Nafr High Court
Case Details
ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.08.26 10:48:25 +0530 2025:CGHC:27511 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 763 of 2005 Gyan Das, S/o. Ranjit Das Mahant, aged about 30 years, Budhwari Bazaar, Rampur, Police Station – Kotwali, Korba, Haalmukaam, Bharnaud, District – Janjgir- Champa State Of Chhattisgarh through District – Korba (C.G.) Versus ---- Appellant --- Respondent ______________________________________________________________ For the Appellant : Shri Neeraj Mehta, Advocate. For State / Respondent
Legal Reasoning
before this Court in this appeal. 12. Learned Counsel for the appellant vehemently argued that the prosecution was unable to bring home guilt of the appellant beyond reasonable doubt. He submits that the prosecution was unable to prove the ingredients of Section 314 of the IPC. He submits that the allegation of administering the injection and medicine upon the deceased was against the acquitted accused persons - Pourbai and Madhusudan. On the basis of same set of evidence brought against all the accused persons, the other two accused were acquitted by the learned trial Court by the judgment dated 18/08/2005 whereas the the appellant was convicted. He submits that the learned trial Court relied upon the dying declaration of the deceased (Ex.P/3) in which she has only stated that she was inform by her neighbor that some madam provides medicine which causes the abortion and as my husband was not in home, I asked my brother-in-law (present appellant) to take her to the madam. Apart from this, he submits that there is no evidence against the appellant. He further submits that in order to slap a conviction under section 314 of IPC, the intention on the part of the accused is sine-qua-on. In case in hand, even if the dying declaration Ex.P/3 is accepted in-toto, it would not in mean that the appellant took the deceased to the said madam with an intention to cause abortion. Therefore, he submits that the conviction -4- of the appellant is bad in law, deserve to be set-aside while allowing the appeal, To buttress his submission he placed reliance upon the judgment passed by this Court in Cr.A. No. 33/2003, Rajesh Kumar Vs. State of Chhattisgarh & & Ors. Dated 16.01.2024. 13. Per contra, learned counsel for the respondent / State supports the impugned judgment. He submits that prosecution by cogent and prudent evidence, was able to bring home the guilt of the appellant beyond reasonable doubt. He submits that the dying declaration (Ex.P/3) of the deceased was duly proved and has rightly been relied upon by the learned trial Court. He submits that from perusal of Ex.P/3, it’s quite vivid that the appellant took the prosecutrix to the madam with an intention to cause abortion and therefore, his conviction under section 314 of IPC is well merited. He further submits that the prosecution could not prove the case against the acquitted accused persons beyond reasonable doubt and their identity could not establish to suggest that they are the person who administered injection and the medicine on the deceased – Rampyari Bai. Hence they were acquitted by the learned trial court vide judgment dated 18/08/2005. in the case in hand is that the case of the appellant is duly proved, therefore, there is no illegality or irregularity in the judgment impugned. Appeal sans merit and liable to be dismissed. 14. I have heard learned counsel for the parties and perused the record. 15. It is not in dispute that prosecution filed the charge-sheet against the accused person. The allegation of administering the injection and medicine upon the deceased Rampyari was against the acquitted accused Purbai and Madhusudan. The case of the prosecution is also that after administering the injection and medicine, deceased suffered abortion, however, her health was deteriorating and she was taken to Susaiyya Hospital and looking to the serious condition, she was referred to Medical College Hospital, Bilaspur where she underwent surgery and ultimately died on 17/07/2003. 