Kumari Indu Verma vs State Of Chhattisgarh
2023 Latest Caselaw 933 Chatt

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                                                                  NAFR
          HIGH COURT OF CHHATTISGARH AT BILASPUR
                CRIMINAL APPEAL NO. 1149 OF 2002
    Kumari Indu Verma, aged about 19 years, D/o Ram Ratan
Verma, R/o Village Pundardih, Police Station Suhela, District Raipur,
Chhattisgarh.                                         ... Petitioner
                             versus
    State of Chhattisgarh, through: District Magistrate, Raipur,
Chhattisgarh.                                    ... Respondent


   For Appellant            :   Mr. Aman Kesharwani, Adv.
   For Respondent           :   Mr. Ajay Kumrani, P.L.
_______________________________________________________
                  Hon'ble Shri Justice P. Sam Koshy
                         Judgment on Board
                            [14/02/2023]

1.    The present is an Appeal filed by the Appellant assailing the

Judgment dated 30.10.2002 passed in Sessions Trial No.49/2022 by

the First Additional Sessions Judge, Balodabazar, District Raipur (as

it then was).

2.    Vide the impugned Judgment, the Appellant stands convicted

for the offence punishable under Section 315 of IPC and has been

sentenced to undergo Rigorous Imprisonment for 3 years.

3.    Facts

of the case in brief are that the Appellant at the time of

incident is said to have aged around 18-19 years. She was an

unmarried girl. It is a case of the Prosecution that on account of the

physical relationship that she had with one Lekhram, she got

conceived. It is said that she had suppressed her pregnancy from the

world and after the child was born she threw the child into the village

pond i.e. Bartalab pond in Village Pundardih under Police Station

Suhela, District Raipur (as it then was and presently under District

Balodabazar-Bhatapara). The dead body of the infant child was

recovered on 4.11.2001 by some villagers who had gone to the said

pond for taking bath.

4. The matter was thereafter reported to the Police Station Suhela.

Merg was registered on 4.11.2001. Subsequently, in the course of

investigation it was revealed that one of the villagers had seen the

Appellant at the village pond while he was taking bath and her

appearance looked as if she was in the advance stage of pregnancy.

Suspecting that it was the Appellant's child, the villagers gathered in

the house of the Appellant and where it is said that the Appellant

made a confession of her having delivered a child on 2.11.2001 in the

evening at her residence and subsequently she threw the child into

the village pond. She also confessed of the child having born from the

relationship that she had with one Lekhram from the same village.

5. After conclusion of the investigation, charge-sheet was filed

and the matter was put to trial before the First Additional Sessions

Judge, Balodabazar where the case was registered as Sessions Trial

No.49/2002. The Prosecution in all examined 11 witnesses in support

of their case. In turn, the Appellant in defence has examined 3

witnesses.

6. After conclusion of the evidence and recording of the statement

under Section 313 of CrPC, the learned Trial Court vide the impugned

Judgement found the Appellant guilty of committing an offence under

Section 315 of IPC and accordingly convicted her for the said offence

and imposed a sentence upon the Appellant to undergo Rigorous

Imprisonment for 3 years. It is this Judgment of conviction and

sentence which is under challenge in the present Appeal.

7. Learned Counsel for Appellant submits that there is no evidence

that has been collected or produced by the Prosecution to establish

that the dead body that was recovered from the village pond was in

fact the child of the Appellant. He further submits that no medical

examination to establish the mother-child relationship between the

Appellant and the dead body recovered was adduced before the Trial

Court and therefore the entire finding is a perverse finding and the

same deserves to be quashed.

8. Learned Counsel for Appellant further submits that from the

evidence adduced before the Trial Court it cannot be conclusively

held that it was the Appellant who had delivered the child which was

recovered from the pond. There is no proof of the Appellant having

undergone delivery and there is also no proof of the Appellant

throwing/disposing of the body in the pond. In the absence of which,

the conviction of the Appellant under Section 315 of IPC is

unsustainable and the Appeal therefore deserves to be set aside/

quashed.

9. Learned State Counsel on the other hand submits that it is a

case where there are sufficient material collected and produced

before the Trial Court by the Prosecution so far as establishing the

offence under Section 315 of IPC is concerned. Contention of learned

State Counsel is that the Doctor (PW-7, Dr. R.N. Joshi) who had

conducted the post-mortem of the dead body has clearly opined that

the child was born alive and had subsequently died.

10. It was also the contention of learned Counsel for Appellant that

PW-5 Dr. Jagriti Agrawal and PW-10 Dr. Jaya Phuljhele both have

given a categorical finding that upon medical examination, the

Appellant was found to have recently undergone delivery and that the

Appellant had all the symptoms of a recently undergone delivery.

11. In addition, learned State Counsel has strongly harped upon the

extra judicial confession that the Appellant is said to have made

before the villagers who had all gathered in her house immediately

after the recovery of the dead child from the pond. Thus, according to

learned State Counsel, there was ample material that was placed

before the Trial Court for reaching to the conclusion that the offence

under Section 315 of IPC charged against the Appellant stood proved

beyond all reasonable doubts and hence the Appeal should be

rejected.

