Jose @ Joseph vs State Of Kerala on 12 July, 2019

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Kerala High Court

Jose @ Joseph vs State Of Kerala on 12 July, 2019

Equivalent citations: AIRONLINE 2019 KER 267

This appeal has been preferred by appellants Jose @ Joseph (1st accused 'A1') and Mersey @ Mariya (2 nd accused 'A2') who are husband and wife, challenging the judgment of conviction and order of sentence passed by the Additional District and Sessions Judge for the trial of cases relating to Atrocities and Sexual Violence against Women and Children, Ernakulam by which A1 was found guilty for offence under Section 302 and 201 of the Indian Penal Code, 1860 (for short 'IPC') and A2 was found guilty for offence under Section 302 read with Section 120B of IPC and also for Section 201 read with 120B of IPC and was sentenced to suffer as under: A1 was sentenced to undergo imprisonment for life and to pay a fine of `1,000/- (Rupees One Thousand only) for offence under Section 302 of IPC. He was further sentenced to suffer rigorous imprisonment for three years and to pay a fine of `1,000/- (Rupees One Thousand only) for offence under Section 201 of IPC. A2 was sentenced to suffer imprisonment for life and to pay a fine of `1,000/- (Rupees One Thousand only) for offence Crl.Appeal No.520/15 -:4:- under Section 302 read with Section 120B of IPC. She was also sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1,000/- (Rupees One Thousand only) with a default stipulation of rigorous imprisonment for two months for offence under Section 201 read with Section 120B of IPC.

2. Prosecution has the following case against the appellants: A1 and A2 are husband and wife and six children were born out of the wedlock. On 23/01/2008, A2 delivered another girl child which was the seventh one. Since it was a girl child, the accused/appellants entered into a criminal conspiracy to commit murder of the child. On the same day, at 09.00 p.m., A1 tightened a cloth around the neck of the new born baby and killed her at their house namely, Sharon Villa, Thomaspuram Road, Maradu Village. Thereafter, in order to cause disappearance of evidence, accused buried the corpse of child by digging a pit in their courtyard on the northern side of the eastern bedroom. Thereafter, on 27/01/2008, since foul smell began to spread out because of decomposition of the body, A1 dug out the body from the pit, put it in a plastic bag and abandoned it in the bush at Thykoodam church road.

Crl.Appeal No.520/15

-:5:-

3. Originally, the case was registered on 27/01/2008 by Sub Inspector of Police, Panangadu Police Station under Section 174 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for unnatural death, based on Ext.P1 First Information Statement given by PW1 Anilkumar. Later, on detailed investigation, the offence is allegedly revealed to be one under Section 302 read with 120B of IPC.

4. To prove the guilt of the accused/appellants, prosecution examined PW1 to PW19, marked Exts.P1 to P21 and identified material objects MO1 to MO5. On closure of prosecution evidence, accused/appellants were questioned under Section 313 (1) (b) of Cr.P.C. Both of them denied all allegations levelled against them and pleaded innocence. Written statement was filed separately. According to accused, the child was dead at the time of delivery due to umbilical cord strangulation. Since the baby was born dead, the church authorities would not permit to cremate in the graveyard for want of baptism. Hence, on the very same night, A1 took the dead body in a plastic bag, took it to the graveyard of the church, made a small pit by using a wooden log and buried the corpse. Since the pit was not so deep, the body Crl.Appeal No.520/15 -:6:- might have come outside and stray dogs might have bitten and carried the same to the open space. No evidence was adduced by defence.

