N.K.Mehrotra - (1.) -This is an appeal under Section 374 (2) of the Criminal Procedure Code against the judgment and order dated 3.11.1987 passed by the Additional Sessions Judge in Sessions Trial No. 17 of 1987, State v. Smt. Gita Devi, in which the accused was tried under Section 302 Indian Penal Code but was ultimately convicted under Section 304 (1) and sentenced to a rigorous imprisonment of seven years.
(2.) ACCORDING to the prosecution story, on 29.8.1985, Ram Gopal lodged a written information to the police station Kachauna to the effect that the dead body of a child is lying underneath the well near the house of Jaikaran Gupta in his village. This information was entered in the G.D. No. 8, dated 29.8.1985 at the police station. Investigation was entrusted to Shri Surendra Pal Singh who reached on the spot on the same date. He prepared inquest report on 29.8.1985 at 12.50 p.m. He also prepared police form No. 13, photo laash and report to the R.I. and the C.M.O. He also prepared sample of seal. After that the dead body was sent for post mortem and on the same day, the Investigating Officer prepared the site plan after inspecting the spot. Autopsy was done by Dr. S. S. Rathore on 30.8.1985 and he opined that the death of the child occurred due to asphyxia as a result of drowning. No mark of injury was found over the body. Investigating Officer after completing the investigation, submitted a charge-sheet against the accused Smt. Gita Devi. During the trial charge under Section 302 was framed against the accused Smt. Gita Devi to which she pleaded not guilty. At the time of her statement, she has stated that her husband used to remain annoyed with her because of the birth of a daughter. He used to say that why a son was not produced. She has further stated that on the date of incident at about 4.00 p.m., her husband has come from Lucknow where he was employed and he had beaten her and she had gone to bed along with the daughter in a room and her husband had gone to another bed room. When she awoke at about 3.00 a.m., in the night, she did not find her daughter and the husband inside the house and when the dead body of her female child was found from the well, only then she came to know about the death of her female child. Prosecution examined P.W. 1 Ram Gopal the informant, P.W. 2 Chittar, P.W. 3 Ram Awatar, P.W. 4 Dinesh Prakash Singh, P.W. 5 Shiv Ram, P.W. 6 S. S. Rathore, P.W. 7 S.I. Surendra Pal Singh and P.W. 8 S.I. D. D. Chaturvedi. P.W. 1 is only an informant who has proved the F.I.R., exhibit Ka-1. He has only informed that the dead body of a child was found lying near the well in the village and several villagers gathered on the spot. P.W. 2 Chittar and P.W. 3 Ram Avtar are the witnesses of the fact that they had seen the accused Smt. Gita Devi near the well at the alleged time. P.W. 2 Chittar is the witness of extra judicial confession by the accused. He has given statement that on the next date from the incident, Gita Devi had come to him and confessed about the throwing of the child in the well. P.W. 3 Ram Avtar has given the statement that he had seen Gita Devi returning from the side of the well in the night. P.W. 4 Dinesh Prakash Singh is the formal witness who has proved G.D. P.W. 5 Shiv Ram Yadav is the formal witness who had taken the dead body for post-mortem. P.W. 6 Dr. S. S. Rathore has conducted the autopsy of the dead body and has prepared post-mortem report. P.Ws. 7 and 8 S.I. Surendra Pal Singh and S.I. D. D. Chaturvedi are the Investigating Officer.
(3.) LEARNED Sessions Judge, relying on the evidence of the prosecution, convicted accused Gita Devi under Section 304 (1) of I.P.C. and sentenced her to undergo rigorous imprisonment for seven years. It is against this judgment and order, the present appeal has been preferred. I have heard Shri Arun Sinha, learned counsel for the appellant and Smt. Maya Bhatt learned counsel for the State.;