustain conviction, or makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused." [Also see: Vikramjit Singh V/s State of Punjab [ 2007(1) SCC (Cri) 732] and P.Mani V/s State of Tamil Nadu ( AIR 2006 SC 1319 )]. ( 11. ) As discussed herein-above, the prosecution has failed to discharge its onus to establish that the dead child was found in the river was the same child to whom the appellant gave birth. ( 11. ) As discussed herein-above, the prosecution has failed to discharge its onus to establish that the dead child was found in the river was the same child to whom the appellant gave birth. Apart from this, there is also no evidence on record to show that the appellant was not having any male child in her lap or in her house or in her custody and on interrogation, she failed to give the whereabouts of the child. In absence of this evidence. In our considered view, there would be no application of section 106 of the Evidence Act to say that the fact was especially within the knowledge of the appellant and she failed to prove the said fact. Similarly, there would be no application of section 114(g) of the Evidence Act for raising presumption against the appellant. If the identity of the male child would have been established by the prosecution with the appellant and, thereafter, the appellant would have failed to give explanation about his death, only then an adverse inference could have been drawn against the appellant. [(See: Murlidhar and others V/s State of Rajasthan [ 2006(1) SCC (Cri) 86]. ( 12. ) In view of the aforementioned factual and legal discussion, in our opinion, the trial Court has committed error of law by holding in para 27 of the impugned judgment that the appellant did not adduce any evidence regarding newly bom male child and whether he was alive or dead because as discussed above, no evidence has been adduced by the prosecution to establish that a male child found dead in the river was the child to whom the appellant gave birth and no question to this effect that the child was not available on search being made with the appellant or her relatives and the appellant failed to give the whereabouts of the child was put to the appellant in her statement recorded under section 313 of the Code of Criminal Procedure, in order to explain this situation. Therefore, it could not be said that the appellant has failed to give explanation or furnish information as to where the child was and whether the male child was alive or dead. ( 13. Therefore, it could not be said that the appellant has failed to give explanation or furnish information as to where the child was and whether the male child was alive or dead. ( 13. ) In the wake of foregoing factual and legal analysis, we have absolutely no hesitation to hold that the prosecution has miserably failed to bring home the guilt of the appellant beyond reasonable doubt. Thus, this appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is on bail. Her bail and surety bonds stand discharged. Let a copy of this judgment be transmitted to the trial Court along with its record in due course. Appeal allowed.