Kiranpuri vs The State Of M.P.
2022 Latest Caselaw 8064 MP

                                -1-
                                             Criminal Appeal No.206 of 1999



          IN THE HIGH COURT OF MADHYA PRADESH
                            AT INDORE
                             BEFORE
             HON'BLE SHRI JUSTICE ANIL VERMA
                CRIMINAL APPEAL NO.206 OF 1999

 Between:-
 KIRANPURI S/O NARAYANPURI,
 AGED ABOUT 23 YEARS,
 OCCUPATION: AGRICULTURIST,
 R/O VILLAGE RANAYARA,
 P.S. KALUKHEDA, TEHSIL JAORA,
 DISTRICT RATLAM (M.P.)
                                       .....APPELLANT
 (BY SHRI SANJAY KUMAR SHARMA, ADVOCATE)

 AND

 THE STATE OF MADHYA PRADESH,
 THROUGH POLICE STATION KALUKHEDA,
 TEHSIL JAORA,
 DISTRICT RATLAM (MADHYA PRADESH)
                                                   .....RESPONDENT
 (BY SHRI HITENDRA TRIPATHI, DY. GA)
      This appeal coming on for final hearing this day, the court
passed the following:
                         JUDGMENT

(Delivered on this 20th day of June, 2022)

This appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the

Criminal Appeal No.206 of 1999

impugned judgment of conviction dated 6/2/1999 passed by the Additional Sessions Judge, Jaora, District Ratlam in Sessions Trial Case No.93/1998, whereby the appellant has been convicted under Section 314 of the Indian Penal Code, 1860 (for short "IPC") and sentenced to undergo 07 years RI with fine of Rs.2,000/- . In case of default in payment of fine amount to further undergo 5 months, rigorous imprisonment.

02- It is admitted fact that marriage of appellant with deceased Manjubai was solemnized about one and half year prior to the date of incident. On 19/01/1998 when Manjubai was seriously ill, she was brought to Jaora Hospital but after examination she was declared dead.

03- The brief facts of the case are that at the time of incident Manjubai was carrying 4-5 weeks pregnancy and her husband / appellant did not agree to give birth of a child. He pressurized Manjubai for abortion, but Manjubai was not agreed for the same. On 17/01/1998 appellant forcefully took Manjubai to the house of co- accused Umashankar and thereafter, co-accused Umashankar and Ramkanyabai without having any experience, ability and sufficient means, they have conducted miscarriage of Manjubai without her consent, due to miscarriage excessive blood was oozing out from her private part and she was brought in a serious condition to Jaora Hospital, where she was declared brought dead. Marg intimation

Criminal Appeal No.206 of 1999

report was sent to the police station Jaora and SDOP Vineet Kapoor after reaching at Civil Hospital, Jaora and prepared lash Panchanama of deceased. Dr. (Smt.) Bahal, Dr. B.L.Boriwal (PW-5) and Dr. I.L.Chandelkar jointly conducted the postmortem of deceased and found that the age of fetus was 16 to 20 weeks and it was inflated and congested. As per postmortem report mode of death is syncope due to hemorrhagic shock. The accused persons were arrested and after completion of entire investigation charge sheet has been filed before the JMFC, Jaora, who committed the case to the court of Sessions Ratlam. Later on case was transferred to Additional Sessions Judge, Jaora.

04- The trial Court on the basis of allegation made in the charge sheet framed the charges for offence punishable under Section 314 of the IPC against the appellant and other two accused persons. The appellant and other accused persons abjured their guilt and pleaded innocence.

05- In the trial Court, in order to bring home the guilt, the prosecution examined as many as 8 witnesses and placed Ex.-P/1 to P/16 on record. The defence of appellant and other co-accused persons is of false implication and same defence was taken forthwith in their accused statement recorded under Section 313 of Cr.P.C. The appellant did not examine any witness in his defence witness. The trial Court after due consideration of the evidence available on record

Criminal Appeal No.206 of 1999

convicted the appellant as referred herein above and acquitted other two co-accused persons.

06- Counsel for the appellant submits that the judgment of trial Court is contrary to law and facts on record, it is neither legal nor proper. The trial court was wrong in believing the prosecution witness and discarding the defence version and also drawing unwarranted inference. The trial court was also wring in not considering the material contradictions, omissions and improvement in the evidence of prosecution witnesses. The prosecution has failed to prove its case beyond reasonable doubt. Dr. Boriwal himself admitted that he is not a Gynecologist, no expert medical witness was examined by the prosecution. Gangabai was the interested witness. Therefore, it is prayed that the present appeal be allowed and the appellant be acquitted from the charges.

07- Per contra, learned Panel Lawyer for the respondent / State has supported the order of conviction by submitting that the learned trial Court on proper appreciation of the evidence has recorded the conviction and the same does not call for any interference. 08- Heard learned counsel for the parties and perused the record of the trial Court with due care.

09- It is established law that to bring home the offence under Section 314 of IPC the prosecution must prove that (a) the concerned woman was pregnant; (b) that the accused did some act which

Criminal Appeal No.206 of 1999

induced her abortion or caused her to miscarry; (c) that the accused did so with the intention to let her abort; (d) that such act resulted in the death of the concerned woman.

