JUDGMENT K. Jayachandra Reddy, J. - These two appeals by the State of U.P. are filed against the judgment of a Division Bench of the High Court of Allahabad acquitting the two respondents - Accused of the offences punishable under Sections 302, 302 read with 34, I.P.C. and Section 25(1)(a) of the Arms Act. Jamshed, the respondent in Criminal Appeal No. 526/78, is the father of Kanwar Khan, the respondent in the other appeal. These two along with Qabool Ahmad - father of Jamshed and Vakil Baboo - another son of Jamshed were put on trial before the Additional District and Sessions Judge, Saharanpur for the offence of murder of one Ram Singh, the deceased in the case. It is alleged that on 21.6.1976 at about 5 p.m. in Village Gadharana, in furtherance of the common intention of the four accused persons, Jamshed committed the murder of Ram Singh by firing at him with a country made pistol and Kanwar Khan got be a blow with Balkati - a sharpedged weapon. The trial Court convicted Jamshed under Section 302, I.P.C. and sentenced him to death and he was also convicted under Section 25(1)(a) of the Arms Act and sentenced to undergo one years R.I. Kanwar Khan was convicted under Sections 302 read with 34 I.P.C. and sentenced to imprisonment for life. The other two accused were acquitted. The appeals were filed by Jamshed and Kanwar Khan alongwith reference for the confirmation of death sentence by the High Court, which by the impugned judgment acquitted both of them of all the charges. Hence the present appeals. 2. The prosecution case is as follows: All the four accused are the residents of Village Gadharana, Saharanpur district in Roorki Tehsil. P.W. 1 Dilawar Singh was Amin in Tehsil Roorki for realising land revenues and other Government dues from the cultivators. Village Gadharana also falls in his jurisdiction. The deceased Ram Singh was a peon working under him. The family of the accused borrowed about Rs. 33,000/- from the Government and the same was outstanding against them. 3. On 21.6.1976 P.W. 1 had gone to Village Gadharana in connection with the realisation of dues alongwith the deceased. At about 5 p.m. the accused Jamshed came to call him and the deceased saying that he would pay all the dues outstanding at his residence. 33,000/- from the Government and the same was outstanding against them. 3. On 21.6.1976 P.W. 1 had gone to Village Gadharana in connection with the realisation of dues alongwith the deceased. At about 5 p.m. the accused Jamshed came to call him and the deceased saying that he would pay all the dues outstanding at his residence. On that P.W. 1 and the deceased went with the accused to his house and Jamshed put them in a room of his house. Qabool Ahmad - father of Jamshed and his two sons Kanwar Khan and Vakil Baboo were there. They asked P.W. 1 to tell the accounts on which P.W. 1 told them that a sum of Rs. 33,000/- stands outstanding. Thereupon the accused Jamshed asked P.W. 1 to prepare the receipt. At this the deceased told that the receipt would not be prepared unless the money was received. Jamshed asked him as to why the receipt would not be prepared. Thereupon Ram Singh, the deceased replied that the receipt would not be prepared unless the money was received. Then it is alleged that Qabool Ahmed and Vakil Baboo caught hold of Ram Singh and Jamshed took out a country made pistol which he had kept hidden and placed the same below the ear of Ram Singh and fired at him. Kanwar Khan brought a Balkati and gave a blow with the same on the neck of the deceased, who died on the spot. After the Jamshed aimed the pistol towards P.W. 1 and forcibly made him prepare the receipts, Exs. Ka-l, Ka-2 and Ka-3, with back dates. When P.W. 1 was forcibly made to sit in a room in the house of accused, P.W. 2, Daya Ram happened to come there searching for him. The accused persons made him also sit forcibly. At about 9 p.m. the accused persons made a Buggi ready, kept "Phoos" and "Bhoosa" and "Kandas" in the Buggi and forced P.Ws. l and 2 to place the dead body of the deceased in the Buggi. While so P.W. 2 managed to escape and he raised a hue and cry. On hearing the alarm P.Ws. 3 and 4 and some other villagers reached there. P.Ws. 3 and 4 and others snatched the pistol from Jamshed and they also released P.W. 1. l and 2 to place the dead body of the deceased in the Buggi. While so P.W. 2 managed to escape and he raised a hue and cry. On hearing the alarm P.Ws. 3 and 4 and some other villagers reached there. P.Ws. 3 and 4 and others snatched the pistol from Jamshed and they also released P.W. 1. Those persons surrounded the Buggi, took out the dead body and also