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2012 DIGILAW 298 (CHH)

PUNIA BAI v. STATE OF C. G.

2012-11-07

R.N.CHANDRAKAR, T.P.SHARMA

body2012
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. Challenge in this appeal, is to the judgment of conviction & order of sentence dated 14.03.1995 passed by IInd Additional Sessions Judge, Rajnandgaon, in Sessions Trial No.132/1994, whereby & whereunder learned Sessions Judge after holding the appellants guilty for causing homicidal death of newly born child of appellant No.1-Punia Bai and concealing the evidence of criminal case and in sharing common intention, convicted the appellants under Sections 302/34 & 201 of the IPC and sentenced them to undergo imprisonment for life and fine of Rs.1,000/-, R.I. for one year and fine of Rs.l,000/-, in default of payment of fine to further undergo R.I. for three-three months, respectively. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of prosecution, present appellant No.1-Punia Bai was having illicit relation with some other person, she delivered child on 27.12.1991. Both the appellants have caused homicidal death of newly born child on the ground that it was illegitimate child; thereafter they concealed the dead body inside the paddy of their house. PW/3 - Daulat Das, Kotwar, went to the police station and lodge dehati nalsi vide Ex.P/4 and Ex.P/7. FIR was lodged vide Ex.P/7. Investigating Officer left for scene of occurrence, after summing the witnesses vide Ex.P/1, dead body was taken out from the paddy by appellant Punia Bai and inquest over dead body of newly born child taken out from the paddy was prepared vide Ex.P/2. Bloodstained clothes of deceased were seized vide Ex.P/3. Spot map was prepared vide Ex.P/5. Dead body was sent for autopsy to Govt. Hospital, Rajnandgaon vide Ex.P/8 where PW/8-Dr. S. Rahaman conducted autopsy vide Ex.P/14 and found following injuries:- (i) Contusion over head of newly bond child, (ii) Abrasion and contusion over abdomen of 6 x 4 cm. (iii) Hydrostatic test was conducted and pieces of lungs were found floated. Injuries were ante-mortem and child died as a result of injuries. 4. Appellant No. 1 - Punia Bai was also examined by PW/6-Dr. Namita Reddy vide Ex.P/9-A and found that she has delivered child within 12-24 hours. Seized articles were sent for chemical examination vide Ex.P/10 and presence of blood over petticoat of appellant No.1 and paddy were confirmed vide Ex.P/11. 5. 4. Appellant No. 1 - Punia Bai was also examined by PW/6-Dr. Namita Reddy vide Ex.P/9-A and found that she has delivered child within 12-24 hours. Seized articles were sent for chemical examination vide Ex.P/10 and presence of blood over petticoat of appellant No.1 and paddy were confirmed vide Ex.P/11. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the 'Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Rajnandgaon, who in turn committed the case to the Court of Sessions, Rajnandgaon. Learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellants, prosecution has examined as many as 8 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and innocence and false implication is claimed. Appellant No.1 - Punia Bai has taken defence that her child died as a result of falling down and she has not committed homicidal death of her child. 7. After providing opportunity of hearing to the parties, learned IInd Additional Sessions Judge, convicted & sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Shri Sameer Singh, learned counsel for the appellants vehemently argued that evidence adduced on behalf of prosecution is not sufficient for drawing inference that appellants have committed homicidal death of newly born child and have also concealed the evidence of criminal case. He further argued that PW2-Dulari Bai was having inimical terms with appellants and has also deposed that while coming from the kitchen-garden appellant Punia Bai fell down along with her child, thereafter she took her child and went inside her house. He also argued that same defence was taken by the appellants that they have not killed their child and child died as a result of injuries when child along with appellant Punia Bai fell down in kitchen-garden. 10. On the other hand, Shri Vinay Harit, learned Dy. Advocate General for the State opposed the appeal and submits that as per medical evidence, appellant No.1 - Punia Bai has delivered child, child was alive, thereafter dead body of newly born child has been recovered from the paddy stock. 10. On the other hand, Shri Vinay Harit, learned Dy. Advocate General for the State opposed the appeal and submits that as per medical evidence, appellant No.1 - Punia Bai has delivered child, child was alive, thereafter dead body of newly born child has been recovered from the paddy stock. In case of normal death, there was no propriety for hiding dead body of child that too inside paddy stock instead of burning the dead body but appellants have not intimated any person relating to such incident and unnatural death of her child. Circumstances and evidence adduced against the appellants are sufficient for drawing inference that appellants have caused homicidal death of their newly born child on account of delivery of child as a result of illicit relation of Appellant No. 1 - Punia Bai with some persons. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12. In the present case, death of newly born child as a result of injuries has not been substantially disputed on behalf of appellants; even otherwise same is also established by the evidence of PW/8 - Dr. S. Rahaman and autopsy report Ex.P/14 that death of newly born child was as a result of ante-mortem injuries. Evidence of PW/6-Dr. Namita Reddy and medical report Ex.P/9-A are also sufficient to establish the fact that appellant No. 1 -Punia Bai has delivered the child on 27.12.1991. 13. As regard the complicity of the appellants in crime in question is concerned, as per evidence of PW/1 - Johan, appellant Punia Bai was pregnant, thereafter it was raised that she has delivered the child then Inderbai asked appellant Punia Bai about her delivery whom she denied and told that she has not delivered any child although he has noticed the symptoms of delivery, thereafter he went to police station along with PW/3 - Daulatdas, Kotwar, and lodged report of the incident. Police came and interrogated the appellant Punia Bai then she admitted her delivery. The dead body of newly born child was brought by co-appellant Chamarin Bai from the paddy stock. PW/3- Daulatdas has deposed that he has informed the police about the incident and police has recorded merg vide Ex.P/4, thereafter dead body was brought from paddy stock of co-appellant Chamarin Bai. 14. The dead body of newly born child was brought by co-appellant Chamarin Bai from the paddy stock. PW/3- Daulatdas has deposed that he has informed the police about the incident and police has recorded merg vide Ex.P/4, thereafter dead body was brought from paddy stock of co-appellant Chamarin Bai. 14. PW/4-Inder Bai has deposed that she was informed by PW/2-Dulari Bai that appellant Punia Bai has delivered the child and probably she has killed the child, thereafter she informed the Kotwar and Kotwar has lodged the report. As per evidence of PW/2 - Dulari Bili, appellant Punia Bai has delivered the child, she came out from her house with child and again she went back to her room. She has informed the incident to PW/3-Daulatdas, Kotwar. Evidence of these witnesses clearly reveals that appellant No.1 - Punia Bai was pregnant and has delivered the child. PW/3-Daulatdas, Kotwar, has lodged merg and dead body of newly born child has been produced from paddy stock by co-appellant Chamarin Bai. Appellant No.1-Punia Bai has taken the defence that child fell down and died as a result of injury but the fact remain that dead body has been brought by the co-appellant Chamarin Bai from paddy stock (Patao) where paddies were stocked. In case of death by accident of newly born child i.e. as a result of falling down on the floor, in ordinary course child would have been taken and buried with the help of villagers and other persons instead of hiding the child in paddy stock inside their house. These circumstances itself are sufficient that child has not died as a result of any falling or accident and the injuries found over the body of child were ante-mortem in nature. In absence of any true explanation on behalf of mother of appellant No.1-Punia Bai, only inference would be possible that appellant No.1-Punia Bai has delivered the child, she was the author of the offence and has committed homicidal death of her newly born child. Evidence of aforesaid witnesses further reveals that dead body was brought by co-appellant Chamarin Bai, mother of appellant No.1-Punia Bai. As per evidence of PW/1-Johan, co-appellant Chamarin Bai brought the child from the paddy stock (kothi), paddies were present over the body of deceased child and same were stained with human blood as per serological report Ex.P/12, which reveals that it has been hidden in paddy stock. As per evidence of PW/1-Johan, co-appellant Chamarin Bai brought the child from the paddy stock (kothi), paddies were present over the body of deceased child and same were stained with human blood as per serological report Ex.P/12, which reveals that it has been hidden in paddy stock. Evidence of aforesaid witnesses are sufficient for drawing inference that appellant Punia Bai has committed homicidal death of newly born child with intent to cause death of child and both the appellants have hidden the body of newly born child which was evidence of criminal case. 15. After appreciating the evidence available on record, learned IInd Additional Sessions Judge has convicted and sentenced the appellants under Sections 302/34 and 201 of the IPC. 16. Evidence adduced on behalf of prosecution is sufficient to prove the fact that appellant No.1-Punia Bai has committed homicidal death amounting to murder of her newly born child and has concealed the evidence of criminal case but evidence adduced on behalf of prosecution is not sufficient for drawing inference that co-appellant Chamarin Bai has committed homicidal death of newly born child, even in sharing common intention with present appellant No.1-Punia Bai but she has concealed the evidence of criminal case. Therefore, conviction of appellant No.2- Chamarin Bai under Sections 302/34 is not sustainable under the law. 17. Consequently, conviction and sentence of the appellant No.2 - Chamarin Bai under Sections 302/34 of the IPC are hereby set aside and she is acquitted of the said charge. Conviction of appellant No.1 - Punia Bai under Section 302/34 of the IPC is hereby modified and she is convicted under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs. 1,000/-. Conviction and sentence of appellant No.2-Chamarin Bai under Section 201 of the IPC is hereby maintained. 18. Appellant No.2 - Chamarin Bai initially was in custody since 04.01.1992 to 09.01.1992, thereafter she was in custody since 14.03.1995 till 23.11.1995. She is entitled for set off of the aforesaid period already undergone by her. Appellants are on bail. Their bail bonds shall stand discharged and they are directed to surrender before concerned Trial Court for serving remaining sentence. Trial Court shall take appropriate steps in time for their attendance for serving criminal sentence. Appeal Partly Allowed.