Indrakunwar vs The State Of Chhattisgarh

REPORTABLE 2023 INSC 934 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1730 OF 2012

INDRAKUNWAR …APPELLANT(S)

Versus

THE STATE OF CHHATTISGARH …RESPONDENT(S)

JUDGMENT

SANJAY KAROL J.,

1. The questions arising for consideration in the present

appeal are:

1) To what extent does the right to privacy shield the

matters concerning the personal life of a woman

accused of committing a crime, particularly when the

prosecution has failed to discharge its duty?

2) To what extent are the rights or duties of the accused to Signature Not Verified Digitally signed by Indu Marwah explain the incriminating circumstances appearing Date: 2023.10.19 16:42:23 IST Reason:

1- [CRIMINAL APPEAL No.1730 OF 2012] against them in a statement under Section 313 of the

Code of Criminal Procedure1?

2. This appeal at the instance of the convict-appellant impugned

a judgment of the High Court of Chhattisgarh passed in Criminal

Appeal No.605 of 2005 dated 20th April 2010, whereby the

judgment of conviction under Section 302 of Indian Penal Code,

18602 and order of sentence dated 4th July 2005 passed by the

Additional Sessions Judge, Baikunthpur, District Koriya

(Chhattisgarh) in Sessions Trial No. 525 of 2004 was upheld.

BACKGROUND OF THE CASE

3. Eschewing unnecessary details, the facts of the case put

forward by the prosecution are:

3.1 The convict-appellant had relations with a co-villager,

namely, Baiga Gond, as a result of which she conceived a

child. She, upon giving birth, allegedly killed this child and

threw the corpse into a dabri (small water body- pond).

3.2 An FIR (First Information Report) dated 14th September

2004, the very day on which the alleged corpse of the newborn

child of the convict-appellant was found, stood registered.

1 Hereinafter referred to as ‘CrPC’ 2 Hereinafter referred to as ‘IPC’ 2- [CRIMINAL APPEAL No.1730 OF 2012] After due investigation, the chargesheet was filed on 13th

October 2004, and eventually, the accused was charged with

committing an offence punishable under Section 302 of the

IPC.

4. The Trial Court, having recorded the statements of various

witnesses, observed that the case is the one resting upon

circumstantial evidence.

4.1 The prosecution declared five of the eight witnesses

examined hostile, including Jai Mangal Singh - PW1, at whose

instance the FIR was registered.

4.2 The other witnesses, for instance, Sumitra – PW4, is

recorded to be “guessing” about the convict-appellant being

pregnant; Kuwarobai – PW8 refused that she ever saw the

convict-appellant pregnant as also that she would use a

‘chadar’ to hide her pregnancy.

4.3 Yet, referring to the statements of PW1, Suraj Kumar

Singh – PW2, Rambaran Singh – PW3, PW4, Ram Jhalako –

PW5, Birhulia – PW6, Rambai – PW7, A.R. Manikpuri (Head

Constable) – PW9 to establish the presence of the body of the

deceased child in ‘Suraj ki dabri’ the statement under Section

3- [CRIMINAL APPEAL No.1730 OF 2012] 313 CrPC of the convict-appellant along with the statement of

Dr. Divya Rani Tigga – PW11 regarding the signs of recent

delivery on the person of the convict-appellant found the

following circumstances to have been proved: -

a) The accused was living in the village alone as her

husband deserted her. Also that, she was pregnant.

b) In the dabri (small pond), the body of a newborn

baby was found on 14th September 2004, and a few days

before that, i.e., 2-3 days, the accused had delivered a

child.

c) The accused did not state anything nor tell anyone

about the delivery.

4.4 Given the above, the Trial Court found the offence

punishable under Section 302 IPC to have been proved beyond

reasonable doubt.

