(Cr.A.No.1350/1997) 2025:CGHC:20636-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1350 of 1997 {Arising out of judgment dated 2-7-1997 in Sessions Trial No.160/1996 of the 5th Additional Sessions Judge, Durg} Smt. Jayanti Bai, D/o Dularuaram, Meshram, aged 35 years, R/o Village Parsoda, P.S. Balod, Disttt. Durg (M.P.) (now C.G.) ... Appellant versus State of M.P. (now State of C.G.) ... Respondent For Appellant : Ms. Aditi Singhvi, Advocate. For Respondent/State : Mr. H.A.P.S. Bhatia, Panel Lawyer. Amicus Curiae : Mr. Rishi Rahul Soni, Advocate. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment on Board (06/05/2025) Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 2-7-1997 passed by the 5th Additional Sessions Judge, Durg in Sessions Trial No.160/1996, by which SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.05.13 10:32:39 +0530 (Cr.A.No.1350/1997) the sole appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and further sentenced to pay a fine of 1,000/-, in default of ₹ payment of fine amount to further undergo additional simple imprisonment for six months. 2. Case of the prosecution, in short, is that the appellant, who is a deserted woman, gave birth to a male child on 13-12-1995 at 11 a.m. in her house and has caused the death of her newly born child by crushing the child by her feet. Marg intimation was lodged on the same day vide Ex.P-1 and dehati nalishi was recorded vide Ex.P-8. Numbered marg intimation was recorded vide Ex.P-14 and FIR was registered vide Ex.P-15. Spot map was prepared by the Patwari vide Ex.P-18. Inquest over the dead body of the deceased infant was conducted vide Ex.P-3 and dead body was subjected to postmortem which was conducted by Dr. Anil Agrawal (PW-5) vide Ex.P-12 and cause of death was stated to be due to shock neurogenic & haemorrhagic and death was homicidal in nature. Dr. Anil Agrawal (PW-5) has also performed hydrostatic test in which he has found the result to be positive, as the child has taken breath before death and he referred the appellant to Dr. (Mrs.) Alpana Agrawal (PW-4) for medical examination. The (Cr.A.No.1350/1997) appellant was medically examined by Dr. (Mrs.) Alpana Agrawal (PW-4) vide Ex.P-11 and gave opinion that she has delivered a baby within 48 hours at the time of examination and consequently, the appellant was arrested and put to trial. Seized articles were sent for chemical examination to the Regional FSL, Raipur and FSL report was prepared vide Ex.P-19 according to which blood was found on soil, petticoat & lungi of the accused/appellant marked as Articles A, C & D, respectively. 3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Judicial Magistrate First Class, Balod, and the case was committed to the Court of Sessions, Durg from where the learned 5th Additional Sessions Judge, Durg received the case on transfer for trial. 4. The accused / appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution has examined as many as ten witnesses and exhibited 19 documents. The defence, in support of its case, has examined four witnesses and exhibited six documents Exs.D-1 to D-6. Page 4 of 15 (Cr.A.No.1350/1997) The accused / appellant was examined under Section 313 of the CrPC in which she denied the circumstances appearing against her, pleaded innocence and false implication in the crime in question. 5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant for offence under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment, which is sought to be challenged by her by way of this criminal appeal under Section 374(2) of the CrPC. 6. Ms. Aditi Singhvi, learned counsel appearing for the appellant, would submit as under: - 1. The prosecution has failed to establish that the appellant is the biological mother of the deceased infant and further, the prosecution could not establish that the deceased infant was born alive and therefore the prosecution could not prove that the death of the infant was homicidal in nature. 2. Even otherwise, there is no evidence that the appellant is the author of the crime, therefore, she is entitled for acquittal on the basis of benefit of doubt. Page 5 of 15 (Cr.A.No.1350/1997) 7. Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing for the State/respondent, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt. He would further submit that in view of the evidence available on record, the trial Court is absolutely justified in convicting the appellant under Section 302 of the IPC. He would also submit that the infant (now deceased) has born alive stands proved by the statement of Dr. Anil Agrawal (PW-5), who has conducted postmortem and hydrostatic test and further corroborated by the statements of Radha Bai (PW- 2) & Keshar Bai (PW-7). Furthermore, as per the statement of Dr. Anil Agrawal (PW-5), three fractures were found on the skull of the infant i.e. occipital, parietal and frontal bones and as such, it has been proved that the infant was born alive. Moreover, as per the statement of Dr. (Mrs.) Alpana Agrawal (PW-4), who has medically examined the appellant, the appellant has delivered a baby within 48 hours at the time of examination. Therefore, it