12. Learned Counsel for Appellant at this juncture submits that it is

a case where the Appellant has already undergone custody of more

than a month i.e. roughly around 34 days. If, for any reason, this

Court finds that the conviction of the Appellant is justified then at-least

the sentence period may be reduced to the period already undergone

by the Appellant in custody, considering the fact that the Appellant at

the relevant point of time was an unmarried girl of around 18-19 years

of age. It is more than 22 years now and at this juncture no fruitful

purpose would be served in sending the Appellant back to jail for any

period so determined by this Court or for the period as has been

imposed by the Trial Court itself.

13. Having heard the contentions put forth on either side and on

perusal of record, what is necessary to be taken into account at this

juncture is the deposition of PW-1 Kejnath and PW-4 Mohanlal both

of whom were the villagers who had assembled at the place from

where the dead body of the child was recovered first, i.e., the village

pond Bartalab. They had subsequently also assembled at the house

of the Appellant under suspicion of her having disposed of the new

born child. The said two witnesses have supported the case of the

Prosecution to the extent of admitting the fact that before them the

Appellant had made a categorical extra judicial confession of her

having delivered a child on 2.11.2001 and subsequently she had

wrapped the child in salwar and thrown into the pond.

14. PW-5 Dr. Jagriti Agrawal and PW-10 Dr. Jaya Phuljhele, both

are the lady Doctors who had medically examined the Appellant. They

have given a categorical finding that on examination there were

ample materials available to establish that the Appellant had recently

undergone delivery and that all the symptoms reflected in her of a

mother given birth recently.

15. PW-7 Dr. R.N. Joshi, is the Doctor who had conducted the post-

mortem of the dead child recovered from the pond. He gave a

categorical finding that from the post-mortem it is evidently clear that

the child was born alive and had died subsequently and it was not a

case where the child was born dead.

16. Perusal of the records, particularly the evidence which have

come on record on behalf of the defence and also taking note of the

statement recorded under Section 313 of CrPC that of the Appellant,

would clearly reflect that the defence as also the Appellant has failed

to give cogent, plausible explanation of the symptoms that were

visualized by PW-5 and PW-10 and also that by the villager of the

Appellant being pregnant and having recently undergone delivery.

17. There was no explanation and justification provided by the

Appellant as regards the whereabouts of the child that was born to

the Appellant whether it was stillborn child or the child was born alive.

If it was a stillborn child what she had done to the stillborn child and if

the child was born alive the whereabouts of the child. In the absence

of any proper explanation so provided by the Appellant, it has to be

accepted that she had undergone delivery and that it was she alone

who had thrown the child in the village pond, as is the case of the

Prosecution which stands further substantiated from the extra judicial

confession made by the Appellant before the villagers and which

stands also corroborated by the evidence of PW-1 and PW-4.

18. Given the said facts, this Court is of the opinion that the finding

of the learned Trial Court to the extent of holding the charges levelled

against the Appellant stands proved beyond all reasonable doubts

and the same does not warrant any interference.

19. However, at this juncture, this Court would like to appreciate on

the quantum of sentence that has been awarded by the Trial Court. It

may not be forgotten that the present Appeal is of the year 2002 and

at present it is more than 21 years old. The Appellant was on bail all

along during the trial and subsequently she had remained in custody

after conclusion of the trial for a period of around one month. In all,

the Appellant has remained in custody for a period of 34 days. The

Appellant in the course of pendency of appeal during these 21 years

of period must have definitely undergone much mental agony and

trauma of a convict, a person whose appeal is pending before the

Court. Another fact which also cannot be lost sight of is that at the

time of the incident, the Appellant was an unmarried girl. She was in

pretty young age of around 18-19 years. Now, by efflux of these 21

years of time gap, the Appellant in between must have well passed

the middle age of her life. Moreover, by efflux of time, the Appellant

must have also got married and must have settled around

somewhere in life. Sending the Appellant back to jail at this juncture

would have far more serious repercussions to her and to her family if

she is already married.

20. Taking these factual aspects into consideration, this Court is of

the opinion that no fruitful purpose would be served in now sending

the Appellant to jail to undergo the further sentence that has been

awarded by the Trial Court. Thus, it would be in the larger interest of

justice if the sentence part is reduced to the period already

undergone by the Appellant, affirming her conviction under Section

315 of IPC.

21. Accordingly, the conviction of the Appellant under Section 315

of IPC is sustained. However, the sentence awarded to the Appellant

stands reduced to the period already undergone by her in custody.

22. The Appellant is said to be on bail. Her bail-bonds shall remain

in operation for a period of six months from today in view of the

provisions contained in Section 437-A of CrPC.

23. With the aforesaid modification in sentence, the Appeal stands

partly allowed.

Sd/-

(P. Sam Koshy) JUDGE sharad