Sudha Kujur vs State Of Chhattisgarh

Ravindra Kumar Agrawal, J

This appeal arise out of judgment of conviction and order of sentence dated 06.09.2022 passed by the Additional Sessions Judge/Additional Charge of FTC, Jashpur, District Jashpur, in Sessions Case No.03/2021 convicting the accused-appellant under Sections 302 and 201 IPC and sentencing her to undergo Rigorous Imprisonment for life and fine of Rs.10,000/- and Rigorous Imprisonment for 5 years and fine of Rs.5000/-respectively with default stipulations.

As per the prosecution’s case, there was a family dispute between the accused-appellant and her husband and his family members. The appellant wants to reside separately along with  her husband. In the family of her husband since there was two sisters in law who happens to be physically disabled and also the old aged mother, her husband refused to reside separately from his family. In the said condition and out of anger, on 06.09.2020 at about 6-7 PM in the evening along with her 8 months old child Ronit Ram (since deceased) she left her matrimonial house of village Jabla. It is also the case of the prosecution that due to the aforesaid dispute she does not want to keep the child with her. She murdered her child on the way and thrown the deadbody in Panchakki River and went to her parental home where she narrated that at the time of cleaning her child who answered the call of nature, her child slipped out from her hands and drown in the river. On 07.09.2020 at about 20:40 hours, the appellant accused herself lodged a Merg Intimation in which also she informed the Police that her child has answered the call of nature and while cleaning him her child slipped out from her hands and drown in the river. The Police registered a Merg Intimation vide Ex. P/14 on the information given by the appellant-accused.

During merg inquiry, the body of the deceased was recovered from a distance of 60-70 meters away from the place where he was said to have been slipped out from the hands of the appellant. Inquest, Ex. P/16 was prepared in presence of the witnesses and the body was sent for postmortem.

In the postmortem of the body of the deceased, Dr. Dhirendra Kumar Agrawal, PW-11, has found head injury in the right temporal region and swelling present over that part of the head. The right temporal region of the brain was found fractured and clotted blood was also found. The doctor has submitted his postmortem report vide Ex. P/17 and opined that cause of death is due to head injury as right temporal region of the brain was fractured and blood clotting found due to hit by something. The nature of death was head injury due to brain hemorrhage and cause of death is due to falling in a hard surface causing head injury.

When a query Ex. P/19 was made from the Doctor as to what was the exact cause of the injury and whether any water was found in the stomach of the deceased at the time of postmortem or not, the doctor PW-11 opined that death was due to falling in hard surface so head injury caused. Death is before sinking in water as water was not found in the stomach. Another query was made from the Doctor vide Ex. P/23 for his opinion about the time of death whether the fracture on head could be caused from fall on the surface or not, and whether the fracture in head could be caused by thrown him on the surface or not. In reply to query, the Doctor opined that the death was within 20-24 hours from the postmortem, if the mother was in standing position and if the child slipped on hard surface, then there is possibility of fracture on his head and further there is every possibility of fracture on head if the 8 months old child was thrown on hard object or surface.

After the postmortem report, an FIR Ex.P/20 was registered and statement of witnesses were recorded and after completion of investigation charge sheet under Sections 320 and 201 IPC was filed against the appellant and the trial Court has framed the charges under Sections 302 and 201 IPC accordingly. The appellant abjured her guilt and plead innocence.

So as to hold the appellant guilty, the prosecution examined 14 witnesses. The statement of appellant was also recorded under Section 313 CrPC in which she denied the circumstances appearing against her in the prosecution case and pleaded innocence and false implication.

Learned Trial Court, after hearing the learned counsel appearing for the prosecution as well as for the accused appellant and considering the evidence available on record, has convicted and sentenced the accused appellant as mentioned in the paragraph-1 of this judgment. Hence this appeal.

Learned counsel for the appellant would submit that the appellant is innocent and no legally admissible evidence is available against her. The doctor who has conducted the postmortem has not given any specific opinion as to whether the death of the deceased Ronit was either homicidal, suicidal or accidental. In absence of specific finding with respect to homicidal death of the deceased Ronit, the appellant cannot be held guilty for causing murder of her son Ronit. He would further submit that the doctor has clearly stated and opined that if mother was in a standing position and if the child falls on the surface, he may have received head injury which exactly is the defence of the appellant and from the very beginning she stand on the fact that while going to her parents house, on the way, when she was cleaning the body of her child who answered the call of nature, her child slipped out from her hands and drown in the river. There was a hard surface on the place where the incident took place and therefore the possibility of the same can be ruled out.