is duly established that the appellant is the author of the crime and as such, the appeal deserves to be dismissed. Page 6 of 15 (Cr.A.No.1350/1997) 8. Mr. Rishi Rahul Soni, learned amicus curiae, would submit that the prosecution has miserably failed to prove that the appellant is the biological mother of the infant deceased and that he was born alive. He would further submit that hydrostatic test is not the test on the basis of which it can be established that the child has born alive and it would be risky to rely upon the said test to hold that the deceased infant has born alive. He would rely upon the decision of the Gauhati High Court in the matter of Miss Lulano Lotha v. The State of Nagaland1 and that of Kerala High Court in the matter of Chellamma v. State of Kerala2 to submit that there should not be any automatic presumption that when an illegitimate child is found dead, it must have been killed by its mother and there is no legal liability on the part of the mother of an illegitimate child to prove that the child was not a still-born one. He would further rely upon the decision of the Supreme Court in the matter of Indrakunwar v. State of Chhattisgarh3 to submit that the appellant convict has a 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. As such, the appeal deserves to be allowed and the appellant is liable to be 1 1980 SCC OnLine Gau 23 2 AIR 1964 Ker 241 3 2023 SCC OnLine SC 1364 (Cr.A.No.1350/1997) acquitted, as the prosecution has not brought home the offence against the appellant beyond reasonable doubt. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record carefully and thoroughly as well. 10. In order to decide the correctness of the judgment of conviction and order of sentence passed by the trial Court convicting the appellant under Section 302 of the IPC, the following questions arise for consideration: - 1. Whether the appellant is the biological mother of the deceased infant? 2. Whether the infant was born alive? 3. If the infant was born alive, whether the death of the infant has been proved by the prosecution to be homicidal in nature? 4. If question No.3 is answered in affirmative, whether the appellant is the author of the crime? Answer to Question No.1 11. It is the case of the prosecution that the deceased infant was the natural child of the appellant. Therefore, it was incumbent upon the prosecution to prove that the infant deceased was (Cr.A.No.1350/1997) biological child of the appellant to further hold that the infant child was born alive and his death was homicidal in nature and that the appellant is the author of the crime, but the prosecution evidence available on record i.e. oral and documentary, is not sufficient to hold that the appellant is the biological mother of the deceased infant, though there is MLC report Ex.P-11 of Dr. (Mrs.) Alpana Agrawal (PW-4) available on record to establish that the appellant had given birth to a baby within 48 hours at the time of examination. However, merely on the basis of the statement of Dr. (Mrs.) Alpana Agrawal (PW-4), it cannot be concluded that the appellant was the biological mother of the deceased infant in absence of DNA profile test to establish the relationship between the appellant and the deceased infant. Unfortunately, the trial Court has also not recorded any specific finding that the appellant is the biological mother of the deceased infant. Furthermore, the Supreme Court in Indrakunwar (supra) has held that there must be solid foundation to prove the relationship between the convict-appellant therein and the deceased child found in the dabri. Page 9 of 15 (Cr.A.No.1350/1997) Answer to Question No.2 12. Though it has not been established that the appellant is the biological mother of the deceased, yet the trial Court has held that the infant was born alive relying upon the statement of Dr. Anil Agrawal (PW-5), who has conducted hydrostatic test, which has been found positive. 13. In Modi’s Medical Jurisprudence and Toxicology, 25th Edition, page 842, Hydrostatic Test has been stated as under: - “Hydrostatic Test.—As long as the limitations are recognised, this is a helpful test and should be performed. It is based on the principle that the specific gravity of the unrespired lungs varies from 1.04 to 1.05, and that of the respired lungs is 0.94, owing to their volume being increased due to the presence of air. The foetal lungs, therefore, sink in water, and those, that have breathed, float.” However, two objections have been raised against the hydrostatic test which are as follows: - “Objections.—The two following objections have been raised against the hydrostatic test: (i) the expanded lungs may sink from disease or from atelectasis. (ii) the unexpanded lungs may float from the presence of putrefactive gases from artificial inflation.” (Cr.A.No.1350/1997) 14. Similarly, the Principles and Practice of Medical Jurisprudence by the Late Alfred Swaine Taylor, Fifth Edition, page 276-278, states regarding hydrostatic test as follows: - “8. That the hydrostatic test can only show whether a child has or has not breathed—it does not enable us to determine whether a child has been born living or dead. 28. That the hydrostatic test is not applicable to determine the fact of respiration or non-respiration in all cases of alleged child-murder, but that, with ordinary precautions, it may be safely employed in the majority of such cases. 29. That a child may breathe before, during, or after birth, but the hydrostatic test will not enable us to slay, in the greater number of cases, at which of these periods the act of respiration was performed.” 15. However, according to the Modi’s Medical Jurisprudence and Toxicology (page 855), there is no consensus as to the use of the hydrostatic test for diagnosis of live birth at textbooks. Similarly, as per the Principles and Practice of Medical Jurisprudence (pages 276 & 278), the hydrostatic test also does not enable the doctor to determine whether a child has been born living or dead and breathing is a sign of life, and not necessarily of live-birth. Therefore, it would be unsafe, at this stage, to rely upon the hydrostatic test in order to hold that the child has born alive. Page 11 of 15 (Cr.A.No.1350/1997) 16. In Miss Lulano Lotha (supra), the Gauhati High Court has clearly held that the hydrostatic test i.e. floating of lungs in pieces can by no means be a sure test of a child having been born alive. 17. Similarly, the Madras High Court in the matter of In re Veeral alias Kanal4 referring to hydrostatic test it has been pointed out that microscopic examination of the lung will be necessary before an opinion can be expressed. It has further been pointed out that the various other tests which are prescribed by the medical science to determine whether the child was born alive or still-born, which were not performed in that case. 18. In the instant case, apart from hydrostatic test which was performed by Dr. Anil Agrawal (PW-5), no other tests, though available, were not conducted to establish that the infant child was born alive. Though, Keshar Bai (PW-7) claims to be eyewitness that she has seen the appellant delivering a baby, but in view of the fact that she had inimical relations with the appellant, as they both were not in talking terms, the chances of false implication cannot be ruled out as property dispute relating to land was outstanding between them on the date and 4 1969 SCC OnLine Mad 186 (Cr.A.No.1350/1997) time of offence. As such, the prosecution has miserably failed to establish that the deceased infant had born alive. Answer to Question No.3 19. In an offence under Section 302 of the IPC, the prosecution must first establish the homicidal death of the deceased as the primary fact (see Chandrapal v. State of Chhattisgarh5) and that the death of the infant was homicidal in nature which is sine qua non for establishing the charge under Section 302 of the IPC, as such, in the present case, the question of proving the charge under Section 302 of the IPC does not arise for consideration, as the prosecution has failed to establish that the infant child was born alive, in view of the finding arrived herein-above by us in the preceding paragraph. Answer to Question No.4 20. Since the prosecution has failed to establish that the appellant is the biological mother of the deceased infant and further failed to establish that the infant was born alive, the death of the infant cannot be held to be homicidal in nature and consequently, the last question (question No.4) as to author of the crime does not arise for consideration. However, it has been contended by Mr. Rishi Rahul Soni, learned amicus curiae, that in this regard the Supreme Court in Indrakunwar 5 2022 SCC OnLine SC 705 (Cr.A.No.1350/1997) (supra), in similar fact-situation, framed two questions for consideration which are as follows: - “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 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?” Their Lordships of the Supreme Court while answering the aforesaid questions held as under: - “32. 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. 33. Such a view being taken, i.e., thrusting upon a woman the guilt of having killed a child without any (Cr.A.No.1350/1997) 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.6 21. For the foregoing reasons, the prosecution has failed to establish that the appellant was biological mother of the deceased newly born child and the infant child was born alive and was breathing after birth, and death of the infant child was homicidal in nature and the accused is the author of the crime and furthermore, the appellant’s right to privacy is inviolable. In that view of the matter, the appellant is entitled for acquittal on the principle of benefit of doubt. 22. In the result, the appeal is allowed. Conviction and sentences imposed upon the appellant under Section 302 of the IPC are set aside. The appellant is already on bail, she need not surrender to her bail bonds and her bail bonds shall remain in operation for a period of six months in view of the provisions contained in Section 437-A of the CrPC. 6 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. Page 15 of 15 (Cr.A.No.1350/1997) 23.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Soma