Premjit Deshmukh And Another vs State Of Chhattisgarh
2023 Latest Caselaw 679 Chatt

                                 1

                                                            NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                 Criminal Appeal No. 119 of 2012

              Judgment Reserved on : 12.01.2023

              Judgment Delivered on : 02.02.2023

1.   Premjit Deshmukh, aged about 29 years, Son of Puranlal
Deshmukh, R/o. Contractor Colony, Supela, P.S. Supela, District
Durg (C.G.)

2.   Smt. Sarita Dehmukh, aged about 31 years, wife of
Jageshwar Deshmukh, R/o. Kuthrel, P.S. Anda, District Durg (C.G.)

                                                     ---Appellants

                             Versus

State of Chhattisgarh, Through : The Police Station, Anda, District
Durg (C.G.)

                                                  ---- Respondent



For Appellants         : Mrs. Indira Tripathi, Advocate.
For Respondent         : Mr. Devesh Chand Verma, Govt. Adv.


             Hon'ble Shri Justice Goutam Bhaduri
            Hon'ble Shri Justice N.K. Chandravanshi

                        CAV JUDGMENT

Per N.K. Chandravanshi, J.

1. This criminal appeal filed by the appellants-accused under

Section 374 (2) of the Criminal Procedure Code, 1973 (henceforth

"Cr.P.C.") is directed against the impugned judgment of conviction

and order of sentence dated 12th December, 2011 passed by

Sessions Judge, Durg, District Durg in Sessions Trial No. 07/2010

[State of Chhattisgarh v. Premjeet Deshmukh & another], whereby

they have been convicted & sentenced as under :-

       Conviction                        Sentence

 Accused - Premjit Deshmukh      Life imprisonment with fine of
                                 Rs.500/-, in default of payment of

Under Section 302 of the Indian fine, to further undergo simple Penal Code. imprisonment for two months

Accused- Smt. Sarita Deshmukh

Under Section 302 read with Section 34 of the IPC

Both the Accused /appellants Rigorous imprisonment for five years with fine of Rs.500/-, in Under Section 201 of the Indian default of payment of fine, to Penal Code. further undergo simple imprisonment for two months.

Both the sentences have been directed to be run concurrently.

2. Case of the prosecution, in brief, is that on 06.09.2009 one

Nand Kumar Sahu (PW-9) seen dead body of female infant in the

bank of river (Shivnath) of his village Runda and lodged merg report

(Ex.P-26) at police station Anda. Inquest report (Ex.P-5) was

prepared by Head Constable - Rajendra Deshmukh (PW-8), wherein

it was found that it was dead body of female infant, aged about 4-5

days and it was in a condition of decomposing, maggots were also

found on the said dead body. The dead body was sent for autopsy,

where Dr. Raj Kumar Singh (PW-7) conducted postmortem on the

dead body vide Ex.P-21. Three sealed packets given by doctor were

seized vide seizure memo (Ex.P-20). One seized bone was sent for

chemical examination. Spot Map (Ex.P-22) was prepared. After

receiving the postmortem report, FIR (Ex.P-27) for the offence under

Section 302 of the IPC was registered against the unknown person

on 16.9.2009 on the basis of merg enquiry.

2.1. During investigation, it was revealed that in the intervening

night of 1 - 2 September, 2009, at 1.10 hours in night, wife of

appellant Premjit Deshmukh gave birth to their third live female child

in Government Hospital, Durg wherefrom his wife was discharged on

3.9.2009. Since appellant No. 1- Premjit Deshmukh was already

having two girl child, hence, due to birth of 3 rd girl child, he angered

and with the help of his maternal aunt [appellant No. 2 (ekeh)] made a

plan to finish the newly born child. On 3.9.2009, after getting

discharge of his wife, appellant Premjit Deshmukh took the newly

born baby from her mother - Smt Kirti Deshmukh and gave the

infant baby to appellant No. 2, thereafter, he dropped his wife in the

house of his maternal uncle at village Kuthrel and came back to Durg

and as per their plan, he alongwith appellant No. 2/accused took the

child in the motorcycle at the place of occurrence i.e. near river at

village Runda where Premjit Deshmukh in association with appellant

No. 2 - Smt. Sarita Deshmukh murdered her by throttling and threw

her dead body in the river. Memorandum statement of both the

accused persons were recorded vide Ex. P-8 & P-9, respectively and

arrested them. Motorcycle was seized vide Ex.P-10. Panchnama of

spot was prepared vide Ex.P-7. Statement of witnesses were

recorded. Wife of appellant No. 1, namely Smt. Kirti Deshmukh was

medically examined by Dr. Mamta Pandey (PW-11) on 22.09.2009

in which, vide Ex.P-15 she opined that Smt. Kirti Deshmukh gave

birth to live female infant, 2 - 3 weeks prior to her medical

examination.