5. The High Court, in the judgment impugned before us, taking

note of the testimony of PW11, who deposed that she had, upon

examination, found the convict-appellant to have delivered a child

and that the deceased had suffered injuries, convicted the

accused. However, the doctor admits that the death of the child

4- [CRIMINAL APPEAL No.1730 OF 2012] being prior to or after the birth remains unmentioned. The same

was noted to be of no consequence as the injuries recorded on the

body of the deceased child established the death to be homicidal

in nature. In conclusion, the High Court held that the conviction

under Section 302 IPC was warranted.

6. It is observed that the Courts below, in holding the accused

guilty, primarily relied on the testimonies of eight independent

witnesses, the testimony of the doctor PW11, and the statement of

the accused under Section 313 Cr.P.C.

OUR VIEW

7. Awarding the punishment of life imprisonment requires due

appreciation of evidence and cannot be awarded mechanically and

in a perfunctory manner. The law requires that the High Court,

must, only after re-appreciation of evidence confirm or overturn

the findings of fact returned by the Trial Court. Recently, this

Court in Geeta Devi v. State of U.P.3 has succinctly dealt with

this issue.

8. The judgment under challenge, which we are constrained to

observe, makes only general and sketchy observations, unlike the

3 2022 SCC OnLine 57 (2-Judge Bench) 5- [CRIMINAL APPEAL No.1730 OF 2012] appreciation of evidence as is required by law, in respect of

testimonies of the witnesses and other evidence. This approach

cannot be appreciated, especially when the conviction rendered is

for a serious offence, that is, Section 302 IPC. In Geeta Devi

(supra), the Court found it fit to remand the matter to the High

Court for consideration afresh, but in the present case, such

course will not be prudent given that this appeal dates back to the

year 2010. Hence, we proceed to examine the evidence on record.

9. The testimony of Jai Mangal Singh – PW1, who was Sarpanch

at the time of the incident, also reveals that he was informed by a

villager about the dead body of a newborn child found in the pond

but did not know to whom it belonged to. Also, he had no

knowledge about the pregnancy of the accused. He did not know

when and by whom the child was thrown. In his cross-

examination, he stated that there were houses belonging to other

people near the dabri where the dead body was found.

Significantly, we find none of them stands examined, testifying to

the presence of the accused near the pond, nor does this witness

testify to such an effect.

10. Suraj Kumar Singh - PW2, who saw the dead body of a child

in his dabri, admits the place to be open from all sides, having 6- [CRIMINAL APPEAL No.1730 OF 2012] access by all. He further deposes that he did not see any woman,

much less the accused, throw the child.

11. Rambaran Singh - PW3, who was informed by PW2 of the

dead body of a child lying in the dabri, admits having no knowledge

as to whom the child belonged to. His testimony reveals the reason

for suspicion and doubting the accused, for she being the only one

without a husband.

12. Smt. Sumitra - PW4, in her testimony, only discloses the

factum of the accused being pregnant. The testimonies of PW5 and

PW6 are also to similar effect.

13. Similarly, though, Smt. Rambai - PW7 denies any knowledge

of the accused being pregnant but only adds that the accused's

body looked as though she had just delivered a child. However, the

latter part is denied by PW8.

14. The testimony of the Investigating Officer - PW10 is only to

the effect of spot verification and conduct of procedural formalities.

15. PW11 is the Medical Officer who examined the child's dead

body and the accused person. She gave her opinion that the child

was delivered prematurely, i.e., prior to 9 months. She also stated

that the child died within 45 to 50 hours of the medical

7- [CRIMINAL APPEAL No.1730 OF 2012] examination, and its death was homicidal in nature. On

examination, she found the accused to be physically weak. She

admitted not to have mentioned as to whether the child had died

before or after birth. She did not even mention if the child belonged

to the accused person.

16. Thus, none of these witnesses could prove, much less beyond

a reasonable doubt, the prosecution case of the accused having

thrown the child in the dabri after delivery or having caused the

death.

