IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 65 of 2005 Date of Decision : December 8, 2011 State of Himachal Pradesh Appellant Versus Smt. Ahmed Ravina Khan W/o Sh. Ahmad Fahim Khan, R/o House No. 80/94, Kuli Bazar Kanpur, P. S. Alwar Ganj, Kanpur (U.P.) at present Public Clinic Manpul, Police Station Nadaun, Distt. Hamirpur, H.P. Accused/Respondent Appeal under Section 378 of the Code of Criminal Procedure against the impugned judgment of acquittal dated 27.8.2004 passed by the Ld. Presiding Officer, Fast Track Court, Hamirpur, H.P. in Sessions Case No. 2 of 2001/13 of 2002/8 of 2004, under Section 314 I.P.C. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Sr. Addl. Advocate General for the appellant/State. For the respondent : Mr. Anoop Chitkara, Advocate, for the respondent-accused. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 23.5.1998 accused was put to trial. In terms of judgment dated 27.8.2004 passed by the Ld. Presiding Officer, Fast Track Court, Whether reports of Local Papers may be allowed to see the judgment? 2 Hamirpur, H.P. in Sessions Case No. 2 of 2001/13 of 2002/8 of 2004, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that deceased Smt. Sushma Kumari, daughter of Smt. Amaravati (PW-3) was married to Sh. Vikramjeet (PW-1) who used to work in the Telecom Department, Government of India and was posted at Delhi. Through the marriage two children were born. Sometime in the year 1998 deceased again conceived a child. However the couple decided to terminate the pregnancy and accordingly on 18.5.1998, PW-1 alongwith his wife, i.e. the deceased went to the clinic of accused at Manpul. They paid money to the accused, who made entries in the register maintained in the clinic and inserted certain medicine into the body of the deceased. The couple again visited the clinic of the accused on 20.5.1998 when again certain medicines were inserted into the body of the deceased. Thereafter on the asking of the accused they again visited the clinic of the accused on 23.5.1998. On that day deceased was accompanied by her husband (PW-1) and her “devraani” (wife of brother of PW-1) Smt. Veena Devi (PW-2). Same day child was aborted by the accused who prescribed certain medicines to be taken by the deceased. PW-1 took the deceased to his house and after taking her to the place of his in-laws for a day on 26.5.1998, left for Delhi on 27.5.1998. He on 4.6.1998 spoke with the deceased on telephone and was told that she was not keeping well and taking treatment from the accused. Accused had also injected glucose to her. On 5.6.1998 deceased was brought to 3 the house of her parents and since she was not well local Doctor was called who also gave certain medicines. Her condition did not improve hence she was taken to the CHC, Nadaun for treatment where she died. PW-3 lodged complaint (Ext. PW 14/C) with the police against the accused. F.I.R. No. 49/1998 (Ext. PW 10/A), dated 6.6.1998 was registered at Police Station Nadaun, Distt. Hamirpur, under Section 314 IPC. Police commenced investigation. Post mortem of the dead body was got conducted through Dr. Rajinder Kumar (PW-8) who issued Post Mortem Report (Ext. PW 5/A) and gave opinion (Ext. PW 5/B) about the cause of death which was septicaemia. Inquest report (Ext. PW 14/D) was prepared. Police carried out search and seizure operation of the clinic of the accused and seized records and instruments. Documents were sent to the handwriting expert after obtaining specimen signatures of the accused. The opinion of the handwriting expert was obtained by the police. The opinion of the Forensic Science Laboratory was also obtained by the police. With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 314 IPC to which she did not plead guilty and claimed trial. 4. In order to prove its case, in all prosecution examined 14 witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded. 4 5. Appreciating the material on record Trial Court acquitted the accused. Hence the present appeal. 6. That Smt. Sushma Devi died as a result of septicaemia is not in dispute. In any event it stands proved by Dr. Rajinder Manhas (PW-12) who was posted as B.M.O. Nadaun and had medically examined the deceased on 6.6.1998. Also post mortem conducted by Dr. Rajinder Kumar (PW-8) who gave his opinion (Ext. PW 5/B) establishes this fact. 7. In order to prove guilt of the accused prosecution has to prove by leading clear, cogent, convincing and reliable evidence, the fact that the accused had intentionally caused miscarriage of the child carried by the deceased which in fact resulted into her death. 8. In our considered view, in this regard two versions have come on record. Smt. Amaravati (PW-3), mother of the deceased and Sh. Onkar Singh (PW-7) state that it was a case of miscarriage, whereas as per the version of the husband (PW-1) and sister-in-law (PW-2) it was case of abortion. We find the 2nd version not to have been fully established by leading clear, cogent, reliable and trustworthy evidence. 9. According to the testimony of mother of the deceased i.e. Smt. Amaravati (PW-3) miscarriage occurred as the deceased had fallen down while working in the fields. Undoubtedly this witness is declared hostile and cross examined by the Public Prosecutor. She was the complainant. She was extensively cross examined by the Public Prosecutor yet we do not find anything in her deposition 5 which would prove the prosecution case. This witness admits it to be true that police had obtained her signatures after her statement was recorded by them of their own. Significantly there is uncontroverted statement of this witness to the effect that PW-1 himself had come to leave the deceased and threatened to divorce her. So something was a miss between the parties or else why would a mother falsely depose in a case pertaining to death of her daughter. 