1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Hansiya vs. The State of Rajasthan S.B. Criminal Appeal No.236/1989 u/s 374 Cr.P.C. against the judgment dated 31.05.89 passed by the Addl. Sessions Judge , Bali, in Sessions Case No.24/1987. Date of Judgment : 29th April, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.P.R.Choudhary for the appellant . Mr.O.P.Rathi, Public Prosecutor, for the State. BY THE COURT: This criminal appeal has been preferred against the judgment and order dated 31st of May 1989 passed by the Addl.Sessions Judge , Bali whereby he has 2 convicted the accused appellant Hansiya s/o Lachha in the offence under section 314 (1) of Indian Penal Code and sentenced him to a period of three years' rigorous imprisonment and a fine of Rs.2,000/-; in default of payment of fine to undergo a further period of six months' rigorous imprisonment. The facts giving rise to the prosecution of the accused appellant Hansiya, in brief, are as under ;- On 06th of October, 1987 at 12.00 during day hours, one Kassu Meeni , widow of Danaji , r/o Kothar came to Devaram and informed him that Lehri , daughter of Chamna Mena, is lying dead in a house situated adjacent to her house. Upon this information , PW/9 Deva Ram, the then Sarpanch of village Kothar, submitted a written report Ex.P/10 to the SHO, Police Station, Nana, whereupon he commenced an enquiry under the provisions of section 174 of Cr.P.C. During the course of enquiry, the post mortem of the deceased Lehri was conducted by the 3 Medical Jurist , visceras collected during the post mortem and the articles such as bordy-ki Jarh ('desi dava') etc. were sent for chemical examination to Forensic Science Laboratory , Rajasthan, Jaipur, the statements of the witnesses acquainted with the facts and circumstances of the case were recorded and it was found that the accused Hansiya was having illicit relations with the deceased Lehri as a result of which Lehri got pregnant and the accused Hansiya intended to cause the miscarriage of Lehri with the child and administered her 'desi dava' which caused her death. The SHO, Police Station ,Nana , after completion of enquiry, lodged the FIR Ex.P/26 and investigation commenced. The investigating officer prepared a site plan Ex.P/11, executed the arrest of accused Hansiya vide arrest memo Ex.P/14, recovered and seized 'desi dava' at the instance of the accused Hansiya vide memo Ex.P/15 , recovered one kettle used for preparing 'desi 4 dava' at the instance of the accused and after usual investigation filed a police report under section 173 (2) of Cr.P.C. against the accused Hansiya , in the court of Addl. Chief Judicial Magistrate, Bali who committed the same for trial to the court of Addl.Sessions Judge Bali. The Addl.Sessions Judge conducted the trial and having found the accused appellant guilty in the offence under section 314 (1) of IPC , convicted and sentenced him as aforesaid who has preferred this appeal. Heard Mr.P.R.Choduhary, learned counsel appearing for the accused appellant and Mr.O.P.Rathi, learned Public Prosecutor appearing for the State, as also perused the impugned judgment and relevant material, including the prosecution evidence available on record. The learned counsel for the appellant has argued that the judgment of conviction of the lower court is 5 mainly based on the statements of PW/9 Deva Ram, and PW/17 Jeepa Ram who are said to have supported the prosecution case. He has further argued that the prosecution has examined 20 witnesses in all and out of these witnesses, all independent witnesses have turned hostile and they have not supported the prosecution case. Under these circumstances, the complainant PW/9 Deva Ram, who has turned hostile and PW/17 Jeepa Ram who is not an eye witness, it does not appear just and proper to rely upon the testimony of the investigating officer of this case alone and base conviction on his evidence. As per the arguments of learned counsel for the appellant, there is no evidence available on record which may prove this fact that the accused intentionally administered 'desi dava' to the deceased Lehri to cause her miscarriage with the child, which ultimately resulted in her death. Thus, it being a case of no evidence, the accused appellant deserves to be acquitted. 6 Per contra, Mr.O.P.Rathi, learned Public Prosecutor for the State has submitted that the statements of PW/17 Jeepa Ram and PW/9 Devaram are worth relying. The statements of PW/18 Mohan Lal, the then SHO , Police Station Nana, PW/19 Shyam Singh and PW/20 Sultan Ahmed, Head Constable have been corroborated by PW/9Devaram and PW/17 Jeepa Ram and from their testimony, it is very well proved that the accused appellant intentionally administered ' desi dava' to the deceased Lehri to cause her miscarriage with the child, which resulted in her death. The judgment of the lower court is perfectly legal and is well in tune with the prosecution evidence . Having considered the submissions made at the bar and scanned the entire prosecution evidence available on record, it is found that all the independent witnesses of this case, namely PW/1 Indaram, PW/2 Beeja Ram, PW/4 Mst. Meera, , PW/5 Mst. Keli, PW/6 Mst. Bantar, PW/7 Mst. Poni, PW/8 Mst. Pepi, PW/9 7 Deva Ram, PW/10 Gola, PW/11 Chuna , PW/12 Teela, PW/13 Deda, PW/14 Kasna and PW/15 Jagta, have not supported the prosecution version and they have been declared hostile. PW/16 Dr. Hansraj was posted as a doctor on 07th of March 1987 in PHC, Beda. He is said to have conducted the post mortem of the deceased Lehri. He has deposed that no exact cause of death of Lehri could be ascertained. However, it could be a case of 'suspected poisoning' . The doctor preserved visceras and sent them for chemical analysis, report of which is Ex.P/25. PW/18 Mohan Lal was SHO , Police Station, Nana, who conducted the enquiry under section 174 of Cr.P.C. and having found there being a commission of offence