Sudha vs State (Delhi Administration)
1988 Latest Caselaw 357 Del

JUDGMENT

Talwar, J.

(1) A normal male child was born to Sudba, the appellant herein, on 20th February, 1984 at about 10 p.m. That illegitimate baby was strangulated and the dead body was found in the possession of Sudha's mother Angoori Devi (who was a co-accused) at about 10.30 p.m. when, it is alleged she was seen attempting to dispose it of near a Ganda Nullah by one Daulat Ram(P.W.3). The appellant and her mother Angoori were tried for the offence of murder. Angoori Devi was further tried for an offence under Section 201 of the Indian Penal Code. The charges framed by the trial court are as follows: "THAT on 20/2/84 around 10 p.m. you in furtherance of common intention of you both, committed the murder of newly born male child of Sudha by strangulation, in your house in Gali No. 5, Vijay Mohalla, Maujpur, Delhi and thereby both of you committed an offence punishable under Section 302/34 Indian Penal Code, and within the cognizance of this court.

SECONDLY: that you Smt. Angoori Devi, on the above said date at about 10.30 p.m. after committing the above said murder of the newly born child of Sudha tried to cause the evidence of the said offence to disappear by trying to surreptitiously dispose of the dead body of the child by throwing it in the ganda nullah, Maujpur, and thereby committed an offence punishable under Section 201 Ipc and within the cognizance of this court."

(2) Neither the appellant nor her mother in their statements under Section 313 of the Code of Criminal Procedure contested the factum of the delivery of the child. The fact that the child died because of manual strangulation stands proved by the testimony of Dr. L.T. Ramani (P.W.4). Dr. Ramani conducted the post-mortem on 22nd February, 1984. In his opinion the injuries found were anti-mortem and were caused by manual strangulation and were sufficient to cause death in the ordinary course of nature. According to him, the death of the child was due to asphyxia resulting from manual strangulation. The doctor deposed that, "the infant was full term and live born".

(3) Although, opportunity was given. Dr. Ramani was not cross-examined. Thus, the finding of the trial court that the child died because of manual strangulation is to be upheld.

(4) The question which arises in this appeal which has been filed only by Sudha is whether Sudha's role in the commission of crime has been proved. We may note here that we have asked the Registry to find out whether Angoori Devi had filed a separate appeal. We are informed that she has not filed any appeal. We are refraining from assessing the role of Angoori Devi in this episode. However, we may note that her presence in the house where the birth took place stands proved.

(5) With the assistance of Mr. Lao, we have gone through the evidence. The prosecution has been able to prove that a normal child was born to Sudha on 20th February, 1984 at 10 p.m. and further that the child was strangulated on that very day. The dead body was found in the possession of Angoori Devi, the mother of the appellant herein. These findings of the trial court have to be upheld. However, there is no evidence on the record which connects Sudha with the commission of the offence. We may note that in the first information report Daulat Ram Chowkidar, who bad accosted Angoori Devi when she was just about to dispose of the body, had stated that she (Angoori Devi) had made an extra-judicial confession. It is in that confession that Sudha's role has been mentioned. However, in his testimony in court Daulat Ram (P.W.3) does not refer to that extra-judicial confession at all and, therefore, that statement recorded in the F.I.R. cannot be taken notice of for arriving at the decision that Sudha had any role to play in the murder of her own child. The circumstances brought on record do raise a suspicion against Sudha but that suspicion cannot be made the basis of conviction.

(6) After giving our careful consideration to the case, we are of the view that the conviction of Sudha for the offence punishable under section 302 of the Indian Penal Code read with Section 34 Indian Penal Code is unsustainable and is hereby set aside. We allow the present appeal and acquit her of the charges framed against her. We find that Sudha was granted bail by this court during the pendency of the appeal. The bail bond and the surety bond are hereby discharged.