10. Also this version of hers stands corroborated by uncontroverted testimony of another witness namely Sh. Onkar Singh (PW-7) who states that “It is correct that I was told by the mother of the deceased that she miscarriaged the child by fall, while working in the fields. It is correct that the mother of the deceased told that after the miscarriage of the child her daughter was not feeling well and today she was very serious so she is to be taken hospital”. Now it is the case of the prosecution itself that some one from the house of the husband had dropped the deceased at her mother’s place and seeing her condition not to be good, local Doctor was called for treatment. This only renders the prosecution story of abortion carried out by the accused to be doubtful. 11. To establish the fact that child carried by the deceased was in fact aborted by the accused in her clinic prosecution has relied upon oral statements of PW-1 and PW-2 and documentary evidence i.e. report (Ext. PW 11/A) of the handwriting expert and the register (Ext. P15) maintained by the accused. On the question of 6 documentary evidence we find the findings returned by the Trial Court to be convincing. They read as under:- “19. PW-13 is Sh. Mohinder Singh, Assistant Govt. Examiner of Questioned documents. He has proved on record opinion of the handwriting expert Ext. PW 11/A. He has compared the specimen writings of the accused stamped and marked S1 to S14 i.e. Ext. PW 11/1 to Ext. PW 11/14. The same have been compared with the entries Ext. PW 13/2 in register Ext. P15. He has come to the conclusion that these specimen writings Ext. PW 11/1 to Ext. PW 11/14 tally with the writing Ext. PW 13/2 in register Ext. P15, meaning thereby that the accused is author of the entry Ext. PW 13/2 contained in register Ext. P15. There is no dispute to this effect because there is nothing in the cross-examination of this witness. It will not be out of place to mention here that perusal of the entry in Ext. P15 marked as Q1 & Q2 is of no help to the prosecution because only Sushma has been written in it. There is no address of this Sushma. There is also no parentage or name of her husband and her complete address are not mentioned in this register. So, it is not sufficient to link that the accused had conducted abortion or miscarriage of the ceased on 18.5.1998. Had there been complete address of the deceased, then the thing would have been otherwise. So, no benefit can be taken by the prosecution from the statement of this witness at this stage.” 12. Now there is nothing on record to show that such findings are erroneous, perverse or not borne out from the record. 7 13. Coming to the ocular evidence we find testimonies of PW-1 and PW-2 not inspiring confidence. No doubt in their examination-in- chief they have supported the prosecution case but we find that there are inherent contradictions in their testimonies. Also they are not corroborated by any other evidence, which in the instant case was necessary. In Court, PW-1 states that he had taken his wife to the clinic of the accused along with PW-2 in a ‘tralla’ whereas according to PW-2 they had travelled in a jeep. This may be a minor contradiction but when viewed in totality it acquires significance. PW-2 states that after termination of pregnancy on 23.5.1998, deceased continued to remain in the house of her in-laws which fact stands contradicted by PW-1 according to whom he had left the deceased at her parental house only on 26.5.1998. PW-1 and PW-2 are not residing together or have a joint kitchen. It only shows that PW-2 had in fact never accompanied PW-1 and the deceased to the clinic or was aware of all developments leading to the alleged abortion or treatment given to the deceased thereafter. 14. Further version of PW-1 that on 4.6.1998 he had spoken with his wife on telephone from Delhi and was told that she had taken further treatment from the accused does not appear to be true. Undisputedly there was no telephone connection at the parental house of the deceased, or for that matter house of PW-1 or PW-2. According to PW-1 he had spoken with the deceased on the telephone installed in the house of the neighbour. Now surprisingly he does not remember the name of such neighbour. This witness is 8 an employee of the telephone department. Least that is expected of him to know is the name and telephone number of the neighbour. Hence his version that accused aborted the child does not appear to be true. Also he has not produced any medical prescription. He is a Government employee. Also whether he claimed reimbursement of the expenses incurred by him for getting his wife treated even after abortion is not clear from the record. Whether he was in the village at all or not is also not clear. No leave record has been produced to show his presence in the village between 18.5.1998 up till 27.5.1998. 15. The doctors have also opined that in cases of miscarriage by fall there is possibility of septicaemia being developed. The Investigating Officer i.e. Inspector Mehar Chand (PW-14) admits that during his investigation nothing could come out as to from where the deceased had taken treatment between 26.5.1998 up to 4.6.1998. This also falsifies version of the prosecution that even post termination of pregnancy, deceased was treated by the accused. 16. Having perused testimonies of the prosecution witnesses we find that no case for interference is made out. It cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence. 17. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said 9 that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. December 8, 2011 (PK)