CHINTAMANI Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-5-29
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on May 01,2013

Chintamani and Another Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

- (1.) In the charge-sheet filed upon investigation pursuant to the F.I.R. lodged by Shobha Devi (PW 1) on 6th November, 2006 at 02:00 P.M., it was alleged that the appellants are guilty of offences punishable under Sections 302/34, 201/34 and 318 of I.P.C., inasmuch as, they have murdered their new born baby by burying him in the field of appellant No. 1. It was alleged that the said crime was committed as appellant No. 2 was the daughter-in-law of appellant No. 1 and the child was that of appellant No. 1 for the purpose of saving their face in the society. On the basis thereof charge was framed. By the judgment under appeal, appellants have been convicted under each of the said Sections. Two appeals have been preferred by the appellants; one of them from the Jail and the other at their instance. Both of them are being dealt with hereafter. It appears to be the contention that there is no evidence of homicide. It appears to be the further contention that there is no direct evidence of commission of the alleged crimes. It appears to be also a contention that the child, whose dead body was recovered, was the child of the appellants, there is no evidence. PW 1, who lodged the F.I.R., is the daughter of appellant No. 1. The F.I.R. was counter-signed by other villagers. In that, it was stated that the appellants are residing together, and that, they have developed illicit relationship amongst each other and, for that reason, the husband of appellant No. 2, who happens to be the son of appellant No. 1 is residing apart. It was contended that the fact that the child is being buried by the appellants has been watched and seen by the villagers. Miss Suman (PW 2), a 15-year-old girl gave evidence to the effect that she had seen that the appellants are burying, in the field of appellant No. 1, a child, who was still alive as he was crying. Post-mortem of the dead body was conducted by Dr. Teeka Prasad Dimri (PW 4). In the post-mortem report, it was stated that the cause of death is asphyxia. He stated in the report that in the mouth of the dead body, clay was present and tongue was swollen. While deposing in court, PW 4 stated that presence of mud in the mouth may cause asphyxia. The fact remains that after appellant No. 2 was arrested, she was medically examined by Dr. Rashmi Shukla (PW 7). PW 7 proved the report of medical examination of appellant No. 2. In the said report, it was stated that on examination, it was found that appellant No. 2 has delivered a baby 4 to 5 days before her examination. This examination was conducted on 7th November, 2006. The post-mortem was also conducted on 7th November, 2006, where also it was indicated that the dead body of a child, who lived for one day, was produced for conducting post mortem, and that, the death occurred 3 to 5 days back. Appellant No. 2, while recording her statements under Section 313 of the Code of Criminal Procedure held out that one month back, before she was medically examined, she had allegedly delivered a dead child. At the same time, the defence did not successfully challenge the report of PW 7, nor could bring on record anything while PW 7 was being examined that either oral testimony of PW 7 is not acceptable or that her report, tendered in evidence, should not be looked at.
(2.) That being the situation, it is established on evidence that the appellants were living together, the appellants buried a living child in the field of appellant No. 1 one day after the birth of the child and, by reason of the child being buried, the child died of asphyxia and that appellant No. 2 had given birth to a child at around the same time. The dead body was recovered on 6th November, 2006 when inquest was made and, as aforesaid, on 7th November, 2006 while post-mortem of the dead body was made, appellant No. 2 was medically examined. The post-mortem reported that the death has taken place 3 to 5 days back and the dead body was of a child of only one day. At the same time, the medical examination of appellant No. 2 revealed that she has given birth to a child 4 to 5 days back. Therefore, the ocular evidence supported by medical evidence has established the charge against the appellants and that having been accepted by the judgment under appeal, the same is not interferable.
(3.) The appeals fail and the same are dismissed. Let a copy of this judgment be sent to the court below alongwith lower court records.;


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