under section 314 of IPC, he registered the FIR Ex.P/26 in police station. PW/19 Shyam Singh is a witness, who entrusted the sealed packets marked A and B to Vishnu Prakash , Constable for taking them to Forensic Science Laboratory with a forwarding letter Ex.P/30. PW/20 Sultan Ahmed was posted as Head Constable in Police 8 Station, Nana on 06th of March 1987. That day Mr. Deva Ram, Sarpanch submitted a written report , Ex.P/10 to him, on which he commenced enquiry under section 174 of Cr.P.C. The most crucial question which is required to be determined in this case is that whether the accused appellant administered 'desi dava' with an intention to cause miscarriage of Mst.Lehri with child and secondly as to whether the administration of 'desi dava' resulted in the death of Mst. Lehri ? To bring home the offence under section 314 of IPC, the prosecution must prove that Mst.Lehri was pregnant and that the accused Hansiya administered 'bordi-'ki jarh' (desi dava), with an intention to casue miscarriage of Mst.Lehri with the child and further that such act of the appellant, resulted in the death of Mst.Lehri. It is very pertinent to note that none of the 9 independent witnesses has supported the prosecution case. There is not even a single prosecution witness who might have deposed that the accused appellant administered any 'desi dava' to cause miscarriage of Mst.Lehri with child. So far as the pregnancy is concerned, PW/16 Dr. Hansraj has mentioned in his post mortem report Ex.P/23 that the size of uterus was big and corresponding to 28-30 weeks' pregnancy. The post mortem report Ex.P/23 and the details mentioned therein have not been questioned by the accused before the lower court. Thus, from the post mortem report Ex.P/23 and the evidence of PW/16 Dr. Hansraj, it is very well proved that Mst.Lehri was pregnant at the time of her death. Now, the next question which requires determination is as to whether the accused did any act which induced Mst.Lehri's abortion, or he did such an act with the intention to let her abort. The question of death is not disputed. It is also not disputed that 10 Mst.Lehri died of taking some poisonous substance. The Forensic Science Laboratory report, Ex.P/25, supports the case of Lehri's poisonous death. It has been mentioned in the report that on chemical examination, portions of visceras (1-5) and 'desi dava' (7) from packets marked 'B' and 'A' have given positive tests for the presence of opium alkaloids. As per Modi's Medical Jurisprudence, Edition 1965 page 447, Alkaloids, all poisonous alkaloids including the following either of synthetic or of vegetable origin, their salts , simple or complex, their quaternary compounds and all other poisonous derivatives of Alkaloids .......Opium and all substances, preparations or admixtures containing 0.2 % or more of morphine calculated as anhydrous morphine. Thus, opium alkaloid is also poison and the Forensic Science Laboratory report Ex.P/25, supports the post mortem report Ex.P/23, wherein the cause of death has been ascertained on account of suspected poisoning . Now , in the light of above discussion, only one 11 question is left for determination and that is as to whether the accused appellant administered any poisonous substance to Mst.Lehri with an intention to let her abort ?. There is not even a shred of evidence available on record, which may lead to infer that the accused administered any poisonous substance. All the independent prosecution witnesses have not supported the prosecution case , including the complainant PW/9 Deva Ram and they have been declared hostile. PW/17 Jeepa Ram,who happens to be the brother of deceased Lehri, was not in the village on the date of occurrence . His evidence is based on the information given by his brother and Sarpanch who told him that Hansiya had administered poison to Lehri and killed her. Sarpanch is nobody else except PW/9 Devaram, who gave the written report Ex.P/10 to police. He has admitted only one fact that he submitted the written report Ex.P/10 to police. But rest of the statements given under section 161 of Cr.P.C. have been denied by him. He does not support the recovery of kettle also. PW/18 12 Mohan Lal is said to have conducted the enquiry of this case but he is not an eye witness and there is not any such circumstance available on record which can even emit the ray of the commission of the offence under Section 314 of IPC The lower court has appreciated the prosecution evidence in para 22, para 24, and para 25 and drawn the conclusion in para 26 of the judgment. His judgment of conviction is totally based on surmises and conjectures. The learned lower court appears to have relied more upon the statements given by the witnesses under section 161 of Cr.P.C. before the investigating Officer than the statements given on oath before the court. The approach of the learned lower court is found to be in utter disregard of the principles of criminal jurisprudence. An officer of the rank of Addl. Sessions Judge, is not required to convict an accused on the basis of surmises and conjectures. He is expected to show due regard to the provisions of law and the principles of criminal jurisprudence. 13 I do not find even an iota or shred of evidence which may lead the Court to infer that it is the accused appellant alone, who administered 'desi dava' to Mst. Lehri, with an intention to let her abort and his such act, resulted in her death. To my firm view, the case at hand is totally a case of no evidence and there is no option left before me but to acquit the accused in the alleged charge of offence. In view of above discussion, the criminal appeal filed by the accused appellant Hansiya s/o Lachha succeeds. The judgment of conviction and order of sentence dated 31st of May, 1989 passed by the Addl.Sessions Judge ,Bali are set aside. The bail bonds of the accused appellant stands cancelled. (MAHESH BHAGWATI), J. l.george