caught hold of the accused. They also recovered the receipts Exs. Ka-l, Ka-2 and Ka-3 from the pocket of Qabool Ahmed P.W. l on the spot prepared a report and went to the police station and lodged the same. On the basis of this report a case was registered and the investigation was taken up by P.W. 9. P.W. 9 seized the Buggi and other articles. He found the body of the deceased in the Buggi. He also seized the bloodstained articles. After the inquest report, the dead body was sent for post mortem. P.W. 5, the Doctor, conducted the post-mortem and he found two gun shot injuries on the left and right side of the neck. He also found an incised injury below the left ear. He opined that the death was caused by haemorrhage and shock due to gun shot wounds. The prosecution examined 10 witnesses and out of them P.Ws. 1, 3 and 4 arc the material witnesses. The accused pleaded not guilty. On their behalf several suggestions were made that there was an altercation and exchange of abuses between Qabool Ahmad and P.W. 1 and later on that night some miscreants surrounded P.W. 1 and the deceased and killed the deceased and that P.W. 1 managed to escape. The trial Court relying on the evidence particularly that of P.W. 1 convicted Jamshed and Kanwar Khan but acquitted the other two accused since they did not play an important role in the attack on the deceased. The learned Sessions Judge also believed the recovery of the weapons and the receipts Exs. Ka-1, Ka-2 and Ka-3. 4. The High Court rejected the prosecution case on the ground that there was intrinsic evidence to show that the First Information was prepared later and it was anti-timed and the version of P.W. 1 that it was written later and presented in the police station cannot be relied upon and consequently his evidence also becomes doubtful. 4. The High Court rejected the prosecution case on the ground that there was intrinsic evidence to show that the First Information was prepared later and it was anti-timed and the version of P.W. 1 that it was written later and presented in the police station cannot be relied upon and consequently his evidence also becomes doubtful. The High Court also doubted the evidence of P.W. 1 regarding taking the receipt book and preparing the receipts Exs. Ka-1, Ka-2 and Ka-3. The High Court further relying on the site plan doubted the prosecution case that P.W. 1 and the deceased would have been allowed to go inside the house of the accused. The High Court was also not prepared to believe that he was forced to prepare the receipts and the learned Judge also dis-believed that P.Ws. 3 and 4 rushed to the place of occurrence and therefore the prosecution case is open to a very serious doubt and accordingly acquitted the two respondents accused. 5. From the above facts it can be seen that P.W. 1 is an important witness. In the chief examination he has stated all the details of the occurrence which are set out already while stating the prosecution case. It is not in dispute that P.W. 1 is an Amin and it was his duty to collect the Government dues from the villagers of Village Gadharana including the accused. P.W. 1 is an independent witness and he has no grudge against the family of the accused. The Investigating Officer P. W. 9 found the dead/body of the deceased in the Buggi near the house of the accused. P.W. ls evidence is also corroborated by the evidence of P.Ws. 2, 3 and 4. We are not able to see anything that can be said against the version given by P.W. 1 and as corroborated by the other witnesses. As a matter of fact P.Ws. 3 and 4 along with other villagers rushed and found P.W. 1 being held by the accused and also found the dead body in the Buggi. They caught hold of the accused arid recovered a country made pistol; from Jamshed and also the receipts. P. W. 2 was cross-examined at length. He accepted that he went to the house of the accused searching for P.W. 1 and he was also forcibly made to sit there. They caught hold of the accused arid recovered a country made pistol; from Jamshed and also the receipts. P. W. 2 was cross-examined at length. He accepted that he went to the house of the accused searching for P.W. 1 and he was also forcibly made to sit there. Nothing significant has been elicited in the cross-examination. Likewise P.Ws. 3 and 4 are also independent witnesses. Both of them deposed that on hearing the cries they reached the house of the accused and found the dead body in the Buggi standing near the house of Jamshed. The material witnesses corroborate the version given by P.W. 1 and it is not in dispute that the deceased died of gun shot injuries. Thereafter the evidence is so