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2019 DIGILAW 467 (UTT)

PRATAP SINGH v. STATE OF UTTARAKHAND

2019-08-28

R.C.KHULBE

body2019
JUDGMENT Hon'ble R.C. Khulbe, J. This criminal appeal has been filed under Section 374 against the judgment and order dated 13.02.2004 passed by the learned Additional Sessions Jude/Fast Track Court, Tehri Garhwal in Session Trial No.1 of 2003, State Vs. Pratap Singh & Ors., whereby the appellant was convicted under Section 315 IPC and sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.10,000/- (Rupees Ten Thousand Only). 2. Prosecution story, in brief, is that accused Pratap Singh, who is son of Madan Singh, brother of the complainant and cousin of Km. Surti, minor daughter of the complainant aged about 17 years, made illicit relations with her by enticing and influencing her, due to which she became pregnant. On 04.02.2001, Km. Surti had gone to attend marriage of her aunt's (mausi) daughter in village Nada Patti Lostu, she delivered a dead son. On this the brother-in-law of the complainant Prem Singh Negi came to the village of the complainant. On this information, the complainant went to village Nada and returned in the evening of 05.02.2001 to his village along with Km. Surti and her dead son. When he enquired from Km. Surti about the dead son in presence of the Gaon Pradhan and other Panchas, she told that the child was born out of her illegal relations with Pratap Singh. On this, Gaon Pradhan and other Panchas called Pratap Singh on 05.02.2001 and enquired from Km. Surti in the presence of Pratap Singh, she told before them that Pratap Singh had forcibly made illegal relations with her by alluring her, as a result of which, she became pregnant. Immediately thereafter, Pratap Singh ran away and went to his house. Thereafter, Village Pradhan and all other persons present there, went to Pratap Singh's house along with Km. Surti and dead child, but he did not accept this. On this Village Pradhan and other Panchas suggested that medical examination be done on 06.02.2001 at Kirtinagar, to which the accused agreed. At that time, accused and his other family members hurled filthy abuses and gave beatings and the accused fled away from his house. 3. PW4 Dr. Bhawani Pal conducted medical examination of Km. Surti on 20.02.2001 at 2:30 p.m., and prepared report Ex.Ka.2. On general examination, the doctor found Km. Surti a young girl and fully conscious. At that time, accused and his other family members hurled filthy abuses and gave beatings and the accused fled away from his house. 3. PW4 Dr. Bhawani Pal conducted medical examination of Km. Surti on 20.02.2001 at 2:30 p.m., and prepared report Ex.Ka.2. On general examination, the doctor found Km. Surti a young girl and fully conscious. On query, she informed that her menstrual cycle was off for the last eight months and on 04.02.2001 she gave birth to a dead girl. After examination of her body, the doctor found liner signs (pregnancy stretch mark) all over lower side of her abdomen. Her breasts were fully developed and milk was coming. On her internal examination, second degree genital tear present and foul smell bleeding was coming. The mouth of the uterus was open, swelled and of full size. There was infection in the uterus. As per the opinion of the doctor, she delivered a baby about 15 days back and it was full time pregnancy. 4. PW5 Dr. G.S. Rawat conducted post mortem examination of a female baby on 19.02.2001. Following ante mortem injuries were in the body: (1) Contusion 0.8 cm. X 0.5 cm. size was present on the tip of the nose. (2) Contusion 1 cm. X 1 cm. size present on the inner aspect of the middle of upper lip. (3) Post mortem injures were lacerated wound at the level of left groin 15 cm. X 10 cm. X abdominal cavity deep with the missing left lower extremity along with left half of pelvis & sacrum bone, lower part of vulva and vagina and perium below it and left side along with left part of soft tissues, nerve & vessel of sacrum and left side pelvis and organs in that cavity were absent. Uterus, skin of bladder, rectum and anal level as a whole were missing. There was no blood clot present; margins of the wound were irregular and pale, and not swollen. There were no sign of sprouting of blood and deep infiltration of blood in the wound area. There was no vital reaction present in the wound. Intestines were protruding out of the wound. (4) Contused wound 5 cm. X 3 cm. X muscle deep on the middle aspect of the thigh, 3 cm. below the junction of thigh and perineum right side wound clearly similar to injury no.1. There was no vital reaction present in the wound. Intestines were protruding out of the wound. (4) Contused wound 5 cm. X 3 cm. X muscle deep on the middle aspect of the thigh, 3 cm. below the junction of thigh and perineum right side wound clearly similar to injury no.1. Both the post mortem injuries could be caused by animal. (5) On the internal examination, the membranes of the brain were contused and liquefied and pleura was red. Larynx and trachea were also red. Both the lungs were congested and had red colour. Peritoneum was red. Cavity of abdomen contained foul smelling gasses. Rectum and Anal canal were absent and contained meconium and gasses. Spleen was congested. Urinary bladders were missing, Naval was clearly cut and tied with thread. There was no blood on the navel. The doctor opined that the death was caused due to asphyxia as a result of smothering. 5. The investigation of this case was conducted by the Review Inspector Dhanpat Lal, who recorded the statements of witnesses and submitted the charge sheet. 6. On 29.05.2003 charges were framed against the accused Pratap Singh under Sections 376 and 315 IPC and separate charges were recorded against Pratap Singh, Madan Singh, Smt. Laxmi Devi, Km. Anita and Km. Sarita under Sections 147, 149, 323, 504, 506 of IPC. 7. In order to prove its case the prosecution examined as many as five witnesses, namely, PW1 Km. Surti, PW2 Magan Singh, PW3 Gabar Singh, PW4 Dr. Bhawani Pal and PW5 Dr. G.S. Rawat. 8. PW2 Magan Singh proved the FIR (Ex.Ka-1), PW4 Dr. Bhawani Pal proved the Medical Report of Km. Surti and PW5 Dr. G.S. Rawat proved the post mortem report of the dead body of the baby (Ex.Ka-3). 