2.2. After usual investigation, charge-sheet under Section 302

read with Section 34 of the IPC was filed against both the

accused/appellants in the court of Judicial Magistrate, First Class,

Durg, who in turn, committed the case to the Court of Sessions, who

conducted the trial and convicted and sentenced the

accused/appellants as mentioned in the opening paragraph of this

judgment.

2.3 . Charges under Section 120B, 302 and 201 of the IPC were

framed against appellant No.1/accused - Premjit Deshmukh

whereas charges under Sections 120 B, 302 read with Section 34

and 201 of the IPC were framed against appellant No. 2/accused-

Smt. Sarita Deshmukh, which were read over and explained to them,

they abjured their guilt and entered into defence by making plea that

they are innocent.

3. So as to hold the accused/appellants guilty, prosecution has

examined as many as twelve witnesses and exhibited 37 documents

in support of its case. Incriminating evidence brought by the

prosecution against the appellants were put to them, which they

denied and pleaded their innocence in their statements recorded

under Section 313 of the Cr.P.C. Apart from this, one witness namely

Bhaskar Mudaliyar @ Bachu (DW-1) has also been examined by the

defence in support of its case.

4. Learned trial Court, after appreciating the oral and

documentary evidence available on record, convicted and sentenced

the accused/appellants as mentioned in opening paragraph of the

judgment. Against which, this appeal has been preferred by them

questioning the impugned judgment of conviction and order of

sentence.

5. Learned counsel for the appellants would submit that learned

trial Court is absolutely unjustified in convicting the

accused/appellants, as the prosecution has utterly failed to prove the

offence beyond reasonable doubt. It is further submitted that

although wife of appellant No. 1 namely Smt. Kirti Deshmukh had

given birth to one live female infant in the intervening night of 1 / 2,

September, 2009 at District Hospital, Durg, wherefrom she was

discharged on next day i.e. on 3.9.2009, thereafter, she had gone to

her house alongwith her infant baby, but on the next day i.e. on

4.9.2009 due to jaundice her infant baby died, who have been

cremated in the graveyard, despite that learned trial Court merely on

the basis of DNA test report (Ex.P-29), has held that alleged

deceased infant was the baby whom she [Smt. Kirti Deshmukh

(PW-1)] gave birth and has convicted the accused/appellants on the

basis of inferences and conjectures based on the facts available on

record, taking high imaginations about those facts. All the findings

recorded against the appellants are only imaginary and suspicious,

which cannot be a ground of conviction in a criminal trial.

5.1. Learned counsel for the appellants would further submit that

learned trial Court has heavily relied on DNA test report (Ex.P-29)

but collection of blood samples of appellant No. 1- Premjit

Deshmukh and his wife Smt. Kirti Deshmukh and sending them to

Centre for DNA Fingerprinting and Diagnostics (CDFD) has not been

proved by adducing any oral and documentary evidence. Witness

examined in this regard i.e. Vinod Kumar Singh (PW-12) has not

proved any document in support of his statement, therefore, only on

the basis of his baseless statement, aforesaid facts cannot be held

proved. It is further submitted that case of the prosecution is wholly

based on circumstantial evidence, but circumstances relied upon by

the trial Court are wholly imaginary and suspicious. He would further

submit that it is duty of the prosecution to prove its case beyond

reasonable doubt, non-proving of any fact in defence by the accused

cannot be taken into consideration to convict them. She placed

reliance upon the judgment of the Supreme Court in the matter of

Sharad Birdhichand Sarda v. State of Maharashtra 1, Anand

Ramachandra Chougule v. Sidarai Laxman Chougala & others 2

1 (1984) 4 SCC 116 2 (2019) 8 SCC 50

and Malaichamy and another v. State of Tamil Nadu 3 in support

of her submissions.