5. Learned counsel for the appellants Sri.John Sebastian Ralph, argued that there is no evidence on record to show that the appellants had committed any offence alleged by the prosecution. There is absolutely no evidence to show that appellants entered into criminal conspiracy to commit murder of their new born baby. There is no evidence to show that the infant was born alive. Medical evidence is not sufficient even to conclude that death was homicidal. Admittedly, previous deliveries of A2 happened in the house itself. Defence case is true and believable and it is most probable in the light of available evidence. Moreover, this is a case in which there is no direct evidence. Hence, each and every link in the chain of circumstance must be proved by the prosecution beyond reasonable doubt. In the case at hand, prosecution miserably failed to prove the allegations against the appellants. Motive is not proved. Court below based the conviction on conjectures and surmises. He pleaded to acquit the appellants by extending Crl.Appeal No.520/15 -:7:- benefit of doubt.

6. Per contra, learned Public Prosecutor Sri.K.B.Udayakumar argued that the case against both accused/appellants is proved by the prosecution beyond doubt and Court below arrived at a just conclusion based on the same. It is proved by the prosecution that A2 was pregnant and that she delivered a girl child on 23/01/2008. On the same day, at about 09.00 p.m., in furtherance of criminal conspiracy hatched between A1 and A2, the new born was killed and was buried in their own compound in a pit taken for the purpose. Due to foul smell, the corpse was again shifted from there to a bush near the church and the incident came to light when PW1 saw the body of child. Medical evidence fully supports the prosecution case. Prosecution could prove beyond reasonable doubt that the child was born alive and that she met with a homicidal death. Section 106 of the Indian Evidence Act, 1872 (for short 'Evidence Act') comes into play and the explanation put forth by accused is not believable. Medical evidence brushed aside the possibility of umbilical chord strangulation. On the other hand, it points to a premeditated murder. According to the learned prosecutor, this is Crl.Appeal No.520/15 -:8:- a case in which the basic right of the girl child to live on the face of the earth is extinguished by her own parents. He sought for upholding the finding of the trial Court.

7. We heard both counsel at length and perused evidence on record. The allegation of the prosecution is that accused committed infanticide of their own new born baby in fulfilment of their secret agreement. Defence has a definite case that A2 delivered a still born baby and fearing that the Church would not allow to bury the dead body due to the fact that the child was not baptized, A1 buried the said child near to the Church. Mainly, two aspects are to be decided. Firstly, whether the child was born alive. Secondly, if born alive, whether the accused/appellants caused her death. Thirdly, if at all the accused caused the death of the child, whether it was in furtherance of criminal conspiracy entered into between them.

8. Evidence adduced by the prosecution is as follows:

PW1 gave Ext.P1 First Information Statement (for short 'FIS') to Panangad police on 27/01/2008 as he came to know from his friend Saineesh that a dead body of an infant is found near St.Raphael Church, Thykkoodam. Being a public figure, he went Crl.Appeal No.520/15 -:9:- to the spot and saw the dead body of an infant covered in a cloth lying in a bush near the shop by name 'Standard Travels'. Based on Ext.P1, a First Information Report (for short 'FIR') was registered by police under Section 174 of the Cr.P.C. on the same day.

9. PW2 is an attestor to Ext.P2 inquest report dated 27/01/2008. He deposed that he saw the dead body of the child near 'Standard Travels' and the head of the child was fully covered with cloth. The neck of the child was tightened using a chord. The body was in a plastic bag and he identified the same as MO1. During cross-examination, he stated that the chord was tightened over the cloth which was seen covering the head of the child.

10. PW3 is an attestor to Ext.P3 scene mahazar. A1 and A2 were staying in a house near to the house of PW3 for rent. He is familiar with all of them. He stated that during 2007 last and 2008 January, Mercy was pregnant.

11. PW4 is another neighbour of accused and he is an attestor to Ext.P3 mahazar. Accused were having six children. He stated that A1 took blood-stained sand and a grey coloured cloth Crl.Appeal No.520/15 -:10:- from the eastern corner of the house of accused where the child was buried. During cross-examination, he stated that accused are having two girl children and one of them is suffering from heart decease. He also stated that their one son died in a motor vehicle accident. He also deposed during re-examination that he saw the belly of Mersey enlarged. He do not have any direct information from Mersey regarding her bigger belly.

