Ku Sheela Namdeo Rathod vs State Of Mah.Thr.Pso Yavatmal
2017 Latest Caselaw 2681 Bom

222-Cri.Apeal-147-04                                                                              1/5


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.

                         CRIMINAL APPEAL NO.147 OF 2004


Sheela d/o Namdeo Rathod 
aged about 19 years, 
R/o Wadsad, Tq. Pusad, 
District-Yavatmal                                                    ... Appellant.

-vs- 

State of Maharashtra, 
Through PSO Pusad, 
Dist. Yavatmal                                                       ... Respondent 


Shri S. D. Dharaskar, Advocate h/f Shri J. Y. Ghurde, Advocate for the 
appellant. 
Shri A. V. Palshikar, Addl. Public Prosecutor for respondent/State. 

                                                  CORAM  : Z. A. HAQ, J. 

DATE : May 31, 2017

Oral Judgment :

Heard Shri S. D. Dharaskar, learned advocate for the appellant

and Shri A. V. Palshikar, learned Addl. Public Prosecutor for the

respondent/State.

02. The appellant has challenged the judgment passed by the Sessions

Court convicting her for the offence punishable under Section 318 of the

Indian Penal Code and sentencing her to undergo Rigorous Imprisonment for

three months and to pay fine of Rs.500/- and in default of payment of fine,

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to undergo Rigorous Imprisonment for one month.

03. According to the prosecution, the appellant/accused became

pregnant without marriage and when the pregnancy advanced, she stopped

going out of her house. On 11/08/2001 at about 10 am, the Police Patil was

informed that a dead body of newly born child was found near the well in

Tanda, Shantabai (PW-2) had also seen the body and she claimed that

earlier she was asked by Shevantabai, the mother of appellant-accused

(Accused No.2) to assist for the delivery of child of the appellant-accused.

According to Shantabai, when she inquired from Shevantabai about the

child, Shevantabai told Shantabai that the appellant-accused had delivered a

child in the night of 11/08/2001. Kisan Kale, Police Patil gave information

to the police on which the FIR was registered, investigation was conducted

and after completing the formalities, charge-sheet was filed before the

Judicial Magistrate, 1st Class for the offence punishable under Section 302

and Section 318 read with Section 34 of the Indian Penal Code. As the

offence punishable under Section 302 is triable by the Court of Sessions, the

case was committed to the Sessions Court.

The Sessions Court framed charges, explained the charges to the

accused and as the accused did not accept the guilt, conducted the trial.

After conclusion of the trial, the learned Sessions Judge recorded that the

prosecution has failed to prove that the accused caused the death of the child

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in furtherance of their common intention and with full knowledge and

acquitted the accused of the offence under Section 302 of the Indian Penal

Code. The learned Sessions Judge recorded that the prosecution has proved

that the appellant-accused delivered a child and secretly disposed of dead

body of the child with intention to conceal its birth. With these findings the

learned Sessions Judge convicted the appellant-accused for the offence

punishable under Section 318 of the Indian Penal Code. The learned

Sessions Judge recorded that the prosecution has failed to prove the charge

of commission of offence punishable under Section 318 of the Indian Penal

Code against Shevantabai-accused No.2 and acquitted her.

04. The learned Additional Public Prosecutor has referred to the

evidence of Dr Chanchal Bharkhada (PW-3) and argued that the prosecution

has established that the accused-appellant delivered a baby about five days

prior to the reporting of the incident and as the dead body of newly born

child was found, the conclusions of the learned Sessions Judge that the

appellant-accused has committed the offence cannot be faulted with. It is

submitted that the learned Sessions Judge has exhaustively considered the

evidence on record and has rightly convicted the appellant-accused for the

offence punishable under Section 318 of the Indian Penal Code.

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05. After examining the record and going through the impugned

judgment, I find that the conclusions of the learned Sessions Judge holding

the appellant-accused guilty of the offence punishable under Section 318 of

the Indian Penal Code, are unsustainable.

06. The appellant-accused is acquitted of the charge punishable under

Section 302 of the Indian Code on the ground that the evidence about the

birth of child to the appellant-accused on 11/08/2001 is not reasonably

certain. (See paragraph 17 of the impugned judgment). The learned

Sessions Judge has further recorded that the prosecution has failed to prove

that the child whose dead body was found was of the appellant-accused.

The learned Sessions Judge having acquitted the appellant-accused of the

charge punishable under Section 302 of the Indian Penal Code, after

recording the above finding, the appellant-accused could not have been

convicted for the offence punishable under Section 318 of the Indian Penal

Code as she is prosecuted for the offence because of the discovery of the dead

body of the child which is not proved to be of the appellant-accused. The

judgment passed by the learned Sessions Judge acquitting the appellant-

accused of the offence punishable under Section 302 of the Indian Penal

Code is not challenged by the respondent-State of Maharashtra. The

conclusions of the learned Sessions Judge for convicting the appellant-

accused for the offence punishable under Section 318 of the Indian Penal

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Code are contrary to the findings recorded by him for acquitting the

appellant-accused of the offence punishable under Section 302 of the Indian

Penal Code. Therefore in my view, the conviction of the appellant-accused

for the offence punishable under Section 318 of the Indian Penal Code is

unsustainable.

Hence, the following order is passed :

(i) The impugned judgment and order passed by the learned Sessions

Judge, Pusad on 10/02/2004 in Sessions Trial No.100/2001 is set

aside.

(ii) The appellant-accused is acquitted of the offence punishable

under Section 318 of the Indian Penal Code.

(iii) The bail bond executed/furnished by her stand cancelled.

(iv) The amount of fine, if any, deposited by the appellant-accused be

refunded to her.

(v)              The appeal is allowed in the above terms.     



                                                                            JUDGE




Asmita