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TMI Blog1969 (7) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... Mst. Radha at Jodhpur to cause the miscarriage of one Miss Atoshi Dass alias Amola, who as a result of administration of tablets and introduction of laminaria dento by the said Mst. Radha, died on May 1, 1963. The case for the prosecution is that in about the years 1962-63, the appellant was the President of Gramotthan Pratishthan at Jalore. Miss Atoshi Dass was a teacher working in Indra Bal Mandir, Tikhi, an institution under the management of the appellant She was young and unmarried. Illicit relationship developed between the aforementioned Atoshi Dass and the appellant as a result of which Miss Atoshi Dass became pregnant. With a view to cause abortion of the child in her womb, the appellant took Miss Dass to Jodhpur and there attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en false evidence in several respects. But as regards the illicit relationship between the appellant and Miss Atoshi Dass, her evidence receives material corroboration from the evidence of P.W. 7, M.B. Sen and P.W. 5, Misri Lal. Further it also accords with the probabilities of the case. It is not necessary to go into that question at length as we have come to the conclusion that the appellant is entitled to an acquittal for the reasons to be stated presently. 7. While we are of opinion that there was illicit intimacy between the appellant and the deceased, we are unable to accept the assertion of Miss Chhayadass that the appellant was her only paramour. Exh. D. 3 conclusively proves that the deceased had illicit relationship with one So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Mr. and Mrs. Sengupta. Hence the circumstance that the appellant and the deceased went together to Jodhpur on April 24, 1963, cannot be held to be an incriminating circumstance. 9. This leaves us with the evidence relating to the actual abetment. On this aspect of the case the only evidence brought to our notice is the evidence of Miss Chhayadass and the letter Ex. P. 4. Miss Chhayadass deposed in the trial court that when the pregnancy of the deceased became noticeable, the appellant told the deceased in the presence of that witness that he would get the child aborted through Mst. Radha. As mentioned earlier Miss Chhayadass is a highly unreliable witness. She had admitted in the committal court that she had been tutored by the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the rule laid down by the Judicial Committee in Pakala Narayana Swami v. Emperor We have not thought it necessary to go into that question as in our opinion the contents of the said letter do not in any manner support the prosecution case that the appellant instigated the deceased to cause miscarriage. The letter in question reads thus : Santi Bhawan 28-4-63. I went with your letter to the father. Since I could not get money from him, I dropped you a letter. I went to Mst. Radha and asked her to give me medicine. I further said that the money would be received. She gave me a tablet and told me that injection would be given on receipt of full payment. This tablet is causing unbearable pain and bleeding but the main trouble will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... miscarriage. No other evidence has been relied upon either by the trial court or by the High Court in support of the finding that the appellant was guilty of the offence of abetting the deceased to cause miscarriage. 13. For the reasons mentioned above we are of the opinion that there is no legal basis for the conviction of the appellant. 14. The learned Counsel for the appellant challenged the conviction of the appellant on yet another ground. As mentioned earlier he was charged and tried for the offence of abetting Mst. Radha to cause abortion of the child in the womb of the deceased but curiously enough he was convicted for abetting the deceased to cause miscarriage. Abetment as defined in Section 107 of the I.P.C., can be by inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Gallu Sah v. The State of Bihar 1958CriLJ1352 relied by the High Court is distinguishable. Therein Gallu Sah was a member of an unlawful assembly. He was said to have abetted Budi to set fire to a house. One of the members of the unlawful assembly had set fire to the house in question though it was not proved that Budi had set fire to the house. Under those circumstances this Court held that the offence with which Gallu Sah was charged was made out. As observed by Calcutta High Court in Umadasi Dasi v. Emperor I.L.R.Cal. 112 that as a general rule, a charge of abetment fails when the substantive offence is not established against the principal but there may be exceptions. Gallu's case was one such exception. 15. For the reasons men ..... X X X X Extracts X X X X X X X X Extracts X X X X
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