17. In her defense, the convict-appellant categorically denied the

accusation of having killed any child, much less the child in

question. She states that Baiga Gond, who had fathered the child

she was carrying, in an endeavor to get rid of the child, forcibly

tried to have her take some medicine. He pushed her into 'Suraj ki

dabri' on her refusal, leading to her miscarriage. The further

defence set up by her was that she had not killed the child and

was being falsely implicated.

18. A perusal of the statement of the convict-appellant gives rise

to the question as to whether she had admitted her guilt? Whether

upon such a statement, the onus on the prosecution stood shifted?

Whether it could be said that the convict-appellant was obliged to 8- [CRIMINAL APPEAL No.1730 OF 2012] disclose her pregnancy, if so, and what became of such child that

she was allegedly carrying?

19. Further, what must be considered is whether the convict-

appellant has no right of privacy of not disclosing the prosecution

or the Court as to what happened to her child which she was

carrying in her womb, particularly when the prosecution failed to

discharge the initial burden and onus of establishing the deceased,

in any manner to be related to the accused?

20. Is not, inherent in a lady the right of confidentiality and

privacy in matters concerning her personal life, of not disclosing

any circumstances, as may be required by law?

LAW ON PRIVACY

21. In searching for answers to the questions above, it is pertinent

for us to intervene when structures of injustice and persecution

deeply entrenched in patriarchy are destructive of constitutional

freedom.4 The right to privacy is the underpinning of human

dignity and is fundamental to the realization of human rights.

22. Right to Privacy is regarded as one of the most crucial human

rights in the contemporary day. In many different countries and

4 Joseph Shine v Union of India 2019 3 SCC 39 (5-Judge Bench) 9- [CRIMINAL APPEAL No.1730 OF 2012] civilizations, privacy is cherished. It is also protected by numerous

international and regional human rights treaties, including the

Universal Declaration of Human Rights, the International

Covenant on Civil and Political Rights, and many more.

23. The importance of this right was underscored by U.S.

Supreme Court as far as the year 19585 by quoting William Pitt,

Earl of Chatham:

“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake, the wind may blow through it, the storms may enter; the rain may enter but the King of England cannot enter, all his forces dare not cross the threshold of the ruined tenement.”

24. In K.S. Puttaswamy (Privacy-9J.) v. Union of India,6 this

Court, speaking through Dr. D.Y. Chandrachud, J. (as the learned

Chief Justice then was) while discussing the essential nature of

privacy observed:

“297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The

5 Miller v United States 357 U.S. 301(1958) 6 (2017) 10 SCC 1 10- [CRIMINAL APPEAL No.1730 OF 2012] autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others.

Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.

298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual

11- [CRIMINAL APPEAL No.1730 OF 2012] to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. …The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual… The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. ... Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.”

(Emphasis supplied)

25. In matters concerning women, this Court has repeatedly

stated that much is left to be desired in securing constructive

equality. We may refer to what Krishna Iyer J. has stated7 :

“The fight is not for woman’s status but for human worth. The claim is not to end inequality of women but to restore universal justice. The bid is not for loaves and fishes for the forsaken gender but for cosmic harmony which never comes till woman comes”.

7 V.R.Krishna Iyer, Law and Life, Vikas Publishing House, New Delhi, 1979, p. 31.

12- [CRIMINAL APPEAL No.1730 OF 2012]

26. We also find this Court to have recognized, in Shakti Vahini

v. Union of India8, that the right to choose a partner is a

fundamental right under Article 19 and 21 of the Constitution of

India. In the celebrated case, Shafin Jahan v. Asokan K.M.9 it

was observed:-

“84. … The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable.”

