Mst.Prem Kanwar vs State Of Rajasthan

Appellant has filed this appeal challenging the judgment/order dated 06.07.1989 passed by the trial Court, whereby she was convicted and sentenced

qua offence punishable under Section 302 IPC.

Prosecution case was set in motion on account of recovery of dead body of an infant near the pond. The dead body was sent for post-mortem

examination. As per post-mortem examination report (Exhibit P-8), cause of death of the deceased was drowning leading asphyxia and death.

After completion of investigation and necessary formalities, challan was presented against the appellant. Charge was framed against the appellant qua

offence punishable under Section 302 IPC. Appellant did not plead guilty to the charge framed against her and claimed trial.

During trial, prosecution examined 16 witnesses to prove its case. Appellant when examined under Section 313 Cr. P.C., after the close of prosecution

evidence, denied the allegations levelled against her. Appellant did not examine any witness in her defence.

Learned counsel for the appellant has submitted that the prosecution had miserably failed to prove its case. There was no evidence on record with

regard to the fact that the infant whose dead body was recovered, was delivered by the appellant. Parents of the appellant had stated that she had not

given birth to any child. Appellant had been convicted and sentenced merely on the basis of presumptions.

Learned State Counsel has opposed the appeal. Present case relates to murder of an infant aged about 22-25 days. Appellant is alleged to be the

mother of the said infant. Exhibit-P-8 is the post-mortem report of the infant. The said report was proved by PW-11 Dr. Jagdish Prasad Raigar. PW-

11 deposed that the cause of death of the deceased infant was drowning and the infant was wearing a red coloured Jangleya.

It has been held by the Hon'ble Supreme Court in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. (AIR 1990 SC 79), as under:-

........ This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the

following tests :

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human

probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete

and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt

of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra ).

It has also been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552, as

under:-

There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled

principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The

circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e.

the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as

not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of

the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should

be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only

when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.

Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must

be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain

of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been

proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that

the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial.

Let us examine the facts of the present case, to come to the conclusion that as to whether prosecution has been successful in completing the chain of

circumstances leading towards the guilt of the appellant.

PW-1 Jamaluddin deposed that about 10-11 months ago at about 8-9 AM, he had seen a dead body lying near the pond (out of water). The dead body

was of an infant aged about 20-25 days. The said infant was wearing one red coloured baniyan type cloth.

PW-2 Gambhirmal deposed that appellant and her mother had visited his shop about 11-12 months ago. He further stated that the appellant and her

mother were not carrying any child.

PW-3 Sujanmal deposed that about 10-11 months ago, a dead body of 10-15 days old infant was recovered from the pond.

PW-4 Dev Kumar deposed that he was posted at the Check Post, Pachewar on 14.12.1986. Information was received that dead body of an infant

was lying near the pond. He reached the spot and the dead body of the infant wearing a red coloured cloth was taken in possession.

PW-5 Laxman Singh deposed that he got married to the appellant about one and a half year ago. However, the appellant delivered a child after five

months of his marriage. His father and others told him that the child was not theirs as it was born after five and a half months of marriage. Then, his

brothers and his uncle left the appellant at her parental house along with the child, who was wearing a red coloured cloth. In his cross-examination, he

deposed that he had never seen the child.

PW-6 Bhanwar Singh deposed that Laxman Singh was his brother and had got married to the appellant about one and a half years ago. Appellant

gave birth to a child after five and a half months of her marriage. Then, they left the appellant along with her child at her parental house. At that time,

the child was wearing a red coloured Jangleya. In his cross-examination, he deposed that Jangleya was not worn by the child in his presence. He

further deposed that at that time, when the appellant delivered the child, Harku Nurse was present. He also stated that there was a Primary Health

Centre in their village. He did not know if the birth of the child had been entered in the register.

PW-7 Nathu was declared hostile.

PW-8 Shri Lal was also declared hostile.

PW-9 Dale Singh deposed that at about one and a half year ago, his son was married to daughter of Taju Singh. He did not know the name of his

daughter-in-law. After looking at the appellant who was present in the court, witness stated that his son had got married to the appellant. He further

stated that the appellant had delivered a child after five months of marriage. Hence, the child was not theirs and they had left the appellant along with

the child with Taju Singh. At that time, the child was wearing red coloured Jangleya .

PW-10 Dr. Puran Mal Sharma deposed that on 13.12.1986, she had medically examined the appellant. He was of the opinion that the appellant had

delivered a child about 20-30 days prior to the examination.

PW-12 Taju Singh deposed that his daughter Prem Kanwar had not delivered any child.

PW-13 Bhura deposed that Prem Kanwar had not delivered any child.

PW-14 Jai Singh deposed that Laxman Singh had got married to the appellant and appellant had delivered a child after five months of marriage.

Appellant as well as the child were left at her parental house. The child was wearing a red coloured Jangleya. In his cross-examination, he deposed

that the child was not put any clothes in his presence. The entry regarding the birth of the child was not made in any notebook or before the priest.

PW-15 Dr. Suchitra Jain has corroborated the statement of PW-10 Puran Mal Sharma.

PW-16 Bansidhar has deposed with regard to the investigation conducted by him.

Thus, in the present case, first circumstance that the prosecution was required to establish was that the appellant had given birth to a child in her in-

laws house, as alleged by her in- laws' family. So far as, parents of the appellant are concerned, they had stated in their statements, during trial, that

the appellant had not delivered any child. Prosecution has failed to produce any record, wherein any entry had been made with regard to delivery of a

child by the appellant. PW-6 Bhanwar Singh deposed that at the time of birth of child, Harku Nurse was present there. However, the said Nurse has

not been examined during trial to establish the fact that a child had been delivered by the appellant. The prosecution has only placed reliance on

statements of PW-10 and PW-15 in this regard.

Thus, the first most important circumstance that child had been delivered by the appellant, has not been established by the prosecution beyond the

shadow of reasonable doubt.

The next circumstance which was required to be established by the prosecution was that the child delivered by the appellant was the same whose

dead body was recovered. A perusal of the post-mortem report reveals that the dead body was of a male infant. However, none of the witnesses

have deposed that the appellant had given birth to a male child. There is also no expert opinion to the effect that the dead body of the infant was the

biological child of the appellant.

There is no circumstance brought on record by the prosecution that the appellant was last seen near the place of incident.

Thus, after carefully examining the evidence on record, we are of the considered opinion that the prosecution has failed to bring on record the chain of

circumstances which would lead towards the guilt of the appellant and negate her innocence. It is settled proposition of law that the prosecution has to

prove its case against an accused beyond the shadow of reasonable doubt. Whenever, there is a doubt in prosecution story, benefit of the same has to

be extended to the accused.

Since, in the present case, prosecution has failed to establish its case against the appellant beyond the shadow of reasonable doubt by completing the

chain of circumstances leading towards her guilt, appellant is liable to be acquitted of the charge framed against her.

Accordingly, the appeal is allowed. Appellant is acquitted of the charge framed against her. The judgment/order dated 06.07.1989 passed by the trial

Court are set aside.

Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Prem Kanwar is directed to forthwith furnish a

personal bond in the sum of Rs. 25,000/-, and surety bond of the like amount, before the Registrar (Judicial) of this Court, which shall be effective for

a period of six months with the stipulation that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant

Prem Kanwar on receipt of notice thereof, shall appear before the Supreme Court.