16. From perusal of record it appears that a dying declaration - Ex.P/3 was recorded -5- recital of which is quoted herein below: i. rqeus xHkZ fxjkus ds fy, D;k fd;k esjs iMkslh us crk;k fd okss eSMe nokbZ djrh gS mlls xHkZ fxj tkrk gS esjk ifr ?kj ij ugh Fkk rks EkSus nsoj Kkunkl dks eq>s mlds ikl ys tkus dks dgkA ii. ml eSMe dk uke D;k Fkk eq>s ugh ekywe og dgk jgrh gS og mpb vLirky ds ikl jgrh gSA iii. fdrus fnu igys mlds ikl xbZ Fkh N rk dks iv. mlus D;k fd;k xHkZ fxjkus ds fy, mlus ikbi ls uhps ds jkLrs ls nok MkyhA v. nok Mkyus ds ckn D;k gqvk nks fnu ckn cPpk fxjkA mlds ckn EkS vPNh FkhA vi. vHkkh ;s gkyr dc ls gS nks fnu ls eq>s ‘’okl esa rdyhWQ gkFk iSj ‘’kjhj esa lwtu vk x;h gSaA vkt nksigj dks mlh eSMe us eq>s cksry Pk<kbZ ,oe nnZ dh lwbZ yxk;hA rch;r T;knk [kjkc yxus yxh rks ifr us eq>s ;gkW bykt ds fy, yk;kA eS ;g c;ku fdlh ds ncko esa ugh ns jgh gWwA 17. The learned trial Court vide analysing the evidence available on record, acquitted the co-accused persons as the prosecution failed to prove the case beyond reasonable doubt against them. The conviction present appellant is based upon the dying declaration tos ay that he took the deceased to the person where such medicines and injection was administered. A careful perusal of dying-declaration indicates that the husband of the deceased was not there. The deceased was informed by her neighbor that one madam provides medicines which causes the abortion. It also appears as husband of the deceased - Rampyari was not there, asked the present appellant to take her to the madam. It appears that following her request, he took the deceased to the said madam. No cogent and prudent evidence available on record suggest that the present appellant took the deceased with an intention to cause abortion. The serious allegation of administering injection and medicine was against the acquitted co-accused and the allegation against the present appellant is only with respect to taking the deceased- Rampyari Bai to them. 18. In order to sustain conviction under section 314 of the IPC, prosecution must -6- establish beyond reasonable doubt firstly a women was with child; Secondly – the accused did an act to cause miscarriage; Thirdly – He did so with such intention; Fourthly – Such act cause the death of a women established; and Fifthly – The act was done without women’s consent. This has been laid down by this Court in the matter of Rajesh Kumar (supra) in Cr.A. No. 1102 of 2004 in paragraph 16. 19. On perusal of record, the first ingredients that the women was having a child is not in dispute, the second ingredients that accused did an act to cause miscarriage, appears to be missing in the case in hand. The act which is alleged against the present appellant that he took the deceased to the madam. Therefore, it would not be safe to hold that the accused did an act to cause miscarriage. The third ingredients that the accused did such an act with an intention. It does not appears from the evidence gathered, the accused did the act with an intention, fourth ingredients that the cause death of the women has established and fifthly the act would be done without women consent appears to be missing. Because from perusal of the dying declaration it is quite vivid that the deceased who ask the present appellant to cause miscarriage and she was aware to the fact that she was been taken to a person who provides for medicine for causing the abortion. 20. Apart from this, in case of Rajesh (supra) it has been observed , in paragraph 21 and 23 are as under: 21) It is the submission of Mr. Surendra Singh & Mr. K.A. Ansari, learned Senior Counsel, that since the principal offence under Section 314 of the IPC is not established, conviction of appellants A-2, A-3 & A-4 for offence under Section 314 read with Section 109 of the IPC cannot be sustained and is liable to be set aside. (23) Since in the instant case, offence under Section 314 of the IPC against Rajesh Kumar (A-1), who is said to have caused miscarriage, is set aside and is acquitted of the said charge in the preceding paragraph, and since substantive offence is not established against A-1, -7- therefore, in light of the decision of the Supreme Court in Madan Raj Bhandari (supra), charge of abetment under Section 314 of the IPC against the present appellants - A-2, A-3 & A-4 fails and their conviction under Section 314 read with Section 109 of the IPC is hereby set aside, and they are acquitted of the said charge. 21. Thus this Court on analysis of record is considered opinion that the prosecution was unable to bring home the guilt of the appellant beyond reasonable doubt. Thus
