HIGH COURT OF CHHATriSGARH, BILASPUR SINGLE BENCH: HON'BLE SHRI R. L. JHANWAR, J. Criminal Auueal No. 1489/1999 s-^ APPELLANTS Leeladhar and others Versus RESPONDENT State of M.P (now Chhattisgarh) J_D G E MENT POST ON «AUGUST, 2009 ,L. \ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLEBENCH: HON'BLE SHRI RAJESHWAR LAL JHANWAR, J. Annellants Respondent Criminal Aooeal No. 1489/1999 1. Leeladhar son of Kanhaiyalal, aged 22 years 2. Jamunabai, Wd/o Kahnaiyalal, Vaishnav, aged 45 years 3 Mohd. Safi, S/o Janab Sheikh Mehboob, aged 50 years, Medical Pracdtioner (R.M.P) All Residents of Village- Odan, Police Station - Palari, Distt. Raipur (M.P.) Versus The State of M.P. ( Now Chhattisgarh) APPEAL UNDER^SECTION 374 (2) OF THE CODE OF CRIMINAL PRQCEDURE, 1973 Present:- Shri R.S. Patel, counsel for the appellants. Shri U.K.S. Chandel, Panel Lawyer for the State. JUDGMENT (Delivered on (§18/2009) 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 7th May, 1999 passed by the II Additional Sessions Judge, Balodabazar, District Raipur in S.T.Nol83/1997, whereby the learned Additional Sessions Judge while acquitting the appellant No.l- Leeladhar under Section 376 of the IPC convicted all the appellants for commission of offence punishable under Secdon 313 of the IPC and sentenced them to undergo R.I. for 7 years and to pay fme of Rs.1000/, in default of payment of fme to undergo additional S.I. for 6 months. 2. During pendency ofthis appeal, appellant No. 2 65 3 died, so the appeal so far as it relates to the appellants No. 2 & 3 stands abated. 3. The prosecudon story, in brief, is that the appellant Leeladhar proinised to marry, made illicit relation with prosecutruc, as a result of which she became pregnant. Her pregnancy was without her consent was terminated by appellant No. 2 8s 3 and the appellant No.l associated with them. The matter was report to the police. Investigation took place. After taking evidence under Section 161 Cr.P.C. and seizure \ was made, and after completion of investigation the charge sheet for the offence punishable under Sections 376 &, 313 of the IPC was filed before J.M.F.C. Baloda Bazar and, in due course, the case was committed to the Sessions court of Raipur, from where the learned Sessions Judge made over the case to the learned II Additional Sessions Judge, Baloda Bazar. 4. The learned trial Court framed charge under Sections 376 8s 313 against the appellant Leeladhar and charge under Section 313 of the IPC framed against the appellant No. 2 85 3, and read over and explained to the appellants, who abjured the guilt and pleaded that they have been falsely implicated in the case. 5. The learned Additional Sessions Judge after evaluating the evidence available on record and hearing the eounsel for respective parties convicted and sentenced the appellants, as above. 6. I have heard learned counsel for both the parties at length and perused the record of the trial Court. 7. The learned trial Court on the statement of Dr. Smt. Nihar Bajpayee (P.W.6) carae to a conclusion that the prosecution was pregnant and had undergone abortion. Further on the hearsay statement of Bahur Das (P.W.l), Shambhu (P.W.3), Mannu (P.W.4) , Ajuram (P.W.5) , Bodhan (P.W.ll) , Ramsai (P.W.12), Chedilal (P.W.13) before whom prosecutrix admitted that she was aborted by the appellant and appellant No. 2 & 3 and convicted the appellants under Section 313 of the IPC. 8. Prosecutrbc Devki Bai (P.W.2) has been examined by the prosecution. She in her statement categorically denied that she was aborted. She in her statement did not implicate any of the appellant. She stated that neither appellant coinmitted intercourse with her nor got he aborted her. From her statement it appears that without her will FIR has been got recorded by the villagers. May she be pregnant or she be aborted unless there is positive statement or evidence against the appellant that appellant got the prosecutrbc aborted only on the basis of hearsay appellant cannot be convicted for such offence. \ ^ 9. When the prosecutruc does not say a single word that the appellant got her aborted and when there is no substantial reliable evidence against the appellant to implicate him in the said offence it is not desirable that only on the basis of some hearsay evidence or surmises or conjunction any person should be held guilty for commission of offence under Secdon 313 ofthe IPC. 10. From perusal of the statement of prosecutrbt, I am of the view that fmding recorded against the appellant for commission offence under Section 313 of the IPC cannot be substantiated and the above finding needs to be interfered with. 11. In the result, the appeal succeeds and the conviction and sentenced recorded by the trial Court against the appellant- Leeladhar for commission of offence under Section 313 of the IPC is set aside he is acquitted of the offence . >±Ja Judge