12. PW5 is the mother of A1. She deposed that A2 is the wife of A1. A1 and A2 are having four male and two female children. One son died in a motor vehicle accident. She turned hostile to the prosecution. She further deposed that all children were born in the house itself. Behaviour of A2 to her children was good. According to PW5, A2 cared her both girl children with love. PW6 is the mother of A2. She deposed that her house is towards north of Thomaspuram. Besides Mersey, she is having four male children. A1 is the husband of A2. Accused were having six children. One son died in a motor vehicle accident. It is her version that she tried to persuade A2 to undergo sterilization procedure to stop becoming pregnant. But A2 was not willing. She pleaded that she do not know whether A2 delivered a Crl.Appeal No.520/15 -:11:- seventh child as alleged. PW7 deposed that during 2008, she was working as Woman Police Constable of Panangad Police Station. She deposed that as per the instruction of S.I. of Police, she collected body part samples of the deceased child from Doctors of General Hospital, Ernakulam and Medical College Hospital, Alappuzha and entrusted it to Rajiv Gandhi Institute of Biotechnology and Forensic Science Laboratory, Thiruvananthapuram. During cross-examination, she stated that S.I. had given request to obtain samples. Behind the request she had given while collecting samples, she endorsed by writing the words 'received'. She further stated that she had along with her the forwarding note to lab issued from Court. She admitted that sample seals were not taken. She collected the items from hospital and handed them over next day to FSL. In FSL, they have collected whatever is needed for their test and the rest was given back to her. She packed them and sealed. On the next day, the same was given to RGCB. She received reports from lab. PW8 is the then Head Constable who took the corpse of the child from Thykoodam to Medical College Hospital, Alappuzha on 27/01/2008. Post-mortem was conducted on the next day. He Crl.Appeal No.520/15 -:12:- identified the body to Doctors. Since nobody was there to receive the corpse, the dead was buried in a cremation centre at Alappuzha. During cross-examination, he stated that he asked S.I. as to who were the relatives of the child. S.I. replied that he did not come to know about the same in investigation. He do not remember exactly whether there was any chord on the corpse while the body was taken for post-mortem examination. PW9 Suresh Kumar was working as DNA examiner at RGCB, Thiruvananthapuram. On 05/02/2008, they received samples connected with Crime No.82 of 2008 for DNA testing. Samples consisted of blood sample of Mariya @ Mercy and Jose @ Joseph and bone samples of an unknown child. According to PW9, DNA typing was done and Ext.P4 is the certificate of the same. It is his version that A1 is the biological father and A2 is the biological mother of the child. PW10 is the then S.I. of Police, Panangad Police Station. He registered Ext.P1(a) FIR at 04.00 p.m. under Section 174 of Cr.P.C. based on Ext.P1 FIS given by PW1 Anilkumar. He started investigation on the very same day. He reached the spot on the same day at 04.45 p.m. Ext.P2 is the inquest report prepared by him. As per Ext.P2, he seized MO1 Crl.Appeal No.520/15 -:13:- plastic bag of Nirapara Rice, MO2 cloth which was found to be covered on the head of the child, MO3 the cloth found tied on the neck of the child and MO4 the chord. Ext.P5 is the report adding Section 302 of IPC. Ext.P6 is the report filed for sending FIR and other documents to ACJM Court. He entrusted the body to PW8 and sent to MCH, Alapuzha for autopsy. PW10 admitted that in Exts.P5 and P6, the date is seen corrected as 28 instead of 29. in MO2 cloth, blood and hair were seen but they were not seized. The umbilical chord was found to be dry and spiralled. PW10 was shown a piece of cloth and asked from where the said item was seized. According to him, he did not seize such a cloth. He stated that the same seems to be part of MO2 cloth. He denied the suggestion that time shown in Ext.P1 is corrected as 04.00 instead of 04.30. He also admitted that in column no.12 of Ext.P1(a) FIR, the time is corrected as 02.00 instead of 02.30. There was black soil on the body of child. He stated that it is a usual practice that the constable who take the corpse for autopsy be directed to hand over the body after post-mortem to near relatives. He denied that HC 6065 (PW8 herein) had contacted him and asked about relatives of the dead child. PW10 handed Crl.Appeal No.520/15 -:14:- over investigation to Circle Inspector of Police on 28/01/2008 at 06.00 a.m. C.I arrested accused on 28/01/2008. PW11 is the then Village Assistant, Maradu Village. Ext.P7 is the site plan prepared by him which bears his seal and signature. Village Officer countersigned the same and handed it over to police. He also identified the signature of Village Officer. During cross- examination, he stated that the portion marked as 'A' in Ext.P7 inside the room is the place where delivery took place. In re- examination, he stated that the portion in Ext.P7 where it is marked as 'A' in the courtyard is the place where the dead body was buried. PW12 Alice is running a tailoring shop at Maradu on the first floor of her house. She knows both accused. It is her version that A2 had worked about one year in her shop. She stated that she had seen the belly of A2 bulged during the time in which she was working at her shop. On her enquiry, A2 replied that it was due to gas trouble. During cross-examination, she stated that A2 was regularly attending her duties and and she was honest in her work. PW13 Jiju is a resident of Maradu. He is engaged in marketing work of Araldite company. He has another house about half a kilometre away from the house in which he Crl.Appeal No.520/15 -:15:- was residing. In 2006, he rented out the said house to A1 and A2. The deal was through brokers. It was an oral agreement. Rent fixed was `1,000/- per month. They stayed there for about 1½ years and then vacated. To a question, he replied that he came to know that they had killed a child during their stay over there. Then, they vacated the house without much delay. During cross- examination, he stated that they had not paid the rent for last two months instead they adjusted the same towards the advance. He admitted that he has only hearsay information about the alleged killing of child.

