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2017 DIGILAW 21 (CHH)

Devnath Mansaram Nishad v. State of M. P.

2017-01-05

CHANDRA BHUSHAN BAJPAI

body2017
JUDGMENT : Chandra Bhushan Bajpai, J. This appeal has been filed against the judgment of conviction and order of sentence dated 3-4-1999 passed by the Second Additional Sessions Judge, Balodabazar in Sessions. Trial No. 138/98 convicting the present accused/appellant along with co-accused Kamlabai under Section 315 read with Section 34 of the Indian Penal Code, 1860 (in short 'the IPC) and Section 318 of Section 34 of the IPC and sentencing rigorous imprisonment for 7 years and rigorous imprisonment for 1 year to each accused. 2. Co-accused Kamlabai had preferred any appeal against the said judgment or not, to ensure this fact, this Court directed vide order dated 22-6-2009 directed Registry to verify whether there is appeal filed on behalf of Kamlabai or not. As per report of the enquiry/filing clerk of the Registry dated 20-7-2009, no any criminal appeal has been filed in the name of Kamlabai pertaining to Sessions Trial No. 138/98. With this, this fact is recorded that the co-accused Kamlabai had not preferred any appeal against her conviction. 3. Conviction is impugned on the ground that without there being any iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 4. As per case of the prosecution, on 3-2-1998 prior to 5.00 a.m. morning in the night, accused Devnath gave medication for the purposes to prevent child being born alive as the co-accused Kamlabai was pregnant on account of illegal relation from accused/appellant Devnath and after consumption of such medication, co-accused Kamlabai aborted a dead child of about 8 months. Thereafter, for the purpose of concealing the birth of said dead child both the accused secretly disposed the dead body of said 8 months child born as miscarriage. Both the accused buried the dead body in the kitchen garden behind the house of co-accused Kamlabai. Also as the accused/appellant committed sexual rape without consent and will of co-accused Kamlabai, the matter was reported to Police Station Suhela by the villagers vide report Ex.-P/13 dated 5-2-1998, Suhela police registered the dehati merg after exhuming the dead body as Ex.-P/14 which is later on registered as Ex.-P/12. After merg enquiry, FIR Ex.-P/15 was recorded by the Sub-Inspector (Police) R.P. Sharma (PW-15). The dead body so exhumed was sent for medical examination. After merg enquiry, FIR Ex.-P/15 was recorded by the Sub-Inspector (Police) R.P. Sharma (PW-15). The dead body so exhumed was sent for medical examination. Doctor T. Khes (PW-9) examined said dead infant and prepared autopsy report Ex.-P/10 and opined that the infant was born dead, the infants age is 8 months, due to taking medicine abortion may occur. The prosecutrix/co-accused was also sent for MLC. Doctor Smt. Reeta Chaba (PW-11) examined the prosecutrix/co-accused gave her report Ex.-P/11 and opined that the prosecutrix was pregnant, the baby was delivered about two weeks back, sign of recent delivery as described above are present. Suhela police recorded the statements under Section 161 of the Code of Criminal Procedure (in short ' the Code) and also arrested both the accused, prepared spot map and after necessary investigation charge-sheet was filed before the Additional CJM, Balodabazar who registered the same as Criminal Case No. 388/1998 and vide order dated 11-3-1998 committed the same towards the Court of Sessions. The learned Additional Session Judge received the case on transfer and conducted the trial. 5. Present accused/appellant was charged for the offence under Section 315 read with Section 34, Section 318 read with Section 34 of the IPC and Section 376 of the IPC. Other co-accused Kamlabai was also charged for the offence under Section 315 read with Section 34 and Section 318 read with Section 34 of the IPC. 6. In order to prove guilt of both the accused, prosecution examined 16 witnesses. Statements of both the accused were recorded under Section 313 of the Code wherein they denied the circumstances appearing against them, pleaded innocence and false implication in crime in question. In their defence, the accused examined Shrithari (DW-1), Shahar (DW-2), Dhaniram (DW-3) and Jhabburam (DW-4) who had not stated anything specific for or against the present incident but supported the accused/appellant for their innocence. 7. After providing opportunity of hearing to the parties, the learned trial Judge acquitted the present accused/appellant for the offence under Section 376 of the IPC and convicted the present accused/appellant and co-accused Kamlabai as aforementioned. 8. Heard learned counsel for the parties and perused the record of the trial Court. 