overwhelming and the accused had no explanation as to how the dead body was lying in the Buggi and as to how P. W. 1 was released from the hold of the accused. On the other hand the suggestion made to P.W. 1 was that on that day he went to the accused and demanded the payment of Rs: 33,000/- whereupon he was told that it is a big amount and it would be deposited and thereupon there was exchange of abuses and that night some bad characters surrounded P.W. 1 and the deceased in a Jungle and P.W. 1 ran away saving his life and then bad characters killed the deceased and that later the F.I.R. was fabricated and also the receipts Exs. Ka-1, Ka-2 and Ka-3 and that the accused were falsely implicated. This is an absurd suggestion put forward as the defence plea. This absurd suggestion itself shows that the accused had no plea worthwhile mentioning to be put forward. 6. Be that as it may, we have to see whether the prosecution has established the guilt of these two respondents-accused beyond all reasonable doubt. We have carefully gone through the evidence of P.Ws. 1 to 4 and as already discussed we see no infirmities in their evidence. While that is so the High Court strangely rejected the entire prosecution case on the mere ground that there was delay in giving the F.I.R. We are not able to appreciate how the High Court could reject the evidence of P.Ws. 1 to 4 on some surmises which are absolutely baseless. While that is so the High Court strangely rejected the entire prosecution case on the mere ground that there was delay in giving the F.I.R. We are not able to appreciate how the High Court could reject the evidence of P.Ws. 1 to 4 on some surmises which are absolutely baseless. The order of acquittal by the High Court is not based on the appreciation of the evidence and the reasons given in respect of the acquittal do not stand scrutiny at all and they are wholly unsound and we find the only view which is possible in this case is that the prosecution has proved that the two respondents-accused participated in the occurrence as spoken to by P.W. 1. 7. So far as jamshed is concerned it is proved beyond all reasonable doubts that he shot at the deceased with a country made pistol and that proved fatal. Kanwar Khan was aged only 16 years and it is alleged that he caused an incised injury, but the Doctor found it to be simple and, that did not contribute in any manner to the death. Having regard to his age and the other circumstances we think it is not safe to convict him under Section 302 read with 34 I.P.C. as it is difficult to say that he shared the common intention particularly when P.W. 1 had clearly stated the jamshed took out a pistol from the right side of his waist, which he had hidden there, and shot at the deceased after the altercation between both of them. In view of this evidence of P.W. 1 it cannot be said that Kanwar Khan was aware that jamshed had a pistol and he was likely to use it. Therefore, Kanwar Khan can be convicted only for his individual acts namely under Section 324, I.P.C. 8. In the result Criminal Appeal No. 526 of 1978 is allowed and the acquittal of the respondent accused jamshed is set aside and he is convicted under Section 302, I.P.C. and sentenced to imprisonment for life. He is further convicted under Section 25 of the Arms Act and sentenced to one years R.I. The sentences, are to run concurrently. Criminal Appeal No. 527 of 1978 is partly allowed and the respondent-accused Kanwar Khan is convicted under Section 324, I.P.C. but sentenced to the period already undergone. Appeal No. 526 allowed. Appeal No. 527 partly allowed. He is further convicted under Section 25 of the Arms Act and sentenced to one years R.I. The sentences, are to run concurrently. Criminal Appeal No. 527 of 1978 is partly allowed and the respondent-accused Kanwar Khan is convicted under Section 324, I.P.C. but sentenced to the period already undergone. Appeal No. 526 allowed. Appeal No. 527 partly allowed. Article Indian Legal Landscape and Female Foeticide Srikanta Mishra* Science is a double edged sword. While it can unravel many great mysteries, it can also take over life completely so as to make the personal Computer the father of man1. The fertilization of an ovum by a spermatozoa and the development of the Zygote into a human body is no longer a mystery. Rather, it is all chemistry. Again with the advance of biological science and the process of artificial incrimination a woman can have a child at her desire without sexual relation with her husband. This paper aims to discuss in brief certain mis-use of Amniocentesis test in India. Recent Scientific development have made