In S. Khushboo v. Kanniammal10, this Court observed:

“46. ... While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not coextensive.” (Emphasis supplied)

27. The essence of a woman's fundamental right to equality and

privacy, regarding private matters of bodily and psychological

integrity is the ability to make autonomous decisions about her

8 (2018) 7 SCC 192 (3-Judge Bench) 9 (2018) 16 SCC 368 (3-Judge Bench) 10 (2010) 5 SCC 600(3-Judge Bench) 13- [CRIMINAL APPEAL No.1730 OF 2012] own body and reproductive choices. It is entirely within the realm

of privacy of a woman to decide whether or not to bear a child or

abort her pregnancy (within the framework of law).

28. This Court in Suchita Srivastava v. Chandigarh Admn.11,

observed that the statutory right of a woman to consent or not, to

a termination of pregnancy in accordance with the Medical

Termination of Pregnancy Act, 1971 is deduced from a woman’s

right to privacy, dignity and bodily integrity.

29. In X v. The Principal Secretary, Health and Family

Welfare Department, Government of NCT of Delhi and Ors.12,

this Court observed that the right of a woman to become pregnant

is not married to her marital status. It is a choice irrespective

thereof. In case the pregnancy is warranted, it is equally shared by

both partners. However, in case of an unwanted or incidental

pregnancy, the burden invariably falls on the pregnant woman

affecting her mental and physical health. It was held that it is the

woman’s decision alone to undergo medical termination of

pregnancy particularly when it is her mental or physical health

that is in question.

11

(2009) 9 SCC 1 (3-Judge Bench) 12 2022 SCCOnLine SC 905 (3-Judge Bench) 14- [CRIMINAL APPEAL No.1730 OF 2012]

30. Recently, this Court in XYZ v. The State of Gujarat & Ors.13

in the context of abortion reiterated that the right of every woman

to make reproductive decisions, including the decision to

terminate the pregnancy, is within her competence and authority.

The right of every woman to make reproductive choices without

undue interference from the state is central to the idea of human

dignity. Deprivation of access to reproductive healthcare or

emotional and physical well-being also injures the dignity of

women.

31. The above discussion was only to point out that the right to

privacy is inviolable. Unfortunately, the view taken and the

language adopted by both the Courts below lays to waste such a

right inherent in the convict-appellant. It is apparent that the guilt

has been placed on her without any solid foundation thereto since

no relationship of any nature whatsoever could be established

between her and the deceased child discovered in the dabri. The

conclusion drawn is simply on the basis that the convict-appellant

was a woman living alone and had been pregnant (as admitted in

the statement under 313 CrPC). This, in the Court's view, was in

itself suspect since she had been ‘deserted’ by her husband.

13

Criminal Appeal No. /2023 (@ Slp (Crl.) Dy. No. 33790/2023) 15- [CRIMINAL APPEAL No.1730 OF 2012]

32. Such a view being taken, i.e., thrusting upon a woman the

guilt of having killed a child without any proper evidence, simply

because she was living alone in the village, thereby connecting with

one another two unrelated aspects; reinforces the cultural

stereotypes and gendered identities which this Court has explicitly

warned against.14

33. Keeping in view the understanding of the principles of privacy

and the propositions of law in regard thereto, we now travel to

what, by law, may be required of the convict-appellant in her

statement under Section 313 Cr.P.C.

34. A perusal of various judgments15 rendered by this Court

reveals the following principles, as evolved over time when

considering such statements.

