Chabadi @ Pakalo vs State of Chhattisgarh

L.C. Bhadoo, J.

Being aggrieved by the Judgemnt dated 20th February, 1992 passed by the First Additional Sessions Judge, Raigarh in Sessions Trial No. 75/91 convicting the accused/Appellant for commission of the offence punishable u/s 302 and 201 of the Indian Penal Code and sentencing her to undergo imprisonment for life and two years rigorous imprisonment, respectively, with direction that both the sentences would run concurrently, the Appellant Chabadi Bai has filed this appeal.

The relevant facts for the disposal of this criminal appeal are that one Patiram lodged a report to the police station-Lailunga on 22nd February, 1991 at 9 a.m. with the allegation that today when he was at his house one Harihar come and told that eight days back on Thursday his daughter Chabadi delivered a child and thereafter she threw the child in the pond. When he enquired from Harihar then he told that while fishermen Dayal and Dashroo were fishing, the body of the child entangled in the net and on enquiry from his daughter Chabadi she disclosed that on Thursday she delivered a child near the pond and after delivery she threw the child in the pond. On receiving this information he along with villagers went to Narayan''s pond and saw that the body of the child was floating over the water. Thereafter he went along with Harihar and Chabadi to report the matter. On receiving this information the Officer Incharge registered Ex. P/4 death information No. 3/91 u/s 174 of the Cr. P.C. and thereafter issued notice Ex. P/5 to the panchas for preparing panchanma. After reaching the spot the Panchnama Ex. P/6 was prepared in presence of the panchas. Through Ex. P/7 he seized blood stained patched quilt (Gudri) at the instance of Chabdi Bai and through Ex. P/8 seized the Lahnga of Chabdi Bai at her instance. Body of the child was sent for post mortem examination through Ex. P/1 and the doctor S.N. Upadhyaya after conducting the postmortem on the body of the child prepared the postmortem report Ex. P/19. He recorded the statements of the witnesses and registered Ex.P/16 and same was sent for registration of the case. Investigating Officer submitted a letter Ex. P/ 17 to the Incharge Medical Health Center Lailunga for medical examination of Chabadi Bai. Through Ex. P/18 the Gudri and Lahnga were sent for chemical examination to the forensic science laboratory, Sagar and vide Ex. P/19 the report was received. A case u/s 302 and 201 of the Indian Penal Code was registered and charge sheet was filed against Chabadi Bai u/s 302 and 201 and against Harihar u/s 201 of the I.P.C.

Learned Additional Sessions Judge framed the charges for the above said offences against the accused persons. In order to prove the charge against the accused persons the prosecution in all examined 11 witnesses. Thereafter the statements of the accused persons were recorded in which they simply denied the evidence adduced by the prosecution to prove the charges.

After hearing the arguments of learned public prosecutor and the counsel for the accused persons, learned Additional Sessions Judge convicted and sentenced the accused Chabadi Bai as mentioned above whereas he acquitted the accused Harihar of the charge u/s 201 of the I.P.C.

We have heard learned Counsel for the Appellant and learned Deputy Govt. Advocate for the State.

It is admitted that that there is no direct evidence against the accused that any witness saw the Appellant delivering a live child and thereafter killing and throwing the child into the pond. The prosecution has basically tried to prove the charges against the accused/Appellant on the basis of extra judicial confession made by the accused and the circumstantial evidence. The fact of delivering a child by accused/Appellant Chabadi Bai and the recovery of the dead body of the child stand proved and learned Counsel for the accused/Appellant has not challenged this finding of the trial Court. Even otherwise the statement of the prosecution witness P.W.2 Patiram, P.W.3 Tuleshwer, P.W.4 Dr. S.N. Upaddhyaya, P.W.5 Jagdish Prasad, P.W.7 Gurango, P.W.9 Pavitra Bai, mother of the accused/ Appellant shows that the accused delivered a child.

P.W.4 Dr. S.N. Upadhyaya who conducted the post mortem on the body of the child has said that he conducted the examination on the body of the child and a perusal of the statement of P.W.8 Dr. R.L. Upaddyaya reveals that he examined the accused Chabadi Bai and found that on pressing milk was coming out from her breast, he also examined her gynecologically and prepared a report and has said that Chabadi Bai delivered a child before 7 days of examination. Therefore, in view of this evidence it is proved that the accused Chabadi Bai delivered a child near about 14th of February, 1991.

8 Now the question is as to whether Chabadi Bai delivered a live child and thereafter she murdered the said female child by pressing her neck because this is a charge against the accused/Appellant that she murdered the child by pressing her neck.