it possible through simple tests to determine the sex of the child in early stages of conception. Apprehension that it may lead to selective termination of pregnancy (Female Foeticide) has raised moral and ethical questions of great importance. The consideration of this aspect is the scope of the present paper. Of late, there has been an urge in the general public that by begging the female child the family has to take the brunk on their shoulders for years to come. It has become the traditional misconception that the economy of the family will be depleted by the girl child. The cherished womanhood, which has been extolled since long had been eroded away with the influx of the foreign and modem culture. Over the year, worldly pursuits have occupied in maximized proportions and because of which the traditional culture is withering away. Dowry is another ghostly abuse which pervade in the modern society. The happiness and solace in the family have been snatched away by the heart-breaking acts like bride burning, dowry death, cruelty and so forth. In this context "sex determination test” have come into popularity. After due testing in the foetus itself, if it is determined as the female child it is destroyed. The happiness and solace in the family have been snatched away by the heart-breaking acts like bride burning, dowry death, cruelty and so forth. In this context "sex determination test” have come into popularity. After due testing in the foetus itself, if it is determined as the female child it is destroyed. Assessment of the foetus sex has been made possible by Amniocentesis after completion of 16th week and up till 20th week of pregnancy, when therapeutic abortion is medically feasible and legally permissible. Amniocentesis is a medical technique developed to detect serious mental and physical abnormalities or defects in an unborn baby. If any defect is detected the foetus can be treated or aborted. Fluid is drawn by needle from the mothers amniotic sac. The cells in the fluid are cultured for diagnosis and the test carried. It may be pointed out here that it is only at a relatively advanced stage of gestation that the foetus is capable of this test viz., around the 16th week of pregnancy. This test is now becoming quite popular with those who do not want to be burdened with female child. Upon detection that it is a female child it is aborted. The question here is, how far is it ethical, moral or legal to make use of the test only for the purposes of determining the sex of the child? So far as the use of Amniocentesis for detection of mental and physical defects in the unborn child is concerned, it is perfectly in order. But when the test is made use of for the purpose of determining whether the child in the womb is a boy or a girl then some legal and moral problems might arise. What is the right of the unborn child? Is it not discriminatory to and against female dignity to have the foetus aborted if it is female and continue the pregnancy if it is a male? Does it not amount to culpable homicide and so on?2. In 1975, Amniocentesis arrived in India as a method for the detection of genetic abnormalities. Soon it came to be used more commonly for sex determination, actually a misnomer for sex selective abortions. Does it not amount to culpable homicide and so on?2. In 1975, Amniocentesis arrived in India as a method for the detection of genetic abnormalities. Soon it came to be used more commonly for sex determination, actually a misnomer for sex selective abortions. Sex determination tests were now widely done in Bombay, Calcutta, Gujarat, Madhya Pradesh, Uttar Pradesh, Goa and unquestionally the most modem of our cities and there is also a rampant growth of such clinics even in many smaller cities. It may not be surprising at all that Sex-Selection through sperm sorting is now being practised at a test tube baby or In-Vitro Feritilization (IVF) Clinics in India to ensure that only much Coveted Sons are born. In India nearly 60 lakh abortions are carried out every year; of these about 10 lakh in licensed clinics. Further as many as 25 lakh fetuses are destroyed because they are female. Thus abortions picture in India is not gloomy. Amniocentesis is now used primarily to determine the sex of the foetus and, shocking as it may sound, murder the innocent, helpless foetus if it happens to be female3. In the eyes of criminal law only the human beings who are born alive can be the victims of murder or man-slaughter. Thus, to consider the definition of human being, one obviously would think about three stages, the moment of conception, the moment when the foetus is viable, and