9. Learned counsel for the appellant vehemently argued that none of the prosecution witnesses stated anything against the present appellant for the ingredients of offence under Section 318 read with Section 34 of the IPC. 8. Heard learned counsel for the parties and perused the record of the trial Court. 9. Learned counsel for the appellant vehemently argued that none of the prosecution witnesses stated anything against the present appellant for the ingredients of offence under Section 318 read with Section 34 of the IPC. On the other hand, Panchram (PW-5), Gulal (PW-6), Mohitdas (PW-7) specifically deposed that it is the co-accused Kamlabai who stated before them that she herself buried the dead infant in the kitchen garden behind her house. With this, as there is no evidence against the present appellant for the offence under Section 318 read with Section 34 of the IPC, conviction of the appellant for this offence is erroneous and illegal. 10. Learned counsel would further argue that at the best, the Court may take cognizance about the fact that some medication were given to co-accused, though the appellant is not specifically admitting this fact but as per Panchram (PW-5) and Mohitdas (PW-7), the co-accused on being asked stated before the villagers that after taking tablet from Devnath she aborted dead child, but wrapper of said medicine, name of such medicine is not traceable in the matter. On the other hand, co-accused Kamlabai denied in her statement under Section 313 of the Code that the present accused/appellant ever gave her any medicine. With the above, evidentiary value of the statement of Panchram (PW-5) and Mohitdas (PW-7) come under the cloud of suspicion and doubt because the author herself is not supporting those two witnesses. Learned counsel would further arguor that as per the statement of Doctro T. Khes (PW-9) who made the autopsy for the dead infant categorically stated in para 6 of his cross-examination that sometimes pregnancy of 8 months may also terminate even without any medication. This witness admitted that he was not sure that the abortion was on account of medication, that is why he stated possibility of abortion after taking medicine. The witness further stated that as in a case of pregnant lady of 8 months taking medicine for abortion, possibility of death of mother is also possible. This witness further admitted that in case of induced abortion if any medicine is taken, then intoxicity shall effect for infant as well as the mother. The witness further stated that as in a case of pregnant lady of 8 months taking medicine for abortion, possibility of death of mother is also possible. This witness further admitted that in case of induced abortion if any medicine is taken, then intoxicity shall effect for infant as well as the mother. The Doctor further admitted that simply after seeing the dead body of the infant, it cannot be opined that whether the said infant is as a result of miscarriage or delivered in a normal delivery. The Doctor further admitted that if a pregnant lady went through miscarriage earlier, then the possibility of miscarriage is high. With the above medical opinion, learned counsel for the appellant would submit that the prosecution failed to prove its case beyond all probable doubt that the miscarriage was only on account of medication. The learned counsel further placed reliance on the cross-examination of Doctor Smt. Reeta Chaba (PW-11) who examined the prosecutrix/co-accused, as per para 5 of her cross-examination, she admits that in report Ex. P/11 she only opined for delivery not for abortion. She further clarifies that after 5 months there is no abortion, hence after 5 months it is termed as delivery. The Doctor further admitted that on a natural cause between 5 to 7 months any lady may delivery prematurely. The Doctor further admitted that if any medicine which ought not to have been taken during pregnancy, if the pregnant lady takes such medicine, there may be abortion. The Doctor admitted in para 7 of the cross-examination that she cannot differentiate normal delivery and delivery induced by medication. 11. The learned counsel would further submit that as the prosecutix/co-accused alleged orally name of one Hetram not of present accused for medicine allegedly given. Even for the sake of argument, it cannot be termed as medicine given for induced premature abortion/delivery. 11. The learned counsel would further submit that as the prosecutix/co-accused alleged orally name of one Hetram not of present accused for medicine allegedly given. Even for the sake of argument, it cannot be termed as medicine given for induced premature abortion/delivery. The learned counsel would further argue that as the prosecution failed to prove its case beyond all probable doubt, in the present matter, as a settled law, benefit of doubt may be extended to the accused/appellant in the matter as the other witnesses not supported the prosecutions story and it would not be safe to rely on the statements of Panchram (PW-5), Mohitdas (PW-7) as the other witnesses Smt. Radhabai (PW-2), Hinchharam (PW-3), Ramlal (PW-4) and Gulal (PW-6) had not said anything categorically regarding role of present appellant for alleged premature termination of pregnancy for the purpose to prevent child being born alive. Hence, the appellant may be given benefit of doubt. 