6. Per contra, learned counsel for the State would submit that

although case of the prosecution is based on circumstantial

evidence, but all the chain of circumstances has been proved by the

prosecution and discussed by learned trial Court while passing

impugned judgment of conviction and order of sentence. Thus,

impugned judgment passed by the learned Court is well merited,

which does not call for any interference by this Court.

7. We have heard learned counsel for the parties and perused

the impugned judgment including record of the trial Court with utmost

circumspection.

8. Nand Kumar Sahu (PW-9), the then Sarpanch of village

Runda, has stated in his deposition that on 6.9.2009 at about 8 AM

in the morning when he was going to river to take bath, then he had

seen the dead body of infant and lodged merg report

(Ex.P-26), which is well supported by Head Constable - Rajendra

Deshmukh (PW-8), who lodged merg report and conducted &

prepared inquest report (Ex.P-5) of deceased infant. This fact has

also been supported by village Kotwar - Mansharam (PW-2), who is

the witness of inquest report. Rajendra Deshmukh (PW-8) has also

proved FIR (Ex.P-27), which was registered by Assistant Sub

Inspector Late Shri C.L. Nirmalkar, who could not have been

3 (2019) 17 SCC 568

examined due to his death.

9. Rajendra Deshmukh (PW-08), Head Constable, has stated

that since dead body was in the state of decomposition, hence, on

being sent the same to District Hospital, Durg, it was referred to

Medical College, Raipur.

10. Dr. Rajkumar Singh (PW-7) conducted postmortem on the

dead body of infant, in which he opined that, all muscles & soft

tissues and organs were softened flabby due to decomposition and

showing grayish blackish discoluration. He further opined that it was

dead body of newly born female infant, who born live, after full term,

sign of surgical intervention was found present, duration of death is

within 2 days to 4 days prior to postmortem examination, he

preserved two bones for diatoms test and DNA profiling, which were

handed over to the police. In the postmortem report, he has not

given his opinion in respect of cause of death and nature of death of

deceased infant. He has stated in his deposition that since dead

body was in the state of decomposition, hence, cause of death could

not be ascertained. Thus, from the aforesaid evidences, it is proved

that on 6.9.2009, dead body of newly borne female infant was found

at village Runda in the bank of river (Shivnath) in a decomposing

condition and due to which, cause of death and nature of death of

the deceased could not have been ascertained in the medical

examination. Dr. Rajkumar Singh (PW-7) had suggested for diatoms

test of bone of deceased infant but report of such diatoms test has

not been filed and proved by the prosecution.

11. In the impugned judgment, learned trial Court, on the basis of

circumstances, has assumed that either infant child was murdered

prior to throwing it in the river or she died after throwing it in the river.

Under this assumption, learned trial Court has held that nature of

death of deceased infant was homicidal. Thus, it is evident from the

record and impugned judgment that homicidal death of infant child

has not been proved by the prosecution and the same has been

inferred by the learned trial Court whereas in a criminal case, for

conviction of appellants/accused under Section 302 of the IPC, it is

incumbent upon the prosecution to prove that nature of death is

homicidal. In the instant case, prosecution has utterly failed to prove

such fact in respect of death of deceased infant.

12. As per the facts of the case and evidence available on record,

Smt. Kirti Deshmukh (PW-1) was admitted in the Govt. Hospital,

Durg for delivery where she gave birth to live female child in the

intervening night of 1st -2nd, September, 2009 and she was

discharged from the Hospital on 3.9.2009. These facts have also

been admitted by the appellants in their statements recorded under

Section 313 of the Cr.P.C., which also gets corroboration from the

admission ticket (Ex.P-31) of Smt. Kirit Deshmukh, of Govt. District

Hospital, Durg, which has been proved by Dr. Mamta Pandey

(PW-11).

13. In the instant case, prosecution has filed DNA test report

(Ex.P-29), which purports that, the DNA test performed on the

exhibits provided is sufficient to conclude that the source of exhibit A

(bone) is from the biological daughter of the sources of exhibit B

(Mrs. Kirti Deshmukh) and exhibit C (Mr. Premjit Deshmukh). Thus,

deceased infant was the child, whom Smt. Kirti Deshmukh (PW-1)

gave birth on 1st / 2nd - 9 - 2009 and, therefore, learned trial Court

has held that Smt. Kirti Deshmukh and appellant No. 1 is mother &

father of deceased infant.