It is further submitted by the counsel for the appellant that there is no eyewitness to the incident to the fact that the appellant has thrown her child on the surface, but the conduct of the appellant is also relevant that she immediately informed her parents and lodged a report to the police. Had she been murdered her child, she would have not disclosed the true facts to the Police and would have fled away somewhere else. He would further submit that the appellant was having no animosity with her child because if she was having any grudge with her child, she could have left him in her matrimonial home and came out alone to go to her parents home. Being a mother, she would have natural affection with her child and she could not do in the like manner. Since there was a family dispute in between the appellant, her husband and in-laws, in order to eliminate her from their family, they stated against the appellant and therefore prayed for setting aside of the impugned judgment of conviction and sentence.

11.On the other hand, supporting the impugned judgment of conviction and sentence, it has been argued by the counsel for the State that the conviction of the accused appellant is strictly in accordance with law and there is no infirmity in the same.

12.We have heard the counsel for the parties and perused the evidence and material available on record.

Ravindra Ram, PW-1, who is the husband of the appellant, have stated that since last 2-3 years both of them were residing as husband and Wife and having good relation. He was having two sisters in his house. On the date of incident when he was returning back to his house from his work place, he saw that the people gathered near Panchakki river and saw that his son is lying dead there. The accused appellant was also there and when he asked from her about the incident, she disclosed that her son has answered the call of nature and when she was cleaning his body, he slipped out from her hands and drown in the river. The husband of the appellant informed the police immediately and taken the police to the place where his son was lying dead. The same story was narrated by the appellant to the police. After postmortem of the body, the same was handed over to him for his last rites. It is also stated that after the last rites of his son when the police asked from the appellant she repeated the same story before the police. Upon declaring him hostile, when leading question asked to him, he stated that the dispute in his family was with respect to playing with the child and on that issue on 06.09.2020 at about 8 a.m. the appellant was going to her parental house. When he returned back after playing football, his mother narrated the incident before him. He has further stated that on 07.09.2020 when he returned back after taking bath, his wife i.e. the accused appellant was preparing for going to her parental house and when he tried to stop her, she left his house along with his child and one bag.

In paragraph 17 of his cross examination he has stated that he has not disclosed anything to his mother. He has not seen snatching of bag from the appellant by his mother and it is also true that the police has not asked any question from his wife i.e the appellant in front of him.

Sohani Bai, PW-2, mother-in-law of the appellant have stated that since last 1 and ½ years back his son and accused appellant were residing as husband and wife and out of their wedlock their son Ronit was born. At the time of Rajkarm festival which comes prior to Dashehra festival, one Surendra has informed her that the son of Sudha is found at Panchakki river. When she went on the spot along with other villagers and asked the accused appellant about the incident, she has not disclosed anything and she got no information from there. It is further stated that Sudha has disclosed the fact in the police station that she thrown her child on the surface. After declaring her hostile, leading questions were asked in which she stated that on the date of incident Sudha was going to her parental house along with her child in an anger state of mind. When she went to bring her back from the way, she could not succeeded for the same, but she has taken her bag.

16.PW-3, Amod Ram, is declared hostile. He is witness of the fact that when he reached on the place of incident, the deadbody of the deceased was lying there. PW-4, Satyendra Ekka, is also the witness of same nature as the witness PW-3, Amod Ram is. PW-5, Ramjan Kujur, is the father of the accused appellant, who too was declared hostile and not supported the case of the prosecution.

17.PW-6, Bhagirathi, is the witness of search Panchnama, Ex. P/4, Panchnama, Ex. P/9 and Inquest, Ex. P/10.

18.PW-7, Amrit, has not stated anything specific against the accused appellant. PW-8, Mohd. Farukh Zaved is the Patwari who has prepared the spot map, Ex.P/5 in presence of the witnesses. In his cross examination, he admits that the spot map has not been prepared on the basis of information given by the accused appellant.

19.PW-9, Satish Kumar Bhagat, is the brother of the accused appellant and he is also declared hostile. Her parents also not supported the case of the prosecution.

20.PW-10, Sanjay Yadav, is the witness of search Panchnama, but nothing supportive in prosecution’s case.

21.PW-11, Dr. Dhirendra Kumar Agrawal, is the doctor who conducted postmortem of the body of the deceased Ronit. He has stated that on 08.09.2020 at about 1:30 PM he did the postmortem of the body of Ronit, aged about 8 months, and found swelling over the right temporal region and except his head part, other part of the body was normal. There was no internal bleeding in his abdomen. All the internal organs were found normal. He found fracture of bone just below the right ear and clotted blood was also found which is of the size of 6 cm. He has opined that cause of death death is due to injuries over the right temporal region and fracture of right temporal bone. He has submitted the postmortem report vide Ex. P/12. When a query Ex. P/19 was made from the doctor as to what was the exact cause of the injury and whether any water was found in the stomach of the deceased at the time of postmortem or not, in reply to the query, the doctor PW-11 opined that death due to falling in hard surface, head injury caused. Death is before sinking in water as water was not found in the stomach.

