Madhya Pradesh High Court
Ghansi @ Savitri Bai vs State Of Madhya Pradesh on 5 November, 1997
Equivalent citations: I(1998)DMC271
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT D.P.S. Chauhan, J.
1. These are the two appeals filed on behalf of the same accused person. Criminal Appeal No. 148 of 1988 is filed through Legal Aid and Advice Board and the other Criminal Appeal No. 236 of 1988 is from the Jail. Though the two appeals are not maintainable against the same order of conviction by the same accused person but since they are filed and have been admitted, we propose to dispose of them together.
2. The appellant Ghansi @ Savitri Bai who was prosecuted for committing the offence of infanticide. As per the prosecution allegations, she killed her newly born baby and was tried for committing offence punishable under Sections 302/201 Indian Penal Code in Sessions Trial No. 30/86 wherein by judgment and order dated 16.12.1987, she was convicted under Section 302,1.P.C. and was sentenced to life imprisonment. The present appeal is out of this conviction.
3. The appellant was married to Munna (PW2) an year earlier and after one year of her marriage she ran away from her matrimonial house and was living with her parents. Prosecution alleged that she was having illicit relationship with one Beniram Gond (PW 3) and from him, she gave birth to the child on 17.11.1985 and thereafter, on 18.11.1985 she strangulated the child. The parents of the appellant told everybody about the death of the child so born, as she died on account of suffocation and was not taking milk. 0n l9.11.1985 at the Police Station Lakhanwada a panchanama was made and the Marg No. 28/85 was recorded. Body of the child was sent for post-mortem examination which was conducted by Dr. D.S. Sengar (PW 1) who gave opinion as per post-mortem report Ex. P-l that the cause of death was asphyxia due to suffocation.
4. In the present case, the prosecution examined as many as 6 witnesses.
5. There is no eye witness of the incident. The only material on the record is regarding the circumstantial evidence. The question for consideration is as to how far the circumstances as alleged by the prosecution support the prosecution version.
6. Heard the learned Counsel for the appellant and the learned State Counsel.
7. The learned Counsel for the appellant submitted that it is not a case of infanticide and the prosecution has miserably failed to establish the guilt of the appellant beyond reasonable doubt.
8. PW 2 Munna is the husband of the appellant who has stated regarding his marriage with the appellant and he has also stated that after one year of his marriage, she deserted him.
9. PW 3 Beniram is the person who, according to the prosecution, was the paramour of the appellant but he, in his statement, has denied that he was having any relationship with the appellant and no birth of any child took place with his union with the appellant. PW 4 Jethulal, a Police Constable, is a formal witness.
10. The entire case of the prosecution hinges on the evidence of Gulzar @ Bhuvanlal, who was examined as PW 5 and the prosecution has relied on his statement for proving the extra judicial confession said to have been made by the appellant. In his examination-in-chief, this witness has stated regarding the birth of the child and also regarding the death of the child but has stated that the child died after two or three days after the birth. This witness states mat after the child died, three persons viz. Mukaddam, Bhura and Gulzar called the appellant at the house of Mukaddam and asked her as to how it happened. Then she told that she strangulated the child and also pressed her chest and killed her, and he further stated that when he asked for the cause of causing death of the child, then, she told them that one Chander Singh told her that if she kills the child, then he will marry her.
11. The above statement firstly contradicts the story of the prosecution. The prosecution case was not that the appellant was having any relationship with one Chander Singh. Rather the case was that the appellant was having illicit relationship with one Beniram (PW 3). The prosecution has not explained as to how Chander Singh was interested and why Chander Singh was not examined. Withholding of the witness itself exhibits some foul play at some end, to which the prosecution was a supporting party.
12. So far a s the question of extra judicial confession is concerned, it is worth noting that the witness Gulzar (PW 5) who is the witness of the Panchnama (Ex. P-3) which was recorded subsequent to the alleged making of the extra judicial confession by the appellant, did not make any mention about it at that time and this fact by itself makes the theory of the extra judicial confession doubtful. Further, the prosecution has not examined Mukaddam and Bhura who were the persons before whom the alleged extra judicial confession was made by the appellant. Further his statement does not disclose that the appellant herself volunteered the statement to them but these persons by themselves got interested in the matter that Gulzar and Bhura called her to the house of the Mukaddam.
13. It is established on the record that so far as the relationship between the husband Munna and the appellant is concerned, the relationship persisted that of husband and wife and it is neither the case of the prosecution that their relations were strained nor it is the case that there took place any divorce between them. Whatever would have been the position, the status of the newly born child was that the child was outcome from her husband. Here, the prosecution has not established that the child was outcome of the union of the person with the appellant, as has been alleged. "
14. Apart from every thing, the two circumstances are material : that the appellant is the mother. If she had any intention, then she would not have waited for 24 hours after the birth of the child for strangulating her. If such an intention would have been there, then the action would have been spontaneous. Secondly, me position of the mother is such a sacred one that even for an illegitimate child, she would have sacrificed her intention and would not comedown to such action unless extraordinary circumstance persisted which the prosecution has failed to establish in the present case.
15. Medical evidence of the Doctor i.e., Dr. D.S. Sengar (PW 1) also does not conclusively establish that it was a case of strangulation. The Doctor had found contusion and for contusion, there is no explanation from the side of the prosecution. The Doctor has also opined that such a death could be on account of pneumonia. It has also come in the evidence mat the stomach of the child was having only water and no milk, which fact cannot rule out the possibility of the reason that the child was not taking milk, may be on account of Pneumonia.
16. In the cumulative circumstances of the present case, we are of the opinion that the prosecution has failed to establish the guilt of me appellant beyond reasonable doubt and it is a case where the appellant is entitled for being given the benefit of doubt.
17. In view of the above, the appeal is allowed. The appellant is acquitted of the charge u/Sec. 302,1PC, as she has been given me benefit of doubt. The judgment and order of conviction and sentence as passed by the Trial Court against the appellant is set aside. The appellant is in jail. She be released forthwith unless wanted in some other crime.