13. PW14 Dr.Ajay deposed that on 28/01/2008, he conducted post-mortem examination of an unknown female child stated to be aged about 2½ months involved in the case at hand. Ext.P8 is the certificate issued by him. The body was identified to him by H C No.6065. The following are ante-mortem injuries noted:

"1. A pressure groove 9x1.5 cm almost transverse around the left side. It extended from 1.5 cm below the left angle of jaw, was placed 3 cm below chin, 1.7 cm below right angle of jaw and it terminated 4 cm above the root of neck at back.

On dissection, the tissue underneath the pressure groove showed decomposition changes. The Crl.Appeal No.520/15 -:16:- cartilages of neck and the vertebral column intact".

He opined that the body was that of a full term new born female. Post-mortem findings are consistent with history of death due to ligature strangulation. Injury no.1 is grave injury. Some force is required for causing injury no.1 and injury no.1 was sufficient to cause death. He further stated that it is possible to cause injury no.1 using MO4. In cross-examination, he stated that PW17 recorded his statement and read it over to him. Articles handed over to police in sealed condition alone is mentioned in his report. Other materials entrusted to police are not described in Ext.P8. Length of the body is not recorded in Ext.P8. One of the methods to ascertain the age is measuring the body. He stated further that he had recorded the condition of lungs under the heading 'other findings' in the following words: The viscera present as a puttaceous mass having no unusual smell. Lungs findings were not sufficient to decide whether the child had breathed or not. He added that it is possible to say that the child was born alive from examination of umbilical cord. Examination of umbilical cord by naked eyes is sufficient to ascertain whether the child was born alive or not. Because of decomposition of body, it was not possible to ascertain whether the baby was born alive or not. He Crl.Appeal No.520/15 -:17:- denied the suggestion by the defence that while MO4 was shown to him by PW17, he stated that it was not possible to cause death using MO4. Another suggestion was put to PW14 that the cartilages of neck would not have been intact if injury no.1 was caused with MO4 for which PW14 replied that it is possible to remain cartilage intact even if injury no.1 was caused with MO4. Suggestion was further put to the effect that the death of infant was due to umbilical cord strangulation. But PW14 stated that from the nature of injuries, there is no such possibility. In re- examination, he deposed that if death was due to umbilical cord strangulation, there would not have been groove on decomposed body.