Arguments
: Shri Shailesh Puriya, P.L. ____________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 24/06/2025 1. This appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC) has been filed by the appellant, assailing the legality, correctness and judicial propriety of the judgment dated 18/08/2005 passed by the Additional Sessions Judge, Korba, District – Korba (C.G.) in Session Trial No. 80/2004. 2. By the impugned judgment the appellant has been convicted for committing an offence under section 314(1) of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo R.I. for 05 years and fine to the tune of Rs.500/- and in default of payment of fine additional R.I. for 03 months was imposed. 3. Initially three accused persons namely - Pourbai, Madhusudan and Gyan Das were put to trial for an offence punishable under sections 312 and 314/34 of the IPC. 4. By the impugned judgment dated 18/08/2005, the other two co-accused - Pourbai and Madhusudan were acquitted from the aforesaid charges whereas the present -2- appellant has been convicted and sentenced as detailed in the first paragraph of this judgment. 5. Case of the prosecution, in nutshell, is that, name of the deceased in the case is Rampyari Bai. Her husband Firtudas (PW-9) had gone out prior to 06/11/2003. In his absence, accused/appellant - Gyan Das who is in her relation took the deceased - Rampyari Bai and children to his home. At that time, Rampyari Bai (deceased) was carrying pregnancy of about three months. It is also a case of prosecution that with an intention to cause abortion, accused /appellant took the deceased – Rampyari Bai to the nurse - Pourbai (acquitted accused) of MPEB, Korba. On the instruction of Dr. Madhusudan (acquitted accused) with an intention to cause abortion, Pour Bai (acquitted accused) has administered an injection and also administered medicine in the private parts of deceased – Rampyrai Bai. After two days of the same, deceased – Rampyari Bai suffered an abortion, however, after the abortion her health was continuously deteriorating. On 16//11/2003, Firtudas (PW-9) and accused / appellant took her to Sausayya Hospital, Korba. Looking to her serious condition, Dr. R. where Dr. Paliwaar (PW-2) referred her to Bilaspur Medical College and surgery was also performed but she did not receive any console / improvement in health and ultimately died there on 17/11/2003. On information being given by the Doctor a morgue was registered and postmortem of a dead body was conducted. The case was sent to City Kotwali, Korba for further investigation. 6. After registering the merge in Police Station – Korba, inquiry was conducted and upon finding an offence under sections 312 and 314 of the IPC against the accused persons, F.I.R. was registered vide Ex.P/12 and Ex.P/13. Investigation was set on motion. Statement of the witnesses were recorded. 7. After completion of the investigation, the charge sheet under sections 312 and 314 of IPC was presented before the Judicial Magistrate First Class against the accused persons. The case was committed to the Sessions Court who made over the trial Court for trial. -3- 8. A charge sheet under sections 314/34 of the IPC was framed against the appellant and the acquitted accused persons. They denied the charges and claimed to be tried. 9. Prosecution in order to establish its case, examined as many as 15 witnesses and exhibited as many as 19 documents. 10. Statement of the appellant as well as the other accused persons under section 313 of the Cr.P.C. were recorded in which they claimed their innocence and false implication. 11. On due consideration of the evidence available on record, the two accused persons - Pourbai and Madhusudan were acquitted by the judgment dated 18/08/2005 and the appellant was convicted and sentenced by the impugned judgment which is assailed
Decision
appeal is allowed. The impugned judgment is set aside. The appellant acquitted from all charges. 22. Since the appellant is reported to be on bail, his bail bonds shall remain in force for a period of six months from today in view of the provision of Section 481 of BNSS, 2023. 23. The record be sent back to the trial Court along with a copy of this Judgment for necessary compliance and information. Sd/- (Sachin Singh Rajput) Judge Ashish