In para 11 of his cross examination, when it has been asked from the doctor that whether the injuries found on the body of the deceased was antemortem or postmortem, he has stated that it is not necessary to mention in the postmortem report that the injuries are antemortem or postmortem. He has also admitted that the nature of antemortem injury and postmortem injury are different. He has also admitted that the injuries found on the body of the deceased could also be caused by anybody after his death.

In paragraph-12 of his cross examination, the doctor has admitted that he has not disclosed in his postmortem report that whether the nature of death is homicidal, suicidal or accidental. He explained that since there is no column in the postmortem report in this regard, he has not opined the nature of death as to whether the same was homicidal, suicidal or accidental. He has further admitted that to ascertain about the exact nature of death, the postmortem is to be done. In paragraph 14 of his cross examination, the doctor has further admitted that if the mother is standing alongwith the child and in case the child falls on the surface, then there is every possibility of receiving fracture over the head bone.

24.PW-12, J.R. Kurre, is the Investigating Officer, who has conducted part of the investigation and admitted in paragraph 6 that the doctor has not opined the exact cause of death. Inquiry report was submitted by him vide Ex. P/17. He has further admitted in paragraph-8 that he has not interrogated the accused appellant.

25.PW-13, Laxman Singh Dhurve, is the Inspector who has also conducted the part of the investigation. PW-14, Mahesh Bhagat is the relative of PW-1 and PW-2 who has stated that when the police asked from the accused appellant, she stated that the child was slipped out from her hands and drowned in the river.

The accused can be convicted only if evidence comes on record that the deceased died due to homicidal death. In the case in hand, the Doctor could not give his definite opinion that the death of the deceased is homicidal in nature. There is other view also regarding death of the deceased i.e. due to accidental fall on the surface as the defence taken by the appellant. The Doctor, PW-11 has not denied that due to fall on the surface the injuries found on the body of the deceased could not be received by him or death could not be possible by the said injuries. Rather he admits the fact that death could be caused if a child would fall on the surface which is supported by a query report Ex. P/23 given by the Doctor, PW-11. No other external or internal injuries were noticed by the Doctor who has conducted the postmortem of the deceased.

In the case in hand, the appellant has succeeded in establishing her probable defence which is ruled out the homicidal death of the deceased and involvement of the appellant in the commission of the alleged offence and thereby discharged her burden casts under Section 106 of the Indian Evidence Act, 1872.

A close scrutiny of the evidence available on record, makes it clear that there is no legally admissible evidence against the accused appellant showing her involvement in the commission of crime causing death of her 8 months old child. As per the evidence of PW-2, Sohani Bai, who is the mother-in-law of the appellant, after declaring her hostile, she stated that the accused left her house along with her 8 months old child in the anger state of mind, but she was not aware as to where the appellant had gone thereafter. She has not stated in her statement that what grudge the appellant was having with her eight months old child so as to cause her death. It is not a case of the prosecution that the appellant has murdered her child because of dispute between the appellant and her husband or dispute between the appellant and her in laws.

True it is that the appellant left her matrimonial house along with her child, but she has explained the circumstances under which the deceased died. Even the husband of the appellant Ravindra Ram, PW-1, has stated in paragraph 2 of his deposition that when he saw his son lying dead in the place of incident and the appellant was also present there in the mob, she disclosed that her son has answered the call of nature and when she was cleaning the body of her son, her son slipped out from her hands in the river. The Doctor has also admitted that if the mother is in standing position and child falls from her hands, on surface, the death of child could have been caused.

There is no clinching evidence against the appellant that it is she who has caused death of her son by homicidal death. In the absence of any convincing evidence against the appellant to hold guilty under the alleged offence of murder of her 8 months old child, she is entitled for benefit of doubt and thereby she is acquitted from the charges under Section 302 IPC.

Since, the homicidal death of Ronit (8 months old child) is not proved by the prosecution and from the above discussion, it is found that the deceased dies due to accidental fall on the surface while his body was cleaning by his mother/appellant and during this process, the possibility of receiving injuries on the head of the child is admitted by the doctor who conducted postmortem of the body, it can not be said that the appellant is guilty of causing disappearance of evidence of offence and giving false information. Section 201 of IPC lays down the essential ingredients of the offence that it must be proved that the offence has been committed not merely a suspicion that it might have been committed. The conviction of the appellant under Section 201 of IPC depends upon the sustainability of the conviction of the appellant under Section 302 of IPC. In the case in hand, since she is acquitted from the offence of Section 302 of IPC, she can not be convicted under section 201 of IPC.

Accordingly, the appeal is allowed. The judgment of conviction and order of sentence dated 06.09.2022 is set aside and the appellant is acquitted of the charges under Sections 302 and 201 IPC. She is reported to be in jail from 06.09.2022, she be released forthwith, if not required in any other case.

Keeping in view the provisions of Section 437-A CrPC, the appellant-Sudha Kujur is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.