14. PW15 Dr.Sheela Sadasivan is the then Civil Surgeon at General Hospital, Ernakulam who examined A2 Mercy, aged 38 years on 28/01/2008. Patient was brought by W.P.C. 9693 and P.C. 8732 and she was allegedly involved in Crime No.82/2008. On examination, her general condition was good. Breast showed changes of pregnancy. There was secretion from the nipple. Abdominal finding is that uterus palpable 16 weeks. On general examination it was found that vulva was gaping, vagina patulous. Crl.Appeal No.520/15 -:18:- There was a central perineal tear ¾ c.m. There was no acute bleeding. Cervix was patulous and it was open. Blood-stained discharge was present. OS open. Uterus enlarged to 16 weeks. Contracted. No active fresh bleeding. Evidence of recent delivery present. Ext.P9 is the certificate issued by PW15. In cross- examination, she stated that it is impossible to unwind umbilical cord formed around child in uterus. It can be diagnosed by conducting ultra sound scanning or hearing the foetal heart sound by expert.

15. PW16 Bushara Beegum is the then Scientific Assistant attached to DCRB, Ernakulam. She examined the scene of occurrence of this case on 28/01/2008 forenooon. The scene of occurrence was a house named Sharon Villa within Maradu Panchayath at Maradu. Presence of blood was detected on the floor of the hall, in the handle and door panel of the kitchen door. She collected cemented soil from the hall and soil sample from the pit outside the house. These items were packed, labelled and handed over to S. I. of Police, Panangad.

16. PW17 is the C.I. of Police who conducted major part of investigation including preparation of scene mahazar, seizure of Crl.Appeal No.520/15 -:19:- material objects, questioning of witnesses, arrest of accused etc.

17. PW18 is the C.I. of Police who conducted the rest of the investigation and laid charge-sheet before Court.

18. PW19 Dr.Junaid Rahman was the RMO at General Hospital, Ernakulam. During that time, Dr.Maheswaran was working as Assistant Surgeon there. He is familiar with the signature of Dr.Maheswaran. Exts.P20 and P21 are the wound certificates of A1 and A2 respectively. PW19 stated that these wound certificates are prepared by Dr.Maheswaran and the signature on them appears to be that of Dr.Maheswaran. In cross- examination, he stated that normally, consent will be obtained before taking blood samples in prescribed form.

19. Learned counsel for appellants put forth the following arguments before us to convince us that prosecution failed to prove the case beyond reasonable doubt and that the trial Court erred in arriving at a finding that accused/appellants herein are guilty for infanticide.

i. A1 was not convicted for offence under Section 120B of IPC. A2 alone cannot be convicted for criminal conspiracy since a person alone cannot conspire.

Crl.Appeal No.520/15

-:20:- ii. Motive is not proved by the prosecution.

iii. Medical evidence adduced by PW14 is not conclusive and it left open the cause of death for interpretations on either side. There is nothing to show that the child was born alive. Benefit of doubt should go to accused in that case. iv. Destruction of evidence is another charge against both accused and it cannot stand as the prosecution version is improbable whereas defence version is highly probable. According to prosecution, foul smell came out of the dead body and hence A1 removed the corpse from the pit in their house to the place where dead body was found. It is improbable as PW4 who resides only one metre away from the house of accused do not have a case that any of them suffered foul smell. That apart, the place where body was found is three kilometres away from the house of accused. According to defence, rotten corpse cannot be carried to and through such thickly populated area. This improbabilize the prosecution case. On the other hand, defence version that A1 disposed the body either by taking small pit or throwing it near to canal is more probable.

