2014 (9) TMI 1151 - HC - Indian Laws

Termination of pregnancy - abortion resulting to death - Rape Offence - legality of evidences - Section 10 of the Evidence Act - Held that - there must be prima facie evidence to give rise to reasonable believe that conspiracy existed between the accused persons in the first place before any act done or said by a conspirator would bind the other. Secondly, such act must be done or words spoken by the conspirator in the course of conspiracy and not after the same had been snapped, e.g., a conspirator having been caught and is in the custody of the police. No charge of conspiracy has been framed against the appellant. Even if such charge is presumed (as he is charged with the substantive offence while others having been charged with conspiracy to commit such offence) there is absolutely no independent evidence on record (except the purported aforesaid statement of the other accused persons) to show that the appellant had met the other accused persons or there was any agreement halted amongst them and the appellant to commit the crime. In the absence of such evidence it cannot be said that the first condition, namely, there are reasons to believe that there was a conspiracy between the appellant and other accused persons is established. In the instant case as prosecution had failed to establish prima facie existence of conspiracy between the appellant and the other accused persons, namely, Premananda & Jashomati, the statement of such accused persons before villagers after being caught cannot be admissible under Section 10 of the Evidence Act against the appellant. It is settled law that confessions of a co-accused is a corroborative piece of evidence and cannot be the sole basis of conviction - There is no evidence on record connecting the appellant to the abortion of the victim resulting in her death. Hence, he cannot be convicted on the basis of statement of a co-accused which has been retracted by them during trial. The prosecution case has not been proved at all on the basis of legally admissible evidence. No doubt there exists a strong suspicion against the appellant but suspicion howsoever strong cannot take the place of proof - the appellant acquitted of the charges levelled against him due to lack of cogent evidence - appeal allowed.

Summary

Issues Involved:
1. Conviction under Section 314 IPC read with Section 7(3) of the Medical Termination of Pregnancy Act, 1971.
2. Conviction under Section 201 IPC.
3. Admissibility of hearsay evidence and statements recorded under Section 164 CrPC.
4. Applicability of Section 10 of the Evidence Act.
5. Sufficiency of evidence to establish conspiracy.

Issue-wise Detailed Analysis:

1. Conviction under Section 314 IPC read with Section 7(3) of the Medical Termination of Pregnancy Act, 1971:
The appellant was convicted for performing an abortion that resulted in the death of the victim, Depali Roy. The prosecution alleged that the abortion was conducted by the appellant at the house of Kundeswari Barman, an Aya at Jamaldaha hospital. The postmortem report indicated that the victim died due to shock from uterine bleeding. However, the evidence linking the appellant directly to the abortion was primarily hearsay, as the witnesses did not directly observe the abortion being performed by the appellant.

2. Conviction under Section 201 IPC:
The appellant was also convicted for causing the disappearance of evidence related to the crime. The prosecution's case relied on the statements of co-accused and other witnesses who claimed that the appellant was involved in the abortion. However, these statements were not corroborated by direct evidence or the testimony of the witnesses during the trial.

3. Admissibility of hearsay evidence and statements recorded under Section 164 CrPC:
The court noted that the evidence of PW-1 to PW-8 was hearsay and could not form the basis of conviction. The trial judge erred in treating the statement of PW-13 recorded under Section 164 CrPC as substantive evidence, as the witness did not support this statement during the trial. The court emphasized that statements recorded under Section 164 CrPC cannot be treated as substantive evidence if the maker does not testify to those facts during the trial.

4. Applicability of Section 10 of the Evidence Act:
The prosecution argued that the statements of co-accused persons were admissible under Section 10 of the Evidence Act as they were made in reference to their common intention. However, the court held that for Section 10 to apply, there must be prima facie evidence of a conspiracy. The court found no independent evidence of a conspiracy between the appellant and the other accused persons. The statements made by the co-accused after being detained by villagers did not meet the criteria for admissibility under Section 10.

5. Sufficiency of evidence to establish conspiracy:
The court found that there was no independent evidence to establish that the appellant conspired with the other accused persons to commit the crime. The statements of the co-accused were not corroborated by other evidence, and the co-accused did not admit to making such statements during their examination under Section 313 CrPC. The court reiterated that a confession by a co-accused is only corroborative and cannot be the sole basis for conviction.

Conclusion:
The court concluded that the prosecution failed to prove the appellant's involvement in the abortion and the subsequent death of the victim based on legally admissible evidence. The conviction and sentence of the appellant were set aside due to lack of cogent evidence. The appellant was acquitted of all charges and discharged from his bail bonds. The appeal was allowed, and the judgment, along with the Lower Court Record, was sent to the trial court.