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TMI Blog2014 (9) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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 Hence, he cannot be convicted on the basis of statement of a co-accused which has been retracted by them during trial.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 - a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ojabashi, Narkanta Roy and Manoranjan Barman brought the dead body of Depali Roy to the village and while they were proceeding to Asram, co-villagers restrained them. While being interrogated, they disclosed that Depali, the victim, had been taken to Dr. Pankaj Biswas, Medical Officer of Jamaldaha hospital for abortion. On 10.1.2006 around 12.30 a.m. Depali, the victim, was aborted in the house of Kundeswari Barman, Aya of the said hospital, by the appellant and expired as a consequence of such abortion on the said date. Pursuant to such written complaint lodged by PW-1, Haro Kumar Roy, Mekhliganj police station case No.05/2006 dated 12.1.2006 under section 302/314/34 of the I.P.C. was registered for investigation against Premananda Brojobashi, Jashomati Brajobashi and the appellant, Dr. Pankaj Biswas. `In conclusion of investigation, charge sheet was filed against nine accused persons including the appellant under section 493/376/314/201 of the I.P.C and 7 (3) of the Medical Termination of Pregnancy Act, 1971. The case, being a sessions triable one, was committed to the Court of Sessions, Mekhliganj and transferred to the Court of learned Additional Sessions Judge, Coochbehar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dical Termination of Pregnancy Act, 1971 and also sentenced him to suffer simple imprisonment for two years and pay fine of ₹ 5000/- in default to suffer simple imprisonment for two months more for the offence punishable under section 201 of the I.P.C., all the sentences to run concurrently. Jashomati Brajobashi was found not guilty of the offence under section 201 of the Indian penal Code and the other accused persons, namely, Narakanta Barman, Monoranjan Burman, Tinku @ Sudip Sarkar, Paltu @ Prasanta Kr. Sarkar and Papan @ Udayan Ghosh were acquitted of the charges levelled against them. Being aggrieved by such order and judgment for conviction and sentence, the appellant has preferred the instant appeal. Mr. Majumder, learned counsel appearing for the appellant submitted that the conviction of the appellant is not based on legally admissible evidence. He submitted that evidence of PW-1 to PW-8 is hearsay in nature and could not be formed the basis of conviction. He further submitted that the Trial Judge erred in law in treating the statement of PW-13 recorded under section 164 Cr.P.C. as substantive evidence although such witness did not support his statement under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the heart were also empty. Uterus was slightly bulky with few bits of clots into the uterine cavity. The death took place about 24 to 48 hours back from the time of P.M. examination. My opinion was that the death was due to shock due to Uterine bleeding. It is also deposed that such injury may be caused due to abortion. He has proved postmortem report as exhibit 14 and his reply to the questions by C.I.D. as exhibit 15. PW-26 stated that he was acting as superintendent and A.C.M.O.(H) of Mathabhanga S.D. Hospital at the material point of time. He stated that the appellant was a qualified Doctor and was attached as Medical Officer In-Charge of Jamaldaha P.H.C. from 7.1.2006 to 12.01.2006 and was not allowed to do private practice. PW-2 to PW-8 is relations and neighbours of PW-1, brother of the victim, Depali Roy. PW-1 is also the defacto-complainant in the instant case. He has submitted that accused Premananada Brajobashi is a disciple of Yagi Khudiram Brojabashi. He also their Guru . Premananda Brajobashi had developed an illicit relationship with Depali Roy, victim herein, and as a consequence thereof she had become pregnant. He deposed that on 7.1.2006 Premananda, Joshom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th their previous statements made to the Police Officer. They denied having made such statements. PW-15 is the wife of rickshaw van puller whose rickshaw van was utilized to bring the dead body of Depali to the Ashram. PW-16 is the scribe of the First Information Report. PW-18 has proved the date of birth of the victim Depali. PW-25 was the Magistrate who had recorded the statements under Section 164 of the Code of Criminal Procedure of various witnesses. He also recorded the confessional statement of accused Monoranjan Barman (since acquitted). PW-27 is the Police Officer attached to Mekhliganj Police Station who held the inquest over the dead body of the victim and prepared the inquest report. He also seized the wearing apparels of the victim containing blood stains. PW-28, PW-29 and PW-30 are the Investigating Officers of the case. It appears from the aforesaid evidence that the prosecution case suffer vital blow due to the fact that PW-10 to PW-14 did not support the same and were declared hostile. Let me analyse the evidence of the witnesses from Jamaldaha who have turned hostile. PW-10 stated she was residing within the compound of Jamaldaha Hospital. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein co-accused persons, namely, Premananda Brajobashi and Jashomati Brajobashi had stated that they have taken the victim to the appellant and the appellant performed abortion on her resulting in her death. The co-accused persons have not admitted making such statement to the witnesses during their examination under Section 313 of the Code of Criminal Procedure. The version of such witnesses are therefore hearsay in nature. The condition precedent to attract Section 10 of the evidence Act is succinctly laid down in State Vs. Nalini 1999 SCC (Cri) 691. Thomas, J. in the said report observed The first condition which is almost the opening lock of Section 10 of the Evidence Act is the existence of reasonable ground to believe that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement in reference to their common intention . Under the corresponding provision in the Englis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illagers after being caught cannot be admissible under Section 10 of the Evidence Act against the appellant. It has been argued that such statements were made by the coconspirators is admissible under Section 10 of the Evidence Act. Section 10 of the Evidence Act reads as follows: 10. Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is also argued that such statement of Premananda Jashomati before the villagers be treated as extra judicial confession of co-accused and be used against the appellant. Firstly, co-accused Premananda Jashomati have not supported making of such confession to villagers in their examination under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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