Crl.Appeal No.520/15

-:21:- v. Documents are fabricated. In Exts.P5 and P6, time is corrected to suit the alleged arrest and detention. vi. Another piece of cloth is also numbered and produced in Court along with material objects which the prosecution disown. There is nothing to show by using which ligature the alleged offence was carried out.

vii. Appellant never concealed the birth or death of their child. None of the six children of accused are examined or even questioned. Accused were available in their house. Prosecution did not even have a case that they absconded. viii. DNA result is challenged on the ground that the samples were not sent properly. No forwarding note for the same and the items were not sent from Court. There is no receipt from the lab. PW7 stated that she opened the cover at FSL and the returned remnants were given to RGCB. Hence, there is every possibility for manipulation. No assurance of non-fabrication so far as bone and blood allegedly reached RGCB is concerned.

20. In our considered view, some of the arguments raised by the learned counsel for appellants is relevant as they are Crl.Appeal No.520/15 -:22:- useful to test the credibility of prosecution evidence. Prosecution failed to prove the motive for the crime. According to the prosecution, accused killed the new born baby since it is a she baby and out of utter poverty. The said contention cannot be sustained in the light of other evidence available in this case. It is brought in evidence that A2 was unwilling to undergo surgery to stop child bearing. They had six children and two of them are girl children. The parties belong to Christian community. Evidence of near relatives, neighbours, employer of A2 in tailoring shop and landlord of accused would show that they were caring parents and A2 loved her children and cared for them. Rents were paid on regular basis without default. According to her employer, A2 was honest and punctual in her work. PW5 deposed that all previous births of the children of accused were in their home. PW6 who is the mother of A2 stated that A2 never allowed family planning. As already stated, PW4 who is the neighbour deposed that A2 was a caring mother for her children. We only find the prosecution version regarding motive as a wild allegation without any evidence. In the light of this aspect, we have to look into the criminal conspiracy charge. We have gone through the judgment Crl.Appeal No.520/15 -:23:- and records. It can be seen that both A1 and A2 are found guilty for offence under Section 302 read with Section 120B and Section 201 read with Section 120B. But Court below did not prescribe any sentence to A1 for above-said offences. In the case at hand, the same aspect in anyway do not affect the conviction of A2 for criminal conspiracy. It is true that there cannot be a conspiracy without more than one person. But trial Court found both of them guilty and prescribed punishment for only one accused. The primary question for us is whether there is any material to show that there was criminal conspiracy as alleged. In our assessment of evidence, we could not find any evidence which shows that accused/appellants herein entered into criminal conspiracy to commit murder of infant.

21. It is proved beyond doubt through DNA evidence that accused are the parents of deceased child. Arguments raised by the appellants regarding scientific evidence like DNA need to be viewed in the light of other evidence available. It can be seen that the blood of accused were collected by Doctors and bone of the child was also collected and both of them were entrusted to the Investigating Officer. The same was handed over to PW8 and Crl.Appeal No.520/15 -:24:- it is her version that she handed over the items to FSL and RGCB respectively. If we go by the argument of learned counsel regarding manipulation of samples given for test, we need to assume that police manipulated the same in such a way that they 'created' a bone which on examination, would be matching with that of the accused herein. Such wild imagination is out of context in the case on hand. It is common knowledge that it is not possible to make a sample like bone artificially even by scientists so that it should match it with other unknown sample, in DNA test. We agree with the learned Sessions Judge on his finding that the result of DNA test inspires full confidence. It is also proved that accused herein are the biological parents of the dead child. DNA result proves it beyond reasonable doubt. Evidence of PW4 would hint that A2 was pregnant during the relevant time. The same is confirmed by the evidence of PW15 that A2's body was having post delivery symptoms. A2 herself admitted that she delivered a child. Hence there is no doubt about the fact that the infant was the child of A1 and A2.