Now coming to the question of extra judicial confession, primarily the finding of the trial Court is based on two witnesses namely P.W.2 Pati Ram and P.W.3 Tuleshwer, they are the witness to whom Harihar, father of the accused Chabadi Bai informed and after receiving that information they went to the pond from where the dead body was recovered. They said that on enquiry Chabadi Bai said that after delivery she had thrown the child into the pond and even P.W.3 has gone to the extent that on enquiry she admitted that she has murdered the child by pressing her neck. First of all we look towards the statements. In fact the prosecution has not introduced these witnesses, as the witness to the extra judicial confession. Their statements u/s 161 Cr. P.C. were not recorded by the Investigating Officer, therefore, there are no previous statements of these two witnesses, upon which it can be relied upon that Chabadi Bai made an extra judicial confession before these two witnesses. For the first time they deposed before the Court only therefore much reliance cannot be placed on their statements. They are panch witnesses of panchnama Ex. P/6 which was prepared in their presence about the dead body of the child and that bears their signatures. If we look at the wording of this document it has written that "we panchas are of the opinion that newly born female child of Chabdi Bai died in suspicious circumstances, because Chabadi Bai is residing with his father since last three years and she is not residing with her husband". Thus this is the first document prepared in which nothing has been written that Chabadi Bai confessed before them that she murdered the child by pressing the neck, on the contrary it has been written that "the death of the child has taken place in suspicious circumstances".

Now if we scrutinize the statements of P.W.2 Pati Ram in his examination in chief he has said that when enquiry was made from Chabadi Bai about the delivery of the child she said that it is correct, and further said that I have thrown the child into the pond and then Chabadi Bai took them to the pond where they saw that the child was floating on the water. More over in the report Ex. P/4 which was lodged at P.S. Lailunga by this witness in presence of the Harihar and Chabadi Bai nothing has been said in that report that Chabadi Bai confessed before him that she has murdered that child. This witness has simply said that Chabadi Bai admitted that she delivered the child and threw it into the pond, so he has not said that Chabadi Bai admitted before him that a live child was delivered and she murdered the child by pressing the neck. As such this extra judicial confession is of no value. More over it has not been proved by the prosecution that any confession made before this witness was voluntary one or the accused admitted the crime of his own volition. On the contrary this witness said that on enquiry she admitted.

Now coming to the statement of P.W. 3 Tuleshwer, as mentioned above his statement was not recorded u/s 161 of the Cr. P.C. and for the first time he deposed before the Court that Chabadi Bai confessed before him that she murdered the child by pressing the neck. Therefore this statement cannot be believed. If he was already knowing then why the Investigating Officer did not record the statement u/s 161 of Cr. P.C. Similarly he is the witness of Ex. P/6 panchnama. As mentioned above in that panchnama also it has been written that the child died in suspicious circumstances. More over these two witnesses have not said that Chabari Bai confessed before them on her own volition, on the contrary they have said that on enquiry she has admitted. In his cross examination he has admitted that Patiram got the report written in his presence and after hearing the report Ex. P/4 he said that, yes Patiram got this report written. In Ex.P/4 report as mentioned above, it is nowhere mentioned that Chabari Bai confessed the fact that she murdered the child. In his cross examination he has said that as informed by the accused persons the child was born alive but as mentioned above this fact was not disclosed by this witness earlier to this statement and his statement u/s 161 Code of Criminal Procedure was not recorded. P.W.5 Jagdish even though has been declared hostile but he has also said that when Tuleshwer enquired from Chabari Bai then she said that she has delivered the child and the child was thrown into the pond but he has not said that Chabadi Bai confessed before him that she murdered the child by pressing her neck. In the cross examination by the Govt. Advocate he said that he did not give the statement Ex. P/11 to the police in which it has been written that Chabari Bai informed that she murdered the child by pressing the neck therefore this witness is also of no use. Similarly P.W. 9 Pavitra Bai, mother of the accused has said that on enquiry from the villagers her daughter informed that she delivered the child. More over if we look at the statements of Dr. S.N. Upadhyaya who conducted the postmortem on the body of the child, although he stated that "in my opinion the child was born alive" but he has not assigned any reason on the basis of which it is said that the child was born alive.

Now if we look at the postmortem report on page-6, the doctor has opined that ''it is not possible to give an opinion about how long did the child alive and what was the cause of death'', so in view of this opinion of the doctor it cannot be said that the child was murdered by the accused/ Appellant by pressing the neck. As such there is no evidence on record which goes to show that the child was born alive and thereafter murdered by the accused/Appellant by pressing her neck. Therefore, in view of the what been discussed herein above we are of the opinion that the prosecution has not been able to prove beyond all reasonable doubts that the accused Chabadi Bai give birth to the live child and thereafter she murdered the child by pressing her neck when the offence u/s 302 is not proved, the offence u/s 201 automatically vanished. As such the offences u/s 302 and 201 of the I.P.C. have not been proved against the accused/Appellant therefore the finding of the learned trial Court for the conviction of the accused/Appellant u/s 302 and 201 of the Indian Penal Code for murdering the child and thereafter causing disappearance the dead body in order to conceal the evidence cannot be sustained. As such the judgment of conviction and the sentence awarded by the learned trial Court are liable to be set aside. Accordingly the same is set aside. Accused/Appellant Chabari Bai is acquitted of the charges u/s 302 and 201 of the I.P.C.

It is unfortunate that the accused Chabari Bai has already completed the sentence and it has been informed by both the counsel that oh completion of the sentence she has been released on permanent probation. Even though she is being acquitted of the charge yet the accused has already served the sentence awarded to her.