HIéH COURT OF CHHATTISGARH‘ BILASPUR Crimina! A ea! No.50 of 1992 Kmnfi Kumar Ra'rhiya S/o Budhmm Rafhiya aged abou‘!’ 23 year-s residence of Jhagur‘pur Thcna Lailunga disi‘g‘icf Raigm‘h. Versus Pradesh (now Chhaffisgurh) Th rough Smtion House Off§cer, Laiiunga‘ {Aplped under Secfion 374 of The Code of Criminal Procedure, 19'73} (@' APPELLANT: RE$PON$ENT: S’ra're of ‘Madhya v 1 1 x r \ \ ‘ V ‘ resen-I': P i Mr Sum! Sahu counsei for The appehan‘r Mr R R Smha Pond Lawyer for fhe S‘m‘re/respondenf Sinqle Bench: Hon'ble Mr. T.P. shorma, J“ ORAL JUDGMENT (16-6-2010) .an 1. Challeh‘ge in Thi3 appeal is f0 The judgmen‘ivo‘f convicfion & order of sen’renhe da‘red 20-4-1992 passed by rhe 15’ Addi‘rionni Sessions Judge, Raigarh in Sessions Trail No 53/91 whereby 6: whereunder learned Additional Sessions Judge afier holding fhe appellani‘ gmliy for commisswn of offence under Sec’non 313 of ihe IPC senienced him To undergo RI. for five years. 2. Conviciiion is challenged on +he ground fhai wifhouf any cl‘i‘nching evidence, The Trial Cour‘f has convicl'ed d: seni‘enced ’rhe’ appellan‘l and Thereby commiflfed illegali‘iy. 3. Case of The prosecui‘ion m brief Is fha? complainant Phoolkunwar (PW—1) was havmg illiuT relafion wn'h The accused/appellan? and as a resuli' of such Illic1f rela‘non she conceived When she was havmg pregnancy of Six mon‘l’hs fhe appellanf adminis‘rered InJecfion hrough one Bhurva doc‘ror of Gosaidih and as a resuh‘ of such mJec‘hon pregnancy was Terminated on 31— 10-90. ; Phoolkunwar (PW-1) lodged wriTTen complainT vide EXP-1. She was K; a i Wm i i i l i i i l l medicaHy examined by .docfor‘s who found Tha'l' she was pregnant and her pregndncy was Terminated. Finaily, F.I.R. EXP—9 was recorded. " A'ffzr recording The sfafemen‘rs of wi‘messes charge shee'r was fiied befdre Judicial Magis’rra‘re Firs? Ciass, Gharghoda, who in furn, commi‘r'red ‘fhe base ’ro ihe Courtof sessions, Raigarh, from where iearnediAddi‘l-ionai Sessions Judge received 'ihe case on Transfer for 1'riai. z e wamn has examined 3esses. Tne accused was examinea under Section 3E3 Eof ‘rhe Cr.P.C. in which he denied fhe circumsfances appearing againsi" him,§pieaded innocence and faise irnplica‘rion. iV" i In o‘rder fo prove fhe guiif of The appeiiani, i i as many as I Affer affording oppor'runiiy of hearing 1'0 The pariies, iearned r’éia‘di‘rionai Sessions Eudge convicied & sem‘enced rhe agapeiiawas aforemen'rioned. i \ E have heard learned counsel for The par'iies, perused ‘ihe judgmen‘f and record of rhe friai Courr. Learned counsei for ”rhe appellan‘r vehemen‘l’iy argued ‘ihaf in fhe presen‘r case, vir‘ruaiiy iiiicif rela+ion of fhe appellan‘r & fhe complainanf has no? been subsfan‘i'ialiy dispufed, The oompiainanT was carrying pregnancy and heripre‘gnancy was fermina‘red. The only cruciai que’sfion for deferminafion of *i‘his case is whe‘rher The appelian‘i' was insfrumen‘mi in causing miscarriage w’ifhou‘i' The consent of The compiainan‘r i.e. Phoolkunwar (PW- 1). ‘ Learned counsel furTher argued ThaT as per The evidence of, com1plainanT Phoolkunwar (PW—1), aT The insTance ofjhe appellanT some docTor has adminisTered injecTion To The complainanT for TerminaTion of her pregnancy and finally her pregnancy was TerminaTed, buT her evidence clearly‘reveals her previous and subsequenT conducT which is maTerial in V This case To prove ThaT The appellanT is noT insTrumenTal in'TerminaTion of pregnancy of The complainaniwiThouT her consent 9. On lThe oTher hand, learned 5TaTe>counsel vehemenTly opposed The appeal and submiTTed ThaT The complainanT'hasVcaTegorically deposed in her evidence ThaT The appellanT has caused TerminaTion of her pregnancy ¢ V “"“ g wi'rhouf her will & consent and ‘rhereby he has commi‘Hed The offence punishable under See'rion 313 f The I.P.C. fhe mplainan'r and Dhankunwar' (PW-3) - mo‘rher of fhe complainanf have corroorm‘ed The evidnce of Phooikunwar (PW-1). Dr. Asha Pandey (PW— 11) hs deposed in her evdence 'rhaf ‘rhe compiainam‘ was carrying pregnncy and her regnanc was ferminafe by abor‘rion. pregnancy and affer administration of injec‘rion she fled wifh The appellan‘r (W Er} War Hm 17§ eh) and s‘rayed wifh him for long Time. This cieariy shows fhaf fhe compiainanT was consenfing parfy for such miscarriage. The pro‘secufion has nof made ‘rhe doc‘i'or or the complainan’r as accused, for such miscarriage; Whiie conyicfing The accused, 1’he Trial CourT has noT consider-led Therevidence of Phoolkunwar (PW—1) for deciding The facTum of consenTlm'ld fhereby commiTTed illegaliTyu ConvicTion of The appellanT is noT based on cogenT and reliable evidence sufficienT for convicTion. ConsequenTly, convicTion of The appellanT is noT susTainable under The law. *\\ \\\\ o co b e a i . a py d YW”); E 14‘ In *rhe resuh‘, 1'he upped is allowed. Convic‘rion 8i sen‘rence-of The appellani under Sec‘rion 313 of ‘rhe I.P.C. are hereby se+ aside and he is acqui'h‘ed of ‘ihe sqid charge. He be seT a? iiber‘ry forfhwijrh, if no? required in any ofher‘i case. 1 Sd/- ‘ ’ T. P. Sharma Judge “I.