14. As per the case of prosecution, blood samples of appellant

No. 1- Premjit Deshmukh and Smt. Kirti Deshmukh (PW-1) was

taken for DNA test to match DNA profiling with bone of deceased

infant, but collection / procedure of collection of their blood sample

has not been proved by the prosecution. To prove such fact,

prosecution has examined Sub Inspector - Mr. Vinod Kumar Singh

(PW-12), who has stated in his deposition that pursuant to the order

of the High Court, blood sample of Premjit Deshmukh and his wife

Kirti Deshmukh were taken on 27.05.2011 in the Govt. District

Hospital, Durg for DNA profiling with deceased infant. As per his

statement, he knows both the aforesaid persons and he was present

while collecting their blood samples, but he has not proved any

document to establish the fact that he had taken both the persons to

District Hospital, Durg or he was present while collecting their blood

sample. Identification form of Premjit Deshmukh and Smt. Kirti

Deshmukh have been filed but the same has not been proved by the

prosecution. As per identification form enclosed with the record,

Bhaskar & Poshan Lal have been shown as witnesses of collecting

blood sample of aforesaid two persons, Pathologist has attested the

documents and Lal Brijendra Kumar Shrivastava, D.S.P.,

Headquarter, State Police Service has also verified / attested the

identification forms of both the persons, but none of the aforesaid

witnesses have been examined by the prosecution.

15. Vinod Kumar Singh (PW-12) has stated that blood samples of

Premjit Deshmukh and his wife Kirti Deshmukh (PW-1) were

collected on 27.05.2011, but as per identification form of both of

them, their blood samples were collected on 26.5.2011. Both these

identification form do not contain signature of Vinod Kumar Singh

(PW-12). He has also not proved any document to show that he had

brought them for collection of blood samples in District Hospital,

Durg. Hence, considering the aforesaid facts and particularly

material contradiction about the date of collection of blood sample in

his statement and both the identification forms, only on the basis of

his oral statement, collection of blood sample of appellant No. 1 -

Premjit Deshmukh and his wife Kirti Deshmukh cannot be held to be

proved. Although, his statement has not been rebutted in cross-

examination but only because of that, his such vague and baseless

statement cannot be believed.

16. Prosecution has also failed to prove the fact that when and by

which mode, the alleged bone of deceased infant and blood samples

were sent for DNA test and where the same were sent. Any

letter/Memo/Receipt, etc. in this regard have not been filed & proved

by the prosecution.

17. In the case of Manoj & others v. State of Madhya

Pradesh 4, Hon'ble Supreme Court has refereed an article in respect

of DNA profiling, published by the Central Forensic Science

Laboratory, Kolkata. The relevant extracts of the aforesaid Article

are reproduced below :-

"138. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata was relied upon. The relevant extracts of the article are reproduced below:

"Deoxyribonucleic acid (DNA} is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins. Twenty- three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All Information about Internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases:

Adenine (A), Guanine (G}, Thymine (T} and Cytosine (C) along with sugar- phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to Individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA} found in large number of copies in the mitochondria is circular, double stranded, 16,569 base 4 2022 SCC OnLine SC 677

pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases} differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control sample.

DNA Profiling Methodology

DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomized" male. Cases in which DNA had undergone 40 DNA profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007). environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.

DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include:

1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping

4. statistical analysis & interpretation.

In mtDNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:....

Statistical Analysis

Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:

1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.

2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.

3) Inconclusive: The data does not support a conclusion Of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.

In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while reporting a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match.

Collection and Preservation of Evidence

If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling."

18. Although now-a-days accuracy of DNA evidence is increasing with

the advancement of science and technology with every passing day,

thereby making it more & more reliable, despite that we have not yet

reached a juncture where it may be said to be infallible, as has been

observed by Hon'ble Supreme Court in the matter of Pattu Rajan v.

State of Tamilnadu 5 as under :-

"52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making is more and more reliable, we have not yet reached a juncture where it may be said to be infallible.................. "

19. In the instant case, conviction of the appellants is based on

DNA test report (Ex.P-29), hence, it was the duty of the prosecution to

prove all the facts, right from the collection of blood sample of

appellant No. 1- Premjit Deshmukh and his wife Smt. Kirti Deshmukh

(PW-1) till depositing the same alongwith alleged bone of the

deceased infant, in CDFD (Centre for DNA Fingerprinting and

Diagnostics), Hyderabad, which the prosecution has utterly failed to

prove.

