Smt. Kalloo Bai, D/O. Badri Prasad. Vs. State of Madhya Pradesh. - Court Judgment

Excerpt:
sub-heading 1904.10 or 2108.00: [s.h.kapadia & aftab alam,jj] cheetos masala balls, cheetos cheese puff and cheetos x & o- classification - held, rule of interpretation is if a specific entry covers a product then one need not go into residuary heading. since subject product made from cereals in grounded form, therefore not falling in sub-heading 19.04. hence, covered by residuary entry sub-heading 2108. .....kalloobai gave birth to an illegal infant and conceal the birth of that infant. co-accused badri prasad had left that infant near a nallah due to which death of infant occurred. it is alleged that the body of infant was buried near the nallah but this fact was came to the knowledge of villagers and they informed the police. on basis of this information, a marg intimation ex.p/4 was recorded at police chouki kalda. during investigation dead body of infant was excavated by co-accused badri prasad and inquest panchnama ex.p/10 was prepared. dead body was sent for postmortem.3. dr. g.p. singh (pw1) conducted the autopsy on the dead body of the infant and opined that he was born alive and died due to haemorrhage through placenta, he prepared the postmortem report ex.p/1. appellant.....

Judgment:
1. The appellant has filed this appeal against judgment dated 11.7.1995 passed in S.T. No. 29/1993 by the Court of Additional Sessions Judge, Panna by which appellant Kalloo Bai has been convicted under Section 318 of the Indian Penal Code and sentenced to undergo six months rigorous imprisonment.

2. The prosecution case in short was that marriage of appellant Kalloo Bai was solemnized many years before this incident but since 5-6 years she did not go to her in-laws house and had been living with her father Badri Prasad. In the month of December 1992, appellant Kalloobai gave birth to an illegal infant and conceal the birth of that infant. Co-accused Badri Prasad had left that infant near a Nallah due to which death of infant occurred. It is alleged that the body of infant was buried near the Nallah but this fact was came to the knowledge of villagers and they informed the police. On basis of this information, a Marg Intimation Ex.P/4 was recorded at Police Chouki Kalda. During investigation dead body of infant was excavated by co-accused Badri Prasad and inquest Panchnama Ex.P/10 was prepared. Dead body was sent for postmortem.

3. Dr. G.P. Singh (PW1) conducted the autopsy on the dead body of the infant and opined that he was born alive and died due to haemorrhage through placenta, he prepared the Postmortem report Ex.P/1. Appellant Kalloobai was arrested and medically examined by Dr. Pushpa Dwivedi (PW3), who opined that appellant delivered a child within seven days. Her medical report is Ex.P/7. Shri R.K. Mishra (PW12), Investigating Officer, during investigation has prepared the spot map Ex.P/22 and seized one Favda (spade) at the instance of co-accused Badri Prasad. He also seized a Saree and Saya (petticoat) from the possession of appellant Kalloobai vide seizure memo Ex.P/13.

4. After completing the investigation, appellant and co-accused Badri Prasad were charge- sheeted of the charges under Section 316 read with Section 201 of IPC.

5. Appellant denied the charges and pleaded that she has been falsely implicated.

6. On trial, learned Trial Court after considering the evidence on record, acquitted co- accused Badri Prasad to the charges levelled against him. Appellant Kalloobai has also been acquitted from the charges under Section 316 of IPC but instead of that she has been convicted under Section 318 of IPC and sentenced as mentioned herein above.

7. Learned counsel for the appellant submitted that since no separate charge under Section 318 of IPC was framed, therefore, conviction of appellant under Section 318 of IPC is illegal. He also submitted that prosecution has failed to prove that appellant was the person who secretly buried the body of the child.

9. On the other hand, learned Government Advocate supported the judgment and finding of the trial Court.

10. I perused the evidence on record and impugned judgment passed by the trial Court. It is true that the trial Court failed to frame a separate charge under Section 318 of IPC against the appellant. Offence under Section 318 of IPC is an independent offence. In this way the appellant deprived to defend herself therefore prejudice cause to her.

11. I perused the statement of witnesses like Ramsajeevan (PW7), Ramlal (PW8), Ramesh Kumar (PW9), Dhan Singh (PW10) and Bakhatlal (PW11). All witnesses were turned hostile and nothing found in their cross-examination to connect the appellant, to the offence under Section 318 of IPC.

12. Panch witness Nanhe Singh (PW5) and Narayan Singh (PW6) specifically stated that they only saw the dead body of child but they did not know who buried that child.

13. The finding recorded by the trial Court is self contradictory, like in judgment para No. 12 trial Court recorded the finding that there is nothing on record to prove that appellant Kalloobai buried the alleged child. But in para No. 19 eventually he arrived to conclusion that accused/appellant secretly disposed of her child and that too without any evidence on record.

14. Considering the above contradictory finding of trial Court, keeping in view that none of the witnesses stated that appellant Kallobai herself buried or disposed of alleged child.

15. In my considered opinion, judgment and finding of trial Court is erroneous and liable to set aside. Therefore, appeal is allowed, conviction and sentence of appellant is hereby set aside. She is acquitted to charges under Section 318 of IPC. She is on bail, her bail bond stands discharged.