HIGH COURT OF CHHATTiSGARH AT BILASPUR (SB: Hon'bte Mr. T.P.SHARMA, J) Crimina! Appeai No.1835 oT 1991 Motlial and another Vs. The Stats of Madhya Pradesh (now Chhattisgarh) POST FOR PROUNCEMENT OF THE JUDGMENTON 19/8/2010 Sd/- T.P. Sharma Judge y •!;• •• —i:<-.:..^- 1 HSGK COURT OF CKHATTiSGARH AT BiLASPUR Criminai ARpeaS No.193S of 1991 Appeiiants 1, Motilai s/o Kartik Ram Sahu agsd 25 years, Taiior R/o Dydhava, Police Outpost Dudhava P.S. Narharpur, Distt.Bastar (MP) (Now CG). 2. Rajobai wife of IVIangturam Ganda aged 55 years, Agriculturtst, R/o Ghotiyawahl, Poiice Outpost Dudhava P.S. Narharpur, Distt.Bastar (MP) (now CG). Versys The State of Madhya Pradesh (Now Chhattisgarh) (CriminaS Appeai under Section 374 (2) ofthe Cr.P.C.) (SB: Hon'bie Mr. T.P. Sharma,J.) 1. Mr.V.C.Ottahwar with Mr.Rajeev Shrivastava, counsel for the appeliants, Mr.Rakesh Kumar Jha, Deputy Government Advocats for the State. 2. (Delivered on 18'" August, 2010) Chailenge in this appeai is to the judgmentof convtetion & order of ssntence dated 19.11.1991 passed by the Additionai Ssssions Judgs, iastar, in Sessions Tria! No.276,'90, whereby & whersunder iearned Additionai Sessions Judge after hoiding the appeiiants gu'iity for the offence punishabie under Section315 of the i.P.C. sentsnced them to undergo R.l. for four years. Convfction is impugned on the ground fhat without there being any iota . - of evidencs,/1:he triai Court has cenvicted& senteneed the appeiiants as aforementioned and thereby committed itiegaliiy. ->^. 3. Case of fhs prosecuSion, in brisf, is thaf Hem Bai (PW-3) was having ilSteit reiation with appeiiant Motiial and as a result of such lUicit rsiation, she conceived, she intimated the factum of pr^nancy to appeilant Motilal. After 3 to 4 months of her pregnancy with a view to terminate , 8ie pregnancy of Hem Bai, appeliant hlotiial contacted with GO-accused Raio Bai v/ho introduced some medieine in the private part of Hem Bai, '.;^! 1 fc' .,)I<'f'1'Q< If?'^ -^ SSte^ s •^<il^ 4. 5. s. thersafter appeliant Motila! gave tabiet to her, as a rssult thsreof hsr pregnancy was terminated on 2.6.90. She buried foetus in her kitehen garders. Appeiiant Motilai Shreatened her for maintaining secrecy but thereafter on 9.6.90 she has iodged the F.I.R. vide Ex.P/4. Foetus was removed by panchnama vide Ex.P/5. Hem Bai was sent for medtoal sxamination vide Ex.P/2, she was sxamined by Dr.Smt.Hem Lata Sahu (Pi?V-2) vide Ex.P/2A and found the case of terminatioR ofpregnancy of about 10 weeks. Statements of ths witnesses were recordsd under Ssction 151 of the Cr.P.C. and after completion of investigation, chsrge sheet was fiied before the Judicial Magistrate First Ctass, Kanker, who in turn, committed the case to the Court of the then Sessions, Jagdaipur, from where isamed Aciditional Sessions Jucige, Bastsr received the case on transfer for triaK in order So prove the guiit of the accused/appeilants, ths prosecutton has examined as manyas ten wifnesses. Theaccused were examlned undsr Section 313 of the Cr.P.C. where they denled the circumstances appearing against them and pieadsd innocence and faise jmptteation in the crime in question. 6. After providing opportunity of hearing to the parties, leamed Addifional Sesslons Judge convtcted & sentenced the appeiiants as aforementioned. 7. i have heard iearned counsel for the parties, perused the jydgment impugned and record of the triai Court. Learned counse! for fhe appeliant vehemently argusd that in the present case except the evidence of Hem Bai (PW-3) v»hosspregnancy was termlnated,-- no other witnesses have supportsd the case of the / prosecutlon. Status of Hem Bai is of accomplice and her evldencs is fuli of coniradiction, omisston and sxaggsration. Her evldence rsveals that shs conceived and she herself has terminated pregnancy in a secrst manner and has buried the foetus for maintaining seerecy, but .thereafter on the basis of some ietter when tbe matter become public, then she has faiseiy impiicated the appeliants in the crime in question. "-.Leamed counsel further argued that evidence of accompiice requires 1 .<'{s"'<*,. ll'f"'- ^ ^•^' , ^ '^ .^,..^«y^."» corroborstion from independent sourees. Only evidence of accompiice is not safe to rely for convicting the appeiianis. 9. Learned counsel placed reliance in the matter of Sheikh Zakir v. State of Blhar1 in which the Apex Court has he!d that in case of raps with a grownup married woman cojroboration of factum of rape may be sought from an independent evidence and that of the details may be soughi from dirsct and cjrcumstantial evidence. Learned counse! further piaced reliance in She matter of ftfl.O. Shamsudhin v. Stats of Keraia in which the Apex Court has heid that in case of evidence of bribe-giver, corroboration is required from independent ^urces. Learned counsel aiso piaced reliance in the mater of R.K.Daimia and others v. The Delhi AdminisSration-' in which the Apex Court has heid that accomplsc0 need not aiways be pariicipes criminis, therefore, his svidence requires corroboration from independent sources. Learned counsst relied upon the matter of Hirdanbai and others v. Stats of Maharashtra in which the High Court of Bombay has held that evidence of prosecution witnesses fuil of contradictions and extremely unnaturs!, conviotion is not safe. 10. On the other hand, tearnsd State counsel supported the judgment impugned and argued that in the present case, Hem Bai (PW-3) is not aceompitee, she is a vlctim of the offence committed by the appeiiants and her evidence inspirss confldsnce, trustworthy and safe to reiy. Even otherwise her evidence finds corroboration from independent sources. After appreciating ths evidence avaitabie on record, ieamed triai Court has rightiy convicted & sentenced the appeifants as aforementioned. 11. in order to appreciate the arguments advanced on behaif of the parties, .i have examinQd the evidencs adducedon behalf of the prosecution. 12. in the present case, fectum qttermination of pregnancy of about 10 weeks has not been substantially disputedl by the appeilants, on the dther hand, othenwise aiso established by the evidence of Hem Bai (PiW-3) whose pregnancy has bsen terminated, Dr.Smt.Hemiata Sahu .:-;.?$1,983)4SC010 '2(1995).3SCC'35T: ?AiR*t§62SC1821 > 41996CRi.L.j.2585 .<nfc^,.i (PW-2) and her medteai examination report Ex.P/2A which reveal that Hem Bai was carrying pregnancy of about 10 weeks which has besn terminated prior to her examination. 13. As regards thecompiicity ofthe appeliants in the crime in question, the prosecution has reiied upon Ihe evsdence of solitary witness Hem Bai (PW-3) who has deposed in her evidence that she was having iliicit relation ihat appeitant Motilal and as a resuit of such iiticit reiation she conceived, then she Informsd Motltal about her pregnancy, Motitai told her that he wiii arrange for termination of her pregnancy, then he took hsr to viltage Ghotiyapars in the house of co-appeilanf Rajo 3ai whom he informed, Rajo Bai took Rs.300/- from appsilant Motiial and iniroducsd some msdicine in her private part and directed that within three to four hours pregnancy wili be tenninated. Agaln IViotiiai gave cne tablet for termination of pregnancy. Thereafter, bstween 2 to 2.30 at night her pregnancy was terminated. She separately buried ths foetus after termination of pregnancy. She again informed the fact to appeliant Motilai, then appsiianf IVSotiiai directed her thaf notto teil this fact to any person. Thereafter her reiative Vishssar received ietter from some person containing iliteit reiation with appeilant Motiiai and termination of pregnancy. Vishesar inquired her whom she told the entire incident, thereafterviilage meeting was convened. Motiia! was aiso preseni in the rr.eeting where she informed the members of fhe panchayat. Members of the panchayat also asked to Motilal but he denied the aforesaid fact. 14. Sukhman Lal (PW-1), Sahdev Ram Nag (PVV-4), fagu Ram @ Ram Bharos (PW-6), father of Hem Bai and Chhedi Lat Netam (PW-7) have deposed in their svidences that after terminafion of pregnancy of Hem Bai, village meeting was convened. !n fhe viilage meetjng, Hem Bai informsd that^he was having illicii reiation with Motijal and as a resuit of such reiation, she concsived-and her pregnancy was terminafed by Motilal and another woman of viilags Ghotiyapara. They have furiher deposed that Motilal was aiso prssent in the mseting,they interrogated Motilai, but Motiial denied the aforesaid fact. :35. As p.er evidence of the proseeution wltnesses, appdiant Motiia! haet "<tsnted the aiiegation made by Hem Bai in its inception i.e. from the ;i»\ KSS K date of alleged panchayat. As perevidence of Hem Bai (PW-3) and F.I.R. Ex.P/4, previously she did not know co-appeilant Rajo Bai whois not resident of her viilage Dudhawa and resident of viliage Ghotiyav/ahi, away from Dudhawa. The prosscution has not Gonducted any ideniification of co-accused Rajo Bai,even the prosecutioR has not examined any witness to show that Hem Bai has travsltsd from her house to viiiage Ghotiyawahi aiong with appeiiant Motiiai. She has lodged the report on 9.6.90 and the prosecution examined her on 15.3.91. !n the absence of any c6rrot)oration relating to ideniity of Rajo Bai, the only evidence of Hem Bai which is contradictory to her F.i.R. Ex.P/4 relating to identity is not safe to rely. 1d. In the prssent case, on!y evidence of Hem Bai (PW-3) is remsin for consideration reiating to roie attributed to appelianf Motilal. Hsr evidence reveais Shat she has concealed her reiation with Motilal. She has concsated the factum of temiination of pr^nancy and has conceaied and sscret disposal of foetus. This is not a case in which she was not agree for terminationof her pregnancy and Motiiai has without her consent caused termination of her pregnancy with the heip of Rajo Bai or other person. 17. As held by the Apex Court in the matter of M.G. Shamsudhin ^supra), distinction between a person who offers a bribe toachieve his own purpose and one who is forced to offer bribe under coercion, former can be treated as an accomplice whiis the iattsr should be treated as an interested witnsss whose evidence requires corroboration in a generai way and not in materiat particuiars. In the present case, svidence of Hem 3ai (PW-3) ciearly reveats ihat she herseif was interssted for termination of pregnancy and has achisved in her aim, therefore, Hem Bai can be safeiy treatsd as an aecompiice. f . ' . ' . . 18. As heid by the Apex Court in the matter of R.K.Dainua (supra), accomplice need not alv/ays 6e "participes criminis" like present case. 19. As heid by the Apex Court in the matter of Sheikh Zakir (supra), in case of rape wifh a grown up married woman corroboration offactum of raps may be sought from an independent evidence and that of ihe ^etails may besought from direct and circumstaRtiai evidsnce. in the Dresent case. evidence of Hem Baj (PW-3) and her conductwiii be that /''" i-} •it,. ... ^ -.^ ? ^/ T .s^ 6 she herself was intsrested for termination of her pregnancy. AppslSant Motilai and co-appeliant Rajo Bai have not admitted their association in commission of the crime. Motila! has denied the aforesaid circumstancs since inception i.e. from the date of afieged panchayat meeting. of 20. Conviction of the appeilants is substantiaity bassd on the evidence Hem Bai (PW-3). Even after termination of pregnancy shs has conceaied the fact and when it become publto by ietter, then first ttme she had told the name of appeilant Motilai and has iodged the F.i.R. after 7 days of such termination of pr^nancy. in these drcumstances, evidence of Hem Bai is fuil of suspicious. She can be freated as an accompiice. In the present case, her soHSary statement is not safe to rsiy without fyrther corroboratibn from independent sources. The prosecution has not coliected any other evidence to corroborate the testimony of Hem Bai (PW-3). Oniy on the ground of grave suspicion, the appeiiants can not be convicted. 21. Whiie convicting and sentencina the appeiiants, fhe triat Court has not considered the evidentiary vaiue of Hem Bai (FW-3) andthe fact that her evidence is not naturat and thereby committed iiiegaiity. 22. For the foregoing reasons, the appea! is ailowed. Conviction & sentence ofthe appsiiants under Section 315 of theS.P.C.ars hereby set aside. They be set at iiberty at once. Sd/- T.P.Shar?na Judge -. /