Kodu @ Mohammad Ali v. State Of Chhattisgarh Through Station House Officer, Police Station Ramanujganj, Distt

Mr. C. J. K. Rao, Advocate Mr. Ankur Kashyap, Dy. G. A. (Hon’ble Shri Justice Sachin Singh Rajput) Judgment on Board 25/03/2025

1. This is an appeal preferred by the accused/appellants under Section 374 (2) of the Code of Criminal Procedure against the judgment impugned dated 10.03.2005 passed by learned Additional Sessions Judge (Link Court) Ramanujganj, District Surguja in Sessions Trial No. 358/97 acquitting appellant- Nanku (Deceased) of the charge under Sections 376 (1), 302, 201 IPC and appellant Kodu of the charge under Section 302, 201 IPC, but holding them guilty under Sections 318 of the Indian Penal Code and imposing the sentence of 2 years RI with fine of Rs.10,000/-each plus default 2 stipulations. Initially two accused persons namely Nanku @ Istak Ahamad and Kodu @ Mohammad Ali were put to trial but during pendency of appeal appellant Nanku had passed away and his appeal stood abated.

2. Case of the prosecution in brief is that the complainant (PW-3) lived with her parents and worked as a labourer and she was not married. About 10 months before the incident, she had gone to the accused/appellant- Nanku’s (Deceased) house to get food. It was afternoon, the accused/deceased Nanku was alone. He forcefully raped complainant, due to which she became pregnant. When the complainant asked the accused to marry her, the accused said that he would do it later, let the child be born, due to which she did not inform anyone about the incident. She told people that she has got stone disease. She had pain before the child was born and she went to the accused’s house at 7 am. Her child was born alive on 17.06.1997 whose delivery was assisted by the wife of the accused. After the child was born, the accused Nanku (Deceased) and Kodu killed the child. Then they took the dead body somewhere and the victim became unconscious. The accused Nanku (deceased) told the complainant not to tell anyone that he had met the watchman. Later, the children of the village raised an alarm that a dead body was lying on the hill. Then the village’ watchman Kasim Mian and 17-18 other people went to the Bhalpahri hill where the dead body of a newborn baby was lying buried under a stone, which was wrapped in a cloth. On inquiry being made, the watchman came to know that Wajududdin's daughter the complainant was pregnant and she had given birth to the child and hidden it. The incident took place on 17th June 1997 and its report was filed in the morning of 20th June 1997 in police station Ramanujaganj. After that, the bones of the head, forehead, chin, neck etc. of the newborn baby were seized from the incident spot by Police Station Ramanujganj, postmortem was conducted of those bones and doctor said that the bones were of the newborn baby. Since the body was not found, they were unable to tell the nature and cause of the child's death. On recording of evidence, FIR under Sections 318, 302, 201 r/w 34 IPC was registered against accused Nanku, Kodu and Khatbun. Later, charge-sheet was filed against them for 3 the offence punishable under Section 318, 302, 201, 376, 313, 314 IPC before Judicial Magistrate First Class where accused Khatbun was shown to be absconded thereafter the case was committed to the Sessions Court which made over the case to learned trial Court for trial. The deceased/appellant- Nanku was charged for an offence punishable under Sections 376 (1), 302, 201, 318 IPC and present appellant Kodu was charged under Section 302, 201, 318 IPC, however, denied the charge framed against them and claimed for trial.

3. So as to establish its case, the prosecution has examined as many as many 11 witnesses and exhibited 18 documents. The statement of the accused/appellants under Section 313 CrPC were also recorded where they pleaded their innocence and false implication in the case.

4. By the judgment impugned learned Court below has held the accused/appellants guilty and imposed the sentence as described above which is challenged before this Court by the appellants.

5. Learned counsel for the present appellant submits that he is not pressing this appeal on merit, his submission is that the incident had occurred in the year 1997 at that point of time appellant Kodu was 32 years and presently he is more than 65 years. His conviction is only under Section 318 of IPC which is punishable for maximum period of 2 years or with fine or with both. The appellant remained in jail from

11.09.1997 till 01.05.1998 so to say about 7 months 19 days. For all these years he was regularly facing the lis and as such he was on bail during trial and after his conviction his sentence was also suspended by this Court and nothing is on record to suggest that the appellant is a habitual offender. As fine can only be imposed under Section 318 of IPC, ends of justice would be served if the sentence awarded to the appellant is reduced to the period already undergone by him. He further submits that the accused Khatbun was later on arrested and she was also acquitted by learned trial Court by its judgment dated 13.11.2017 against which the acquittal appeal of the State is pending consideration. 4

6. State counsel supports the judgment impugned and submits that no leniency should be shown and the appeal deserves to be dismissed.

7. Heard learned counsel for the parties and perused the record.

8. Complainant (PW-3) in her statement has stated that it was about 4 years ago, her father used to teach in the house of accused Nanku, so she used to go daily Nanku’s house to give him food, then the accused Kodu used to talk to her and tell her to marry Nanku. Accused raped her in Sirajuddin’s garden. At 8 pm accused Nanku sent his wife to pick her up. Accused Nanku’s wife met her at the tap and told her to get fresh then she accompanied with her. After that his wife ran away and accused Nanku came and raped her, due to which she became pregnant. After 9 months her baby was born alive in the house of accused Nanku. She also stated that in front of her, both the accused cut the neck of my newborn baby with a blade due to which her child died at that time she was conscious. Later she came to know that her child was killed and thrown into the hill. Accused Nanku and his wife were asking her to marry, therefore, she did not inform about the incident to anyone. On the next day of incident, she lodged the report. She admitted that she did not go to the police station to lodge the report, the watchman went. She has deposed that her mother was insane, her father works somewhere, she is poor, when her own people are like this then what would she do by telling others. She denied that accused Kodu never used to tell marry.

9. PW-1 in his statement deposed that he had gone to the market. When he returned at 4-5 in the evening, he came to know about the incident and went to the police station and reported it. To see the child, he went to Gulgul Pat with Ayush, Buchul, Saimuddin, Kalim, Abin and others, where he saw a child wrapped in clothes lying in a pit of stones. Later it was not known whose child it was. When the Police investigated later, they found out that the child was from complainant's house. He did not said in Merg (Ex.P-1) and police statement (Ex.P-2) that he came to know later that the child was from complainant’ s house. He has not stated anything in his cross-examination. 5

10. The incident has occurred on 17.06.1997. During the pendency of the appeal one of the appellants namely Nanku @ Istak Ahmad has passed away, his appeal stood abated. Appellant No.2 Kodu was aged about 32 years and now he is aged person. After his conviction, his sentence was also suspended by this Court. Nothing incriminating is brought to the notice of this Court that he has not reformed during pendency of this appeal. Nothing significant is on record to suggest that his freedom is detrimental to society at large.

11. From assessment of evidence particularly of PW-1 and PW-3 trial Court gave a categorical finding of conviction which appears to be based on proper appreciation of evidence. Considering the above facts and circumstances of the case, the appellant is facing the trial for about 28 years and he is regularly appearing before the trial Court during trial and even after during pendency of this appeal and he did not misuse the liberty granted by this Court. The appellant has reached to a mature age, his freedom does not appear to be detrimental to society, by this time he must have reformed, this Court is inclined to reduce his sentence while maintaining the conviction of present appellant under Section 318 of IPC, his sentence is reduced to the period already undergone by him.

12. Consequently, the present criminal appeal is allowed in part to the extent as indicated above.

13. The appellant is on bail. His bail bonds shall continue for a further period of 6 months as per requirement of Section 481 of BNSS, 2023.

14. The record of the trial Court with copy of this Judgment be sent back for information and necessary compliance. Sd/- PARUL MITTAL PARUL MITTAL Parul (Sachin Singh Rajput) JUDGE