A.N. Chaturvedi, J.
1. This appeal is directed against the judgment and order dated 20th September, 1994 passed by Shri Vyasdeo Mandal, 3rd Additional Sessions Judge, Madhepura in Sessions Trial No. 176 of 1986 whereby the learned Additional Sessions Judge has convicