SHER SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE Additional Sessions Judge No. 1 Hanumangarh, by his judgment dated 26-11-1977 convicted the appellant Sher Singh of the offence under Sec. 304, Part II, IPC, and sentenced him to four years rigorous imprisonment and Dayawati, appellant No. 2, was convicted for the offence under Sec. 317, IPC and was given the benefit of probation.

(2.) THE prosecution case, in brief, is that on 9- 9- 1974 Mokam Singh (PW 4) who was serving in the railway as key-man, was coming from Hanuman-garh town to the Junction along with the railway line before the arrival of the 8 0' clock train. Near the bridge No. 5, Pillar No. 1, he found a shoe case lying inside Aak Plant. When he reached near the Aak Plant he heard the cries of a child. He opened the shoe case a little, then he found that a child in crying. Bahadur Ram (PW 5) was called and he asked him to remain there so that he may go and inform the police. Within an hour the police arrived and lifted the shoe case containing the child. THE child was taken by the police to the Hospital. That was a female child. At the Hospital the female child died. On Bahadur Ram's report (Ex. P/7), case under Sec. 317, IPC, was registered. THE child was admitted on 9-9-1974 at 11. 15, a. m. with the memo Ex. P/l, delivered by ASI Shri Ram Kishan of the Police Station, Hanumangarh town. THE child died at the Hospital at 3. 50, P. M. , on the same day. Post-mortem examination on the dead body of the child was conducted by Dr. Paras Mal Jain (PW 1 ). THE investigation was conducted. During the course of investigation, it was found that the appellant Dayawati gave birth to a female child in the clinic of Dr. Rajendra Kumar Sethi (PW 2 ). Sher Singh appellant No. 1, brought Dayawati at the clinic of Dr. Sethi through Shanker Lal (PW 7) and Yashpal PW 6. Dayawati delivered the child at about 5. 30 p. m. , and got the discharge from the clinic at about 6. 30, p. m. , on the same day, that is, on 8-9-1974. After completion of the investigation, charge-sheet was presented against the accused-appellants.

(3.) IN the result, the appeal of the appellant Sher Singh is allowed. His conviction and sentence (under Section 304, Part II, IPC) are set aside and he is acquitted of the offence under Sec. 304, Part II, IPC. However, the appeal] of Dayawati is dismissed. .