the moment of birth. According to common law rule it is only the last stage, when the child has independent existence, that one becomes capable of being the victim of homicide. It simply means that in the law of homicide a children Venture Sa mere (Conceived but not yet born) is not considered on the same footing as a living human being. Furthermore, the terminology of born-alive or capable to be born alive is much involved in fixing the time of birth. Clearly these two stages will never take place unless there has been the very first stage which is the moment of conception. Today and indeed for a very considerable period it has been accepted by biologists that in a strictly Scientific and Physiological sense there is life in an embryo from the time of conception. And there is no qualitative difference between an embryo at the moment of conception and at the moment of quickening. Today and indeed for a very considerable period it has been accepted by biologists that in a strictly Scientific and Physiological sense there is life in an embryo from the time of conception. And there is no qualitative difference between an embryo at the moment of conception and at the moment of quickening. If life is fully present from the moment of conception, then the right to life must begin at such stage. One might wonder why the law should not go even further and protect the life of the foetus which is not yet viable. One might except the law to extent its protection of the life to moment of conception. Generally a person should be allowed by law to do what he likes with his own body. Similarly a women may have all right to terminate his pregnancy. But the counter argument is that there is more than just the womens own body involved, that is the nonviable foetus. The legal protection must, therefore, be extended towards the non-viable foetus, who is not so radically different from a human being. It is curious to note that few years back in India, the nation wide support and international coverage received by the campaign has also resulted in the appointment by the Union government of an expert committee on "Sex-determination and female Foeticide". The Committee has after detailed dialogue and debate drafted a Central Bill and submitted it to the Union Government along with a detailed report. The Janta Dal government felt before it could talee any decision on this issue. The Chandra Shekhar government had, in its short tenure, attempted to introduce the- Bill in Parliament. The Bill actually was an attempt to nip the campaign in the bud. But it had very serious lapses. This Bill could not see the light of day due to timely protests by activist groups. Again the Congress (I) in its 1991 election manifesto has promised to enact nation wide legislation on the subject. Other political parties, too, have indicated a willingness to have a law on sex-determination tests. The laws relating to medical products are extremely weak; however those relating to medical technology are totally absent. Now the blatant misuse of Amniocentesis of sex selective abortions continues unabated. Other political parties, too, have indicated a willingness to have a law on sex-determination tests. The laws relating to medical products are extremely weak; however those relating to medical technology are totally absent. Now the blatant misuse of Amniocentesis of sex selective abortions continues unabated. State laws enacted to curb the problem have helped little, partly due to inherent defects in the law itself and an implementation machinery that leaves much to be desired. Any how, curbing sex pre-selection is possible only if a law against sex-determination, symbolising the States commitment to intervene in medical technology on grounds of right to equality and preserving the sex ratio balance is brought into effect and implemented. Here self regulation would have been also preferable to state intervention. However, the medical establishment has consistently refused to take a stand on the issue of sex-determination or for that matter on any issue of medical ethics. But ultimately, progressive legislation is not a substitute for cultural changes and consciousness raising. However, the former is, at least in the Indian context a prerequisite for social action. Female infanticide and Sati could not have been curbed, if not eliminated, without the aid of suitable legislation. Thus what ever may be the constraints of the present legal system and the broader social system within which it operates, a comprehensive national wide law on sex-determination test is urgently needed despite the fact that law is by no means an end in