22. The only question remaining is whether the child was born alive or dead. Defence has a definite case that the child was Crl.Appeal No.520/15 -:25:- born dead and that they buried her in the burial place near Church because of their thinking that without baptism, the church authorities would not permit them to bury her with religious honours. To settle this question, it is necessary to look into the evidence of PW14, the Doctor who conducted autopsy of the infant. Of course, the defence has a case that the child died due to ligature strangulation. At the same time, his evidence need to be assessed in its totality. Of course, the argument that PW14 deposed in his chief examination that the child he examined was about 2½ months old is not correct. It can be seen from his deposition that what PW14 deposed seems to be only a hearsay information. He used the word 'it is stated'. Statements which arise doubt as to cause of death lies elsewhere. During cross- examination, he stated that lung findings were not sufficient to decide whether the child has breathed or dead. He also stated that because of decomposition of body, it was not possible to ascertain whether the baby was born alive or not. Evidence of PW14, in our view, is not enough to conclude that the child was born alive. He stated in chief examination that the death of child was due to ligature strangulation. At the same time, it can also be Crl.Appeal No.520/15 -:26:- seen that he further stated that a black chord was seen tied over the cloth which was tied to the neck of the infant while the corpse was brought to him for post-mortem examination. The same fact is corroborated by the inquest report also. Even if for the sake of argument, Section 106 of Indian Evidence Act, 1872 is made applicable, the explanation offered by the accused is a possible one. They practically admitted that A2 delivered a child. No overt act is alleged against A2 as such. According to prosecution, A1 dug the pit in their compound and buried the child. Thereafter, since foul smell came, the corpse was taken out and left near the church semetry. But there is no evidence to show that A1 buried child in their compound. Indeed, blood was found inside the house of accused. But according to the accused, A2 gave birth to child inside the house itself. Hence finding of blood-stains in their house cannot be considered as evidence against them as such. Prosecution ruled out the possibility of umbilical cord strangulation through the evidence of PW14. But as stated already there is no way to conclude that the child was born alive as alleged. If PW4 is unable to say whether the child was born alive, the theory of ligature strangulation falls to the ground. A Crl.Appeal No.520/15 -:27:- chord might have been used while taking the child for burial in the church compound, which cannot be the reason to attribute ligature strangulation. There is nothing to infer that he had any intention to murder the child as alleged. As already discussed, unless prosecution proves beyond doubt that the child was born alive, it is not possible to invoke Section 302 of IPC. In the case on hand, prosecution failed to prove beyond doubt that the child was born alive nor that appellantd herein caused the death of child.

23. Coming to offence under Section 201 of IPC, if the act of concealment was done with the intention to destroy evidence, the offence would come within the definition of Section 201 of IPC. But in this case it is doubtful whether the appellant had any mens rea to commit offence as alleged. It is settled law that when evidence on record paves path for two different views, the one favourable to the accused must be taken by the Court. In this case, regarding offence under Sections 302 and 201, we extend benefit of doubt to accused. But evidence on record indicates that A1 has committed an offence under Section 318 of IPC. Section 318 of IPC reads:

Crl.Appeal No.520/15

-:28:-

"318. Concealment of birth by secret disposal of dead body.--Whoever, by secretly burying or otherwise disposing of the death body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

It is proved that A1 buried the corpse secretly. Hence, he is liable to be punished under Section 318 of I.P.C.

In the result, the appeal is partly allowed. Conviction and sentence of A1 for offence under Sections 302 and 201 of I.P.C. is hereby set aside. He is found guilty for offence under Section 318 of I.P.C. and sentenced to suffer rigorous imprisonment for two years. Since he has already undergone the imprisonment, he shall be released forthwith, if his presence is not required in connection with any other case. A2 is acquitted of all charges. Her bail bond shall stand cancelled.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                                 N.ANIL KUMAR

Rp               //True Copy//                        JUDGE
                 PS to Judge

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