10- In the present case, mother of the deceased Gangabai (PW-2) stated in her statement that prior to one month of the incident her daughter deceased Manjubai came at their home and she was carrying two months' pregnancy. Dr. B. L. Boriwal (PW-5) who conducted the postmortem examination on the dead body of the deceased Manjubai and stated that Rigor mortis was present over the neck part. She was wearing petticoat and underwear which was found blood stained and pad present beneath underwear was also blood stained and having blood staining over the perineum and found lacerated fetal placenta. It was also found that she was carrying 16-20 weeks pregnancy, which was aborted. As per their opinion, mode of death is syncope due to hemorrhagic shock and the postmortem report (Ex.-P/8) was sent by him.

11- Although Dr. Boriwal (PW-5) himself has admitted that he is not a Gynecologist, but postmortem was jointly conducted by Dr. Smt. Bahal and Dr. I. L. Chandelkar. During the cross-examination of the Dr. Boriwal, appellant did not challenge the factum of pregnancy of deceased, therefore, on the basis of the statement of Gangabai (PW-2), Dr. B. L. Boriwal (PW-5) and Postmortem Report (Ex.-P/8) it is established that at the time of death Manjubai was pregnant.

Criminal Appeal No.206 of 1999

12- Rajesh Kiyawat (PW-1) stated in his statement that Blaupuri informed him that his brother Kiranpuri's wife is seriously ill and she is required to taken to Jaora. Then he took her to Jaora Hospital in his Jeep and at Jaora Hospital Doctor declared her dead. Rajesh Kiyawat turned hostile and not supported the case of the prosecution. He also contradict averments of his police statement (Ex.-P/2). 13- The mother of the deceased Gangabai (PW-2) also stated that she had seen her daughter Manjubai in dead position, but she did not know how the death of the Manjubai was occurred. She also turned hostile and contradict her earlier police statement (Ex.-P/3). No other witness of the fact was examined by the prosecution. It is noteworthy that Dr. B. L. Boriwal (PW-5) is not a Gynecologist but no expert Gynecologist was examined by the prosecution. Dr. Boriwal stated in his statement and postmortem report (Ex.-P/8) that he did not seized the pad and parts of the fetal over the vagina and uterus of the deceased. Even he did not disclosed the size of the fetus. It is unfortunate that parts of the fetus and viscera, which is material evidence was not collected by the doctor and it was not sent to Forensic Science Laboratory for its chemical analysis. Therefore, there is no medical evidence available on record to prove that the deceased Manjubai died a homicidal death or she died due to any act on the part of the appellant while doing the abortion. 14- It is also noteworthy that in the present case co-accused

Criminal Appeal No.206 of 1999

Ramkanya and Umashankar were also prosecuted under Section 314 of the IPC for causing miscarriage of the deceased Manjubai, but prosecution has failed to prove the case against both the co-accused persons. Therefore, in absence of the cogent evidence both the co- accused persons were acquitted by the trial Court. Therefore, in the facts and circumstances of the case and on the basis of the fact that on the same set of the evidence other two co-accused persons have been already acquitted, the appellant also deserve for the same relief because nothing has been bring on record that the appellant did any act with an intention to cause miscarriage of her wife deceased Manjubai that such act cause the death of Manjubai. 15- In the present case the deceased was bonafidely brought by the appellant to the Hospital then she was declared dead than mother of the deceased was called but she stated nothing against the appellant in respect of the aforesaid offence. Therefore, in absence of the evidence it is not proved that the appellant instigated other co-accused persons to cause miscarriage to her wife. Hence, appellant cannot be convicted for abetting other co-accused persons to cause such miscarriage.

16- The Hon'ble apex Court in the case of Balak Singh Vs. State of Punjab reported in 1975 Cri LJ 1734 has held as under:-

"On the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses it is not possible to reject the prosecution case with respect

Criminal Appeal No.206 of 1999

to the four accused (acquitted by High Court) and accept it with respect to the other five accused-appellants. If all the witnesses could in one breath implicate the four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to five appellants may have been conveniently made to suit the needs of the prosecution, case having regard to the animus which the witnesses bore against the appellants. In these circumstances the case of the appellants cannot at all be distinguished from that of the four acquitted accused in any respect. If the case against the four accused fails then the entire prosecution will have to be discarded and it will not be possible for the Court to make out anew case to convict the appellants."

17- Considering all the facts and evidence available on record, there is no hesitation to held that prosecution has failed to prove the charges against the appellant beyond reasonable doubt, therefore, the present appeal is allowed and conviction of the appellant under Section 314 of the IPC is hereby set aside. The appellant / accused is acquitted from the charge under Section 314 of the IPC. Appellant is on bail, therefore, his bail bond stands discharged. Fine amount, if any, deposited be returned back to the appellant. 18- Let a copy of this judgment along with the record be sent to the trial Court concerned for information and its compliance. 19- With the aforesaid, appeal stands allowed.

Certified copy as per rules.

(ANIL VERMA) J U D G E Tej Digitally signed by TEJPRAKASH VYAS Date: 2022.06.20 18:12:32 +05'30'