9. After completion of the prosecution evidence, statements of accused under Section 313 Cr.P.C. was recorded in which they pleaded innocent and denied all the charges levelled against them, however, stated that they have been falsely implicated in the crime due to enmity. 10. After hearing both the parties the trial court acquitted the accused Madan Singh, Smt. Laxmi Devi, Km. Anita and Km. Sarita under Sections 147, 323, 504, 506 of IPC and also acquitted the accused Pratap Singh under Sections 376, 147, 323, 504, 506 IPC, but convicted him under Section 315 of IPC and sentenced three years rigorous imprisonment along with fine of Rs.10,000/-. Anita and Km. Sarita under Sections 147, 323, 504, 506 of IPC and also acquitted the accused Pratap Singh under Sections 376, 147, 323, 504, 506 IPC, but convicted him under Section 315 of IPC and sentenced three years rigorous imprisonment along with fine of Rs.10,000/-. Aggrieved by this order the present appeal has been filed by the accused- Pratap Singh. 11. Heard learned counsel for the parties and perused the record with utmost care and caution. 12. It is argued by learned counsel for the appellant that there is no evidence on record to convict the appellant under Section 315 IPC and there is no evidence on record that the accused administered any medicine with the intension to preventing the child from being alive and causing it to die after its birth. 13. Apart from that, as per the prosecution story sample was taken by the I.O. during investigation, but that sample was not sent for DNA test. In this regard, there is no evidence in the file. The accused did not commit any rape with the prosecutrix and the accused was not the biological father of the newborn baby. 14. As per the FIR the accused committed rape with the prosecutrix and assault her and also threatening her for dire consequences. But these allegations were not proved. Ultimately the accused was acquitted under Sections 376, 147, 323, 504, 506 IPC. 15. It is pertinent to note here that, no appeal was filed either by the aggrieved person or on behalf of the State against the acquittal. Since the accused was convicted under Section 315 IPC. Accordingly he knocked the door of this Court for filing the appeal. Since the appeal was filed by the accused-Pratap Singh against the judgment and order dated 13.02.2004, whereby the appellant was convicted under Section 315 of IPC. As regard to the offence punishable under Section 315 IPC is concerned, the statement of prosecutrix PW-1 recorded before the lower court. Although, she narrated the same story as stated in the FIR and alleged that the accused had committed rape with her. 16. Since the accused has been acquitted under Sections 376, 147, 323, 504, 506 IPC, hence the appellate court cannot go into the merit regarding this aspect. 17. Now, only the question is that whether any medicine was given by the accused to the prosecutrix or not. 16. Since the accused has been acquitted under Sections 376, 147, 323, 504, 506 IPC, hence the appellate court cannot go into the merit regarding this aspect. 17. Now, only the question is that whether any medicine was given by the accused to the prosecutrix or not. Whether the death of the newborn baby was took place due to the medicine taken by the prosecutrix. 18. In this regard the statement of prosecutrix is very material. The prosecutrix-PW-1 stated that she desired her miscarriage during pregnancy, so that she could save herself from any bad disease. She did not tell about her pregnancy to the accused. Rather the accused told that she had developed pregnancy and he will abort it. It was the month of Mangh, when the accused brought medicine she thought that she should take medicine so that the baby should be aborted. Accordingly, she took medicine two times. 19. From the above statement as narrated by PW-1 prosecutrix, there is no evidence on record to prove that the accused brought the medicine and give that to the prosecutrix. There is no evidence that after taking that medicine the baby of the prosecutrix was born alive and died thereafter. 20. There is no evidence on record that what type of medicine brought by the accused and in what date and what time that medicine was given to the prosecutrix. There is no evidence on record that the accused forcibly administered the medicine to the prosecutrix. Apart from that the statement of PW-5 Dr. G.S. Rawat is on record, he stated in his statement in para no. 12 that, the child was born alive and the death was caused by asphyxia as a result of smothering. In this case there is no symptom which could indicate that the baby was also administered medicine and attempt was made to kill the baby before death. There is no evidence on record which shows that the death of the baby took place due to medicine taken by the prosecutrix before giving birth. 21. It is very unfortunate that, in the present case the IO did not investigate the matter properly. Although, the IO took a sample for DNA testing but actually it was not sent for DNA test. It is glaring mistake on the part of the IO. 21. It is very unfortunate that, in the present case the IO did not investigate the matter properly. Although, the IO took a sample for DNA testing but actually it was not sent for DNA test. It is glaring mistake on the part of the IO. But without DNA test, this court cannot reach in this conclusion that the accused was the biological father of the newborn baby. There is no evidence on record that the accused brought the medicine for miscarriage of the prosecutrix. While as per the statement of PW-5 Dr. G.S. Rawat, the baby was born alive thereafter he died due to asphyxia as a result of smothering. While, there is no case of prosecution that the accused smothered the baby. There is no evidence on record that due to the medicine, newborn baby died. 22. After reassessing the entire evidence, I came to this conclusion that the prosecution has failed to produce clinching evidence against the accused to prove the charge under Section 315 IPC. 23. In these circumstances, the present appeal succeeds and accordingly, allowed. 24. In these circumstances, the conviction order dated 13.02.2004 passed by the Additional Sessions Judge/FTC, Tehri Garhwal in SST No.1 of 2003 is hereby set aside and the accused is acquitted under Section 315 of IPC also. 25. Lower Court record be sent back.