5 (2019) 4 SCC 771

20. As has been discussed above, homicidal death of deceased

child has also not been proved by the prosecution, despite that

learned trial Court has drawn adverse inferences against the

appellants on the basis of facts of the case to hold them guilty.

21. Hon'ble Supreme Court in the case of Anand Ramachandra

Chougule v. Sidarai Laxman Chougala & others (supra) and

various other judgments has held that it is the duty of the prosecution

to prove its case beyond reasonable doubt, in this way it cannot take

advantage of weakness of accused/appellants. Relevant paragraphs

of the judgment read thus:-

"10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.

11. The fact that a defence may not have been taken by an accused under Section 313, Cr.P.C. again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the

prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand , (2013) 4 SCC 422, this Court observed:

"28...When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt."

22. In paragraph 18 of the impugned judgment, learned trial Court

while mentioning various reasons has refused to accept statement

of Smt. Kirti Deshmukh (PW-1) that the female infant whom she

gave birth was died on 4.9.2009 and it was cremated in Ramnagar

Graveyard. In this regard, learned trial Court has relied on judgment

of the Supreme Court in the case of Bhagwan Das v. State (NCT),

Delhi reported in [ 2011 A.IR. SCW 2867], but in that case mother of

accused Smt. Dhillo Devi had stated to the police that the accused,

who was her son, had made extra judicial confession with regard to

commission of crime to which she turned hostile in her court

statement, but in the instant case Smt. Kirti Deshmukh (PW-1) has

not stated in her police statement (Ex.P-1) that her husband had

made any extra judicial confession to her that he has killed their

infant baby (deceased). Moreover, that was a case of honour killing

but instant case is not a case of honour killing, as wife of deceased

(PW-1) has conceded in her deposition that appellant is very much

affectionate to their both the daughters namely Chanchal & Komal

and he always make efforts to get them happy. This fact has also

been supported by defence witness Bhaskar Mudaliyar @ Bachhu.

Hence, reliance placed by learned trial Court in aforesaid case is not

found to be appropriate in the instant case.

23. The facts, on the basis of which, learned trial Court has drawn

adverse inference against the appellants are not seems to be of

substantive nature, which could connect appellants with the crime in

question, i.e. they were seen carrying infant baby born by Smt. Kirti

Deshmukh towards river or they were seen throwing the infant baby

in the river, etc. rather those facts are ancillary in nature, which

of-course creates some doubt against the appellant No. 1 - Premjit

Deshumkh, but it is settled proposition of law that suspicion, no

matter how strong, cannot take the place of proof.

24. Appellant - Premjit Deshmukh, who is said to be a Truck

Driver has taken a plea, that in between 28.8.2009 to 9.9.2009 he

went to Kolkata with a Truck. Defence witness Bhaskar Mudiliyar @

Bachhu, whose truck he had taken, while supporting his statement

has deposed that appellant No. 1 had gone in first week of

September, 2009 and returned after about a week. He has further

stated that, at that time, on being informed by father of appellant No.

1 that the girl child delivered by wife of appellant No. 1 has died,

therefore, he had given Rs.1,000/- to him for cremation of the child.

Defence taken by appellant No. 1 may be wrong but, prosecution

has also not proved any strong circumstances / chain of

circumstances to prove the guilt of appellants, rather both the

appellants have been convicted drawing adverse inference against

them only on the basis of imaginary and highly suspicious grounds,

which is against the established principle of criminal jurisprudence.

25. In view of foregoing discussion, we do not find any good /

appropriate grounds to uphold the impugned judgment, hence,

impugned judgment of conviction and order of sentence passed by

the learned Sessions Judge, against the appellants deserves to be

set aside.

26. Accordingly, appeal is allowed. Impugned judgment of

conviction and order of sentence is set aside. Appellants are

acquitted of all the charges levelled against them.

27. Appellants are reported to be on bail. Their bail bond shall

continue for a further period of six months from today in view of the

provisions contained in Section 437-A of the Cr.P.C.

             Sd/-                                             Sd/-

         (Goutam Bhaduri)                            ( N.K. Chandravanshi)
            Judge                                           Judge

Amit