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2014 (9) TMI 1151
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....le imprisonment for two months more for the offence punishable under section 201 of the Indian Penal Code, both the sentences shall run concurrently. The prosecution case as alleged against the appellant and other accused persons is that one Premananda Brojabashi of village Uchal Pukury was a Yogi. He had many disciples in the village. Defacto-complainant, namely, Haro Kumar Roy, PW-1, and his family members were followers of Yagi Khudiram Brojabashi. Premananda Brojabashi was also a follower of Khudiram Brojabashi and was a 'Gurubhai' to the defacto-complainant and his family members. When Khudiram Brojabashi left the village, defacto-complainant and his family developed close association with Premananda Brojabashi. Taking advantage of such association, Premananda Brojabashi developed illicit relation with Depali Roy, victim, the daughter of Haro kumar Roy and committed rape upon her at her house. The defacto-complainant came to know such incident when he threatened to inform the police, Premananda Brojabashi promised to marry Depali Roy, the victim. Depali Roy had become seven months' pregnant in the meantime. On 7.1.2006, Premananda Brojabashi along with his aunt, Jashomati Bro....
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....nt for one year and for commission of offence punishable under section 201 of the Indian Penal Code and sentenced him to suffer simple imprisonment for two years and to pay fine of Rs. 5000/- each in default to suffer simple imprisonment for two months more and for commission of offence punishable under section 314 read with section 120B of the I.P.C. and sentenced him to suffer rigorous imprisonment for five years and to pay fine of Rs. 10,000/- in default to suffer simple imprisonment for six months more, convicted the accused Jashomati Brajobashi, for the offence punishable under section 314 read with section 120B of the Indian Penal Code, and sentenced her to suffer simple imprisonment for two years and to pay fine of Rs. 5000/- in default to suffer simple imprisonment for one month more and also convicted the appellant herein Dr. Pankaj Biswas, for commission of offences punishable under section 314 of the Indian Penal Code read with section 7(3) of the Medical Termination of Pregnancy Act, 1971 and under section 201 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for five years and to pay fine of Rs. 10,000/- in default to suffer simple imprisonment....
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....llant and as a consequence thereof the victim had died. She further submitted that the co-accused persons were in conspiracy with the appellant and such statement is admissible under section 10/30 of the Evidence Act. She submitted that cross-examination of the hostile witnesses clearly show that they had supported the prosecution case in their statements recorded during investigation. The appellant had made false statement that he was not a medical officer attached to the said hospital under section 313 examination is an added link to the circumstances which brings him home his guilt. She prayed for dismissal of the instant appeal. The prosecution case against the appellant is to the effect that the victim, Depalil Roy, was brought to the hospital by Premananda Brajobashi, Jashomati Brajobashi, Narakanta Barman and Monoranjan Barman for the purpose of abortion. The appellant had referred her to the house of Aya, Purneswari Burman, and himself performed abortion on the victim in the said house on 10.01.2006 and as a consequence thereof the victim died. It appears from the evidence of postmortem Doctor, namely PW-17 that the following injuries were found upon the victim is as follo....
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....as exhibit 2. PW-2 is the neighbour who corroborated the evidence of PW-1. He had stated that Premananda Brajobashi narrated while trying to abort the pregnancy the victim died at Jamaldaha hospital. PW-3 is also a neighbour who was also corroborated the evidence of PW-1. PW-4 is another neighbour. He also corroborates the evidence of PW-1. He stated that they became suspicious as they found blood on the legs of the deceased. Therefore the Premananda and Joshomoti narrated that Dipali had died while being aborted by the appellant in the house of Kundeswari Burman. PW-5 has supported the case of PW-1 and PW-4. His statement was corroborated before the learned Magistrate under section 164 Cr.P.C. He has proved the signature on such statement. PW-6 and PW-7 are also neighbours who corroborated PW-4 and state that they had made statements before the Magistrate. PW-8 is the mother of Depali. She corroborated the prosecution case and stated that she had made the statement before Magistrate under Section 164 of the Code of Criminal Procedure. PW-9 is the uncle of Depali who also corroborates the prosecution case. PW-9 to PW-14 are witnesses of Jamaldaha. They have not supported the pr....
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....of the ambulance which is said to have carried the victim. He admitted his signature on the seizure list but did not support the remainder of the prosecution case. He admitted his statement before the Magistrate which was exhibited as Exbt. 18/1. In cross-examination, he stated that as per direction of the Police he made statement before the Magistrate. PW-14 is the owner of a Medicine shop at Jamaldaha. He stated that the ambulance belonged to Jamaldaha Club and Pathagar and was let out to carry patients. From the conspectus of the aforesaid evidence of PW-10 to PW-14 it is clear that the role of the appellant as the Doctor who was approached to conduct abortion of the victim and who in fact performed such abortion on her at the house of Purneswari Barman resulting in her death has not been established. I am in agreement with the submission of learned counsel for the appellant that statement recorded under Section 164 of the Code of Criminal Procedure cannot be treated as substantive evidence when the maker does not depose of such facts on oath during trial. Hence, there is no direct evidence on record connecting the appellant with the alleged crime. Faced with such a situation,....
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....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. Secondly, it is doubtful whether after Premananda & Joshomati were detained by local people and were interrogated the conspiracy had continued so as to attract the theory of urgency so as to attract Section 10 of the Evidence Act. Hence, I hold that 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 ....