14 In striking down Section 497 IPC, the Constitution Bench in Joseph Shine v Union of India (2019) 3 SCC 39 has engaged in an extensive discussion In regard to stereotypes and has found such stereotypes to be offending Article 14 of the Constitution of India. 15 Premchand v. State of Maharashtra (2023) 5 SCC 522 (2-Judge Bench); Jai Dev v. State of Punjab [AIR 1963 SC 612]; Asraf Ali v. State of Assam (2008) 16 SCC 328 (2-Judge Bench); Inspector of Customs v. Yashpal (2009) 4 SCC 769 (3-Judge Bench); Fainul Khan v. State of Jharkhand (2019) 9 SCC 549 (2-Judge Bench); Mohd. Firoz v. State of M.P. (2022) 7 SCC 443 (3-Judge Bench); Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC 467 (2-Judge Bench; Dehal Singh v. State of H.P. (2010) 9 SCC 85 (2-Judge Bench); Brajendrasingh v. State of M.P. (2012) 4 SCC 289 (2-Judge Bench); Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 (3-Judge Bench); Hate Singh Bhagat Singh v. State of Madhya Pradesh [1951 SCC 1060]; Shamu Balu Chaugule v. State of Maharashtra (1976) 1 SCC 438; Paul v. State of Kerala (2020) 3 SCC 115 (2-Judge Bench); Kalicharan v. State of U.P. (2023) 2 SCC 583 (2-Judge Bench); Nasib Singh v. State of Punjab (2022) 2 SCC 89 (3-Judge Bench); Jai Prakash Tiwari v. State of Madhya Pradesh 2022 SCC OnLine SC 966 (3-Judge Bench); Satbir Singh v. State of Haryana (2021) 6 SCC 1 (2-Judge Bench); Bable v. State of Chhattisgarh (2012) 11 SCC 181 (2-Judge Bench); and Selvi v. State of Karnataka (2010) 7 SCC 263 (3-Judge Bench).

16- [CRIMINAL APPEAL No.1730 OF 2012] 34.1 The object, evident from the Section itself, is to enable

the accused to themselves explain any circumstances

appearing in the evidence against them.

34.2 The intent is to establish a dialogue between the Court

and the accused. This process benefits the accused and aids

the Court in arriving at the final verdict.

34.3 The process enshrined is not a matter of procedural

formality but is based on the cardinal principle of natural

justice, i.e., audi alterum partem.

34.4 The ultimate test when concerned with the compliance

of the Section is to enquire and ensure whether the accused

got the opportunity to say his piece.

34.5 In such a statement, the accused may or may not admit

involvement or any incriminating circumstance or may even

offer an alternative version of events or interpretation. The

accused may not be put to prejudice by any omission or

inadequate questioning.

34.6 The right to remain silent or any answer to a question

which may be false shall not be used to his detriment, being

the sole reason.

17- [CRIMINAL APPEAL No.1730 OF 2012] 34.7 This statement cannot form the sole basis of conviction

and is neither a substantive nor a substitute piece of evidence.

It does not discharge but reduces the prosecution's burden of

leading evidence to prove its case. They are to be used to

examine the veracity of the prosecution's case.

34.8 This statement is to be read as a whole. One part cannot

be read in isolation.

34.9 Such a statement, as not on oath, does not qualify as a

piece of evidence under Section 3 of the Indian Evidence Act,

1872; however, the inculpatory aspect as may be borne from

the statement may be used to lend credence to the case of the

prosecution.

34.10 The circumstances not put to the accused while

rendering his statement under the Section are to be excluded

from consideration as no opportunity has been afforded to him

to explain them.

34.11 The Court is obligated to put, in the form of questions,

all incriminating circumstances to the accused so as to give

him an opportunity to articulate his defence. The defence so

articulated must be carefully scrutinized and considered.

18- [CRIMINAL APPEAL No.1730 OF 2012] 34.12 Non-compliance with the Section may cause prejudice

to the accused and may impede the process of arriving at a fair

decision.

ANSWERS TO THE QUESTIONS

35. In light of the principles listed above, what we must consider

is whether, in explaining the purported incriminating

circumstance against her, the convict-appellant ought to have

disclosed, over and above denial of any relationship with the

deceased child, the specifics of her miscarriage and its aftermath;

particularly when the prosecution has failed to discharge its

burden of establishing such relationship between the deceased

and the convict -appellant.

36. It is established that negative inferences cannot be drawn for

a question or incriminating circumstance not put to an accused

while making a statement under Section 313 Cr.P.C. Her

statement, nowhere reflects an answer to a question concerning

the particulars of the child that she was admittedly carrying but

denied that the deceased was not the one recovered from the dabri.

