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Madhya Pradesh High Court · body

2011 DIGILAW 901 (MP)

Dhuli Bai v. State of M. P.

2011-08-09

S.K.SETH

body2011
ORDER 1. Appellant is challenging her conviction under section 315 of the IPC ordered by IInd, Additional Sessions Judge, Shajapur in S.T.No. 160 of 1996 whereby she was sentenced to undergo three years’ RI and to pay fine of Rs. 200/- with defaults stipulation. 2. Facts leading to present appeal are as under. On 14.11.1995 Siddhnath Patidar, village Patel of Matana gave information on telephone to Police Station Moman-Barodiya that a newly born child was abandoned in the agriculture field of Durgashankar. 3. On the basis of said information FIR (Ex. P.6) was registered. Police came to the village and recovered the newly born child vide Ex. P.7. It was suspected that appellant conceived and delivered a child, therefore, she was arrested and subjected to medical examination, which was conducted by Dr. (Smt.) Uma Parmar (PW. 3). The doctor opined that appellant had delivered a child within 24 hours of the examination. The child was examined by Dr. A.K. Parmar (PW. 4), who found that newly born baby was hale and hearty female child born within 24 hours. The report of Dr. A.K. Parmar is Ex. P.3. 4. Takaing other usual steps in investigation, Police filed the charge-sheet against appellant to stand trial of the offence punishable under section 315 of the IPC. 5. At trial appellant denied the charges. Learned trial Judge considering prosecution evidence specially the medical evidence held that appellant delivered child and after delivery the child was abandoned to die. Learned trial Judge raised a presumption under section 114 of the Evidence Act and held the appellant guilty. 6. We have heard rival submissions at length. Perused the material available on record. 7. At the outset, we may mention that no one was examined as eye-witness either to the delivery of child or alleged act of abandonment attributed to appellant after birth of the child. The material prosecution witnesses either turned hostile or of no avail to prosecution as none had deposed in the Court that anybody saw appellant pregnant at any material time. 8. Perusal of section 315 reveals, that it must contain following essential ingredients :- i) That the act or omission of the accused must be such that there should be prevention for the child to be born alive; or ii) It must be caused to die after its birth. 9. 8. Perusal of section 315 reveals, that it must contain following essential ingredients :- i) That the act or omission of the accused must be such that there should be prevention for the child to be born alive; or ii) It must be caused to die after its birth. 9. Thus, it is clear that if child is allowed to born alive without any such act or omission and killed thereafter then obviously section 315 is not attracted. In order to bring home the charge under section 315 of the IPC, the prosecution must prove : a) that the woman concerned was pregnant; b) before the child being born the accused did some act with intent to prevent child from being born alive or to cause it to die after its birth; c) the child was born dead or die after birth; d) that such death was caused because of the aforesaid act done by the accused; e) that the act was not done in good faith for the purpose of saving the life of the mother. 10. None of the ingredients as pointed out herein above has been established by the prosecution. Merely the opinion of doctor (Ex. P.7) by itself is not sufficient to raise the presumption, that the child in question was delivered by appellant. Appellant has been involved in the so called offence merely on suspicion and it is well settled that the suspicion howsoever strong may be, cannot substitute the proof necessarily required to hold a person guilty for a criminal offence. 11. As pointed out hereinabove, there is no evidence on record that the appellant was with child and she actually delivered the baby in question. Even the village midwife-Janibai (PW. 7) does not say a word that she found appellant pregnant and assisted appellant in the delivery. 12. Considering the facts established on record, we find that the trial Court committed error in raising presumption to hold the appellant guilty of the offence punishable under section 315 of the IPC, in absence of any evidence to connect the newly born baby with appellant. Thus, we find that the conviction and sentence of appellant is wholly unsustainable in law. 13. As a result, the appeal is allowed, the conviction and sentence awarded to appellant is hereby set aside and she is acquitted of the charge levelled against her. 14. Appellant is on bail. Thus, we find that the conviction and sentence of appellant is wholly unsustainable in law. 13. As a result, the appeal is allowed, the conviction and sentence awarded to appellant is hereby set aside and she is acquitted of the charge levelled against her. 14. Appellant is on bail. Her bail bond stands discharged. Fine amount, if any, paid by her be refunded to her.