itself, nor will it be sufficient to deal with the problem. Again a seriousness on the part of the government to implement its laws is also vital. India is witnessing modernisation and popularisation of the small family norm, without a social acceptance for two daughters. People still prefer male children and are misusing scientific development to get boys at any cost. At the moment, people do not realise the damage it would cause to the society. They are more concerned with their family composition only, but when some generation later, it becomes difficult to find women to marry their sons to, they will wake up to the dangers. In this connection it will not be out of place to mention that, the 1991 census report has also highlighted that the trend of a declining sex-ratio prevalent throughout this century. In this connection it will not be out of place to mention that, the 1991 census report has also highlighted that the trend of a declining sex-ratio prevalent throughout this century. If the sex-determination epidemic is allowed to proliferate further in some of the de-mographically sensitive, areas, it would spell disaster for our society. Yet, a demographic Catastrophe of unprecedented dimensions an almost irretrievable break down of the sex-ratio balance is an avoidable tragedy, provided we act in time. Further adverse male-female ratio also means the chances of sexual crimes increasing rapidly. Therefore the upset of the sex-ratio leading to havoc. Today it has a great moral question. Thus Kusum Kumar opines that if resort to Amniocentesis for sex determination becomes common it is bound to create an imbalance in the male-female ratio of population. This would give rise to problems like rape and illicit relationships. Even Poly and Rous marriage would become inevitable. Thus as Amnocentesis, is a Medical advancement to detect, diagnose and treat pre-natal defects; it should not become a device to opt for one gender and discard the other4. In this connection Alice Jacob also went a step further and argues female Foeticide if permitted under the aegis of the Medical Termination of Pregnancy Act, 1971 would further drastically change the sex ratio the proportion of females to males to the total population. The number of women will become smaller than what it is already shrinkage of female population will result in a short fall of marriageable women and female labour which India needs most. Thus Amniocentesis followed by abortion for selective sex-preference and abortion for purposes of foetal experimentation should be banned5. Amniocentesis and anti natal sex determination have come to our rescue and can help in keeping some check over the accelerating population as well as give relief to the couples requiring a male child. But as stated earlier, this test is a medical advancement to detect, diagnose and treat pre-natal defects, it should not become a device to opt for one gender and discard the other. As such in India proper legislation is needed on it so that there is no commercialisation, exploitation and misuse of the medical science. Again not banning sex-determination tests in India means the government encouraging cold-blooded murder. It is all female Foeticide by the government. As such in India proper legislation is needed on it so that there is no commercialisation, exploitation and misuse of the medical science. Again not banning sex-determination tests in India means the government encouraging cold-blooded murder. It is all female Foeticide by the government. Any how the aborting of female fetuses should be checked and very couple should be asked for a declaration stating the reason for seeking abortion. If the reason is not satisfactory or found to be false, there should be a punishment clause6. Concluding this paper we may turn to a statement that if there can be an anti dowry Act, why cannot the government bring in central legilsation to check the mis-use of the Amniocentesis test? To curb the victimization of this tragic scenario the author opines for the enactment of a central law. This law is urgently needed in India. References 1. Anil Grover, Lekha Dhar and Monimoy Dasgupta, "Boy or Girl?" The Telegraph, Calcutta dated 28th October, 1990 p. 6. 2. Kusum Kumar, "Legal Implications of Medical Advancement" in New Horizons of Law, (ed) by P. Leelakrishan, Cochin, 1987, p. 210. 3. Supra n. 1, p. 6. 4. Supra n. 2, p. 212. 5. Alice Jacob, "Consequences of Legalised Abortion Law in India", in New Horizons of Law, Cochin, 1987, pp. 102, 106. 6. Supra n. 1. p. 10. * M.A. L.L.M.D.L.L. & P.M. Lecturer in Law, Lajpat Rai Law College, Sambalpur, Orissa, Pin – 768001