Although there is a requirement by law to disclose the aspects

required to adjudicate in a criminal matter, such duty cannot

19- [CRIMINAL APPEAL No.1730 OF 2012] unreasonably and unwarrantedly step over the fundamental right

of privacy.

37. Before examining this case from the lens of circumstantial

evidence, it would be apposite to refer to the position in law.

38. In Shailendra Rajdev Pasvan v. State of Gujarat16 this

Court observed that the courts ought to have a conscientious

approach in a case based on circumstantial evidence, and

conviction ought to be recorded only in cases where all the links of

the chain are complete, pointing only to the guilt of the accused

and none else, also eliminating the element of his innocence. Each

link, unless connected together to form a chain, may suggest

suspicion, but the same, in itself, cannot take the place of proof

and will not be sufficient to warrant the conviction of the accused.

39. In Munikrishna v. State17 this Court, while following the

parameters laid down in Hanumant Govind Nargundkar v. State

of Madhya Pradesh18 and Sharad Birdhichand Sarda19, observed

that in cases based on circumstantial evidence, heavy onus and

16 (2020) 14 SCC 750 (3-Judge Bench) 17 2022 SCC OnLine SC 1449 (3-Judge Bench) 18 (1952) 2 SCC 71 (3 Judge Bench) 19 (1984) 4 SCC 116 (3-Judge Bench) 20- [CRIMINAL APPEAL No.1730 OF 2012] duty is cast upon the prosecution to prove its case beyond

reasonable doubt.

40. In Sharad Birdhichand Sarda (supra), while discussing the

effect of non-explanation, this Court observed that the absence of

explanation or a false explanation will amount to an additional link

to complete the chain provided the following essential conditions

must be satisfied, that is to say, various links in the chain of

evidence led by the prosecution have been satisfactorily proved; it

should only point to the guilt of the accused with reasonable

definiteness, and proximity of the circumstance with the time and

situation.

41. It is a matter of record that none of the witnesses has seen

the convict-appellant throwing the deceased child into the dabri;

as hitherto observed, no conclusive proof, of any nature, of

relationship had been put forth by the prosecution; no evidence

has been led to cast doubt upon the version of the convict. The

statement of the doctor is silent on the death of the deceased

having occurred prior to or after birth, although in examination in

chief, the doctor has deposed that the death of the deceased child

was homicidal in nature; however, in the cross-examination, it is

admitted that such fact does not form part of the record, thereby

21- [CRIMINAL APPEAL No.1730 OF 2012] calling into question the conclusion itself as it is a vital piece of

information that has been omitted.

42. Having considered the gaps mentioned above in the

prosecution case, we cannot agree with the learned Courts below

that the circumstances conclusively point to the guilt of the

convict-appellant, Indrakunwar.

43. Given the foregoing discussion, we find the conviction

recorded against the convict-appellant to be entirely based on mere

presumption, with the actual evidence on record failing to

establish the prosecution case much less beyond reasonable

doubt. We are constrained to observe that the High Court has

confirmed the view of the Trial Court awarding life imprisonment

without supplying any cogent reasons therefor.

44. In that view of the matter, the conviction returned by the Trial

Court in Session Trial No.52 of 2004 and affirmed by the High

Court in Criminal Appeal No.605 of 2005 is quashed and set aside.

The convict-appellant is acquitted of all charges and, if in jail in

connection with the instant lis, is set at liberty forthwith. Her bail

bonds stand discharged.

22- [CRIMINAL APPEAL No.1730 OF 2012]

45. The questions raised in the instant case are answered as

above.

46. The appeal is allowed in the aforesaid terms.

47. Pending Interlocutory application(s), if any, shall stand

disposed of.

……………………J. (ABHAY S. OKA)

…..……………….J. (SANJAY KAROL)

Date: 19 October, 2023;

Place: New Delhi.

23- [CRIMINAL APPEAL No.1730 OF 2012]