12. Per contra, learned counsel for the State/respondent opposed the argument advanced on behalf of the appellant and would submit that as Panchram (PW-5), Mohitdas (PW-7) categorically deposed that before them co-accused confessed that it is the present accused/appellant who gave medicine and thereafter she aborted, it goes to show that the accused/appellant is accused of the act done with intention to prevent the child being born and as the infant delivered dead as proved by the medical corroboration and also the co-accused was found a mother (sic) delivered sometimes ago. Hence, the trial Court rightly convicted and sentenced the accused/appellant and as such, the appeal filed on behalf of the appellant may be dismissed. 13. In order to appreciate the arguments advanced on behalf of the parties, I have perused the evidence adduced by the prosecution. 14. From minute examination of the evidence of witnesses, it appears that but for Panchram (PW-5) and Mohitdas (PW-7), no other witness though present at the time of question being asked from the co-accused supported the prosecutions story, other witnesses had deposed regarding role of one Hetram for such pregnancy. The co-accused also in her statement recorded under Section 313 of the Code not said anything that the accused/appellant gave her any medication for the purposes of abortion. Also witnesses Panchram (PW-5) and Mohitdas (PW-7) supcifically deposed that the prosecutrix/co-accused herself admitted that she had burried the dead infant in the kitchen garden. The co-accused also in her statement recorded under Section 313 of the Code not said anything that the accused/appellant gave her any medication for the purposes of abortion. Also witnesses Panchram (PW-5) and Mohitdas (PW-7) supcifically deposed that the prosecutrix/co-accused herself admitted that she had burried the dead infant in the kitchen garden. With this, there is no any evidence against the present accused/appellant for the offence under Section 318 read with Section 34 of the IPC. 15. So far as the evidence to hold the accused/appellant responsible for abortion is concerned, said medicine or wrapper is not identified or disclosed. The co-accused is not supporting for such medication. Other witnesses present at the spot along with Panchram (PW-5) and Mohitdas (PW-7) not supporting their statements. Also as per the opinion of Doctor T. Khes (PW-9), para 6, it cannot be held conclusive that said abortion was induced abortion with the help of some specific medicine. As the infant was aged about 8 months, with this there may be many more reasons for the delivery of dead infant, the other possibilities also may not be ruled out. Also after perusal of the entire evidence of Doctor Smt. Reeta Chaba (PW-11), it is surfaced that it cannot be held conclusive that the said abortion was induced through any medicine and also as there was no any adverse effect with the co-accused, it cannot be ruled out that the abortion may be on account of any other reason which may occur. In a case of pregnancy of 8 months, for the sake of argument if this be believed that the present accused/appellant gave any medicine, the said medicine may be for any other purpose. It is required to prove that the said medicine was given with intention to prevent the child being born alive and in the present case, no any witness had stated anything that as per the statement of Kamlabai, the co-accused the present accused/appellant gave her medication for the purposes of abortion. With all the probabilities, in the considered view of this Court, it cannot be held that said medication was for the purposes of abortion and in the present case, it would not be safe to convict the present accused/appellant on the basis of evidence available. As a settled law, benefit of doubt must go to the accused where there are more then one possibility. 16. As a settled law, benefit of doubt must go to the accused where there are more then one possibility. 16. Consequently, in the considered view of this Court, prosecution failed to prove its case against the present accused/appellant for the offence under Section 318 read with Section 34 of the IPC and also the prosecution failed to prove its case against the present accused/appellant beyond all probable and reasonable doubt for the offence under Section 315 read with Section 34 of the IPC. With this, the accused/appellant is entitled for benefit of doubt. Consequently, the appeal filed by the appellant is hereby allowed. The accused/appellant is acquitted from the charges after affording benefit of doubt. Appeal allowed.