[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.99 OF 1992 The State of Maharashtra ]..Appellant Vs. Sou.Anjana Raghunath Mohite ] Age 20 years, r/o 1348, ] Ramling Khind Galli, ] Bangaum ]..Respondent .... Mr.P.A.Pol APP for Appellant-State Mr.Ganesh Gole Advocate for Respondent .... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JANUARY 06, 2009 DATE : JANUARY 06, 2009 DATE : JANUARY 06, 2009 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant-State of Maharashtra has preferred this appeal for enhancement of sentence awarded to the respondent-original accused no.2 by the learned 4th Additional Sessions Judge, Kolhapur in Sessions Case No.35 of 1991. 2. By judgment and order dated 19.10.1991 the learned Sessions Judge Kolhapur convicted the respondent under Section 315 r.w. 34 of IPC. However, considering the facts that she is a lady, she was very young, she was handicapped and the [-2-] other facts of the case, the learned Sessions Judge directed that she be released on executing a bond in the sum of Rs.1000/- for a period of one year with one surety from Kolhapur District in the like sum, she should keep peace and be of good behaviour during this period. According to the State, sentence of imprisonment ought to have been imposed on the respondent, hence, the State has preferred this appeal for enhancement of sentence. 3. It may be stated here at this stage that respondent had not challenged the conviction but it is only the State who has preferred this appeal for enhancement of sentence. 4. I have heard the learned APP for the appellant-original complainant and the learned advocate for the respondent i.e. original accused no.2. I have perused the impugned judgment and order as well as evidence and record. After perusing the same, I am of the opinion that the appeal deserves to be dismissed. 5. The prosecution case briefly stated is as under: [-3-] . That original accused no.1 Ganesh had sexual intercourse with the prosecutrix PW 1 on many occasions. Thereafter, prosecutrix became pregnant. The case of the prosecutrix is that thereafter Ganesh took the prosecutrix to the present respondent, the present respondent gave her two injections which caused abortion, hence, respondent has been charged under Section 315 of IPC along with co-accused Ganesh. 6. Charge came to be framed against the respondent under Section 315 of IPC. She pleaded not guilty to the said charge and claimed to be tried. Her defence is that of false implication and total denial. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted the respondent under Section 315 of IPC. However, instead of awarding sentence of imprisonment, the learned Sessions Judge directed that she be released on executing a bond in the sum of Rs.1000/- for a period of one year with one surety from Kolhapur District in the like sum, she should keep peace and be of good behaviour during this period. Hence, this appeal. [-4-] 7. The conviction of the respondent is solely based on the evidence of PW 1. The case of PW 1 is that she was taken by Ganesh to the Respondent. The Respondent gave her two injections, due to this abortion was caused. Though in her evidence, PW 1 has stated that the abortion was performed against her will, it is pertinent to note that this fact is an omission. In the FIR, she has not stated that she declined to have any abortion. From the FIR, it is seen that the abortion was not against her wishes. 8. Moreover, the case of the prosecutrix PW 1 is that the respondent gave her two injections and thereafter abortion took place. The defence taken by the accused is that the abortion took place as the prosecutrix had a fall from a tempo. This fact is supported by the evidence of PW 2 as well as the evidence of PW 5 who is father of the prosecutrix. The father of the prosecutrix has stated that Chairman PW 2 Pandurang brought his daughter to his house. Chairman informed him that his daughter Kamal fell while boarding the tempo. It is seen that abortion took place around that period. In [-5-] view of the evidence of father of prosecutrix and PW 2, defence taken by the accused that the abortion took place on account of fall from tempo appears plausible. 9. Even as per the prosecution case, the respondent was not known to PW 1 prior to that day. Thus, it is seen that the respondent was not known to the prosecutrix prior to the incident. The prosecutrix had seen the respondent for a short period of time when according to the prosecutrix, the respondent gave her two injections. As the respondent was not known to the prosecutrix prior to the incident, direct identification of the respondent by the prosecutrix in the Court, in absence of prior test identification parade, cannot be relied upon. 10. Thus, looking to the above facts, it cannot be conclusively said that it was the act of the respondent which caused the abortion and secondly, the identification of the respondent by the prosecutrix in the Court, cannot be relied upon. Looking to the above facts, I am of the opinion that the respondent deserves to be given benefit of [-6-] doubt as in my opinion the prosecution has failed to prove its case against the respondent beyond all reasonable doubts. 11. In the result, this Criminal Appeal is dismissed. The judgment and order of conviction and sentence imposed on the respondent vide judgment and order dated 19.10.1991 passed by the learned 4th Additional Sessions Judge, Kolhapur is set aside. Respondent is acquitted of the offence under Section 315 of IPC. 12. Appeal is disposed of. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]