KAMALU DIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been directed against the judgment dated September 26, 1973 of the learned Additional Sessions Judge, Gangapur City whereby he acquitted the appellant under Section 302/199 IPC, but convicted him under Section 314, Para 1, IPC, and sentenced him to seven year's rigorous imprisonment and a fine of Rs. 2000/ - in default of the payment of which to undergo rigorous imprisonment for a further period of six months.

(2.) THE prosecution story in nutshell is that Ram Khilari had two sons Radheysham and Ghanshyam. Radheyshyam was married to Smt. Mahadevi, and his younger brother Ghanshyam was married to Smt. Sri Bai. It is alleged that prior to the marriage of Smt. Mahadevi she was in illicit intimacy with Gajanaod (since acquitted) as a result of which she became pregnant Radhey Shyam later on came to know of this fact and as such he refused to bring her back from his father in law's place. A few days prior to the abortion Gaja Nand and Kalyan conspired to relieve Smt. Mahadevi of the burden of the illicit child. Kalyan managed to bring the younger brother, of Radheyshyam viz. Ghanshyam with him and thereafter the accused Gajanand, Kalyan and Ghanshyam brought Smt. Mahadevi to Hindaun. She was taken to the shop of Dr. Kishorilal, a private practitioner at Hindaun, for abortion but he refused to oblige them. Motilal (PW 3), a compounded, at the shop of the doctor was also present at the time the doctor was approached. The accused Gajanand, Kalyan (since acquitted) and Ghanshyam (PW 11) took her to the house of the appellant. It is alleged that later some time PW 3 Motilal met them at the house of the appellant, who later on after persuasion agreed to abort the child. He gave her certain medicines on account of which abortion took place in the night at about 9 p.m. and she gave birth to a dead female child which was removed by Rahim Bux (since acquitted) Smt. Mahadevi suffered from profuse bleeding as a result of which she died. The dead body of Smt. Mahadevi was secretly buried in the house of appellant Kamaluddin.

(3.) MR . Ganpat Singh Mehta, learned Counsel for the appellant has also tiled the conviction of the appellant on the ground that the prosecution evidence adduced in this case it not reliable and suffers from a number of infirmities. PW 11 Ghanshyam is an approver whose evidence is inherently unreliable. He made contradictory statements during the trial and as such his evidence can not provide a solid foundation for convicting the appellant. PW 3 Motilal was also an accomplice. One tainted evidence can not corroborate another tainted evidence. The evidence produced to corroborate it was neither sufficient nor cogent to connect the appellant with the crime. The Public Prosecutor appearing on behalf of the State has canvassed for the correctness of the view taken by the learned Additional Sessions Judge.