SAIRA Vs. STATE OF U.T. CHANDIGARH

JUDGEMENT

(1.) THE prosecution case in brief is that Smt. Sarabjit Kaur wife of Jagir Singh gave birth to a male child in General Hospital, Sector 16, Chandigarh on 6.7.90 at 10.15 AM. About one hour thereafter, she and her child were shifted to bed No. 19 in that hospital. She was being looked after by her sister Kuldip Kaur. At about 10 PM she breast fed the child and then she, child and Kuldip Kaur went to sleep. At about 11.45 PM she happened to wake up and then she found the child to be missing. Kuldip Kaur also got up and they raised alarm. Other patients in the ward also got up. She told them that her newly born male child had been stolen by some unknown person. At about 1.30 AM on 7.7.90, the police arrived in the hospital. Case was registered. During investigation, the child was recovered by the police from the possession of Smt. Saira accused in the presence of Jagir Singh who is husband of Smt. Sarabjit Kaur. Mohammad Sadiq was also there with the police. Smt. Saira had not been pregnant and she had not delivered the child. She was found sitting on a cot in her house with a newly born child in her lap. She could give no explanation about her possession of that child. On the stomach of the child there was a slip bearing the inscription of the child "Bay of Sarabjit Kaur Sex Male Time 10.50 AM on 6.7.1990". Jagir Singh also identified the child to be his child who had been stolen. Slip Ex.P1 was removed from the stomach of the newly born child. ASI Mohan Lal took the child into possession vide Memo Ex.PB attested by Jagir Singh and Mohammad Sadiq. Constable Kulwinder Kaur was called. Saira was got medically examined and the concerned medical officer reported that she had not delivered in the recent past. She was arrested. After investigation, she was challaned under section 363 IPC. On the conclusion of the trial, Chief Judicial Magistrate, Chandigarh found the charge under section 363 IPC proved against the accused. He accordingly convicted her and sentenced her to undergo RI for 2 years and to pay fine of Rs. 500/- or in default to undergo further RI for one month under section 363 IPC vide order dated 1.8.95. Saira went in appeal to the Court of Session. Shri B.S. Bedi, Sessions Judge, Chandigarh dismissed the appeal and upheld the conviction and sentence passed upon Saira under Section 363 IPC vide order dated 1.2.99. Saira has come up in revision to this Court.

(2.) SARABJIT Kaur PW1 stated that she was admitted for delivery in General Hospital at 7 PM on 5.7.90. At about 10.30 AM on 6.7.90, she delivered a male child. After about on hour, she was shifted to bed No. 19 along with the child. She and her sister were looking after the child. At about 11.30 PM, she breast fed the child and then she, child and her sister Kuldip Kaur went to sleep. At about 11.40 PM, she woke up and found her newly born child missing. Her sister also got up. They raised hue and cry which also awakened other patients. She told that her newly born child had been stolen by some one. On 7.7.90 at 1.30 AM, police came to the hospital and recorded her statement Ex.PA. Her son was recovered by the police on 8.7.90 in the presence of her husband. ASI Mohan Lal stated that he received telephonic message that a newly born child had been stolen from General Hospital. Inspector Ashwani Kumar along with AsI Mohan Lal rushed to the hospital and recorded the statement of Sarabjit Kaur Ex.PA which she signed in token of its correctness. On 8.7.90, ASI Mohan Lal along with Inspector Ashwani Kumar and other police officials were investigating the case. They reached Sector 29 where Sarabjit Kaur's husband and one Mohammad Sadiq met them. He received secret information that Saira, a resident of H.No. 1026, Sector 29-B was having a newly born child though she was not pregnant and had not delivered the male child. They raided her house and found her sitting on a cot with a newly born male child in her lap. She could not give satisfactory explanation about the possession of the male child. Jagir Singh father on the male child identified that it was his male child who had been stolen. On the stomach of the child a slip was pasted bearing inscription "Baby of Sarabjit Kaur Sex Male Time 10.15 AM on 6.7.90". ASI Mohan Lal removed the slip from the stomach of the baby and took it into possession. He also took the child into possession vide memo Ex.PB which was attested by Jagir Singh and Mohammad Sadiq PWs. Smt. Saira was got medically examined and it was found that recently she had not delivered any child. Blood group test of Smt. Sarabjit Kaur, her husband and the child was also conducted and it was found that the male child was their offspring. Dr. Veena Sarna stated that she examined Sarabjit Kaur PW1 at 9 AM on 6.7.90. She was prima-graiva at T+ one week pregnancy. She was in active labour. Her CR No. was 10867. She delivered a male child alive at 10.15 AM on 6.7.90. Lady Dr. Meenal PW5 stated that at about 11.00 AM on 21.7.90 she medico-legally examined Sarabjit Kaur. After her examination she found her breast active milk discharge. She found that she had delivered a child about 3 weeks back.

(3.) LEARNED Counsel for the petitioner submitted that the petitioner has small children to look after and she is a widow and there is no other member to earn a living and as such she should be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958. Suffice it to say, the petitioner stole the newly born male child from the possession of its mother when it was lying asleep with its mother on 6.7.90 at about 10-11 PM. Petitioner should have thought of the mental pain and torture the parents of the child would be put to in consequence of the kidnapping of the child by her. Saira does not seem to have human heart. If she did not have a male child, she should not have tried to fill her lap with a male child at the cost of emptying the lap of another woman who had born her. Keeping, however, in view that the petitioner is a widow and has children to look after and also that she has faced the vagaries of this trial for about 8 years, I think the sentence imposed upon her should be slashed and brought down. So, the sentence imposed upon the petitioner is slashed and brought down to RI for one year under Section 363 IPC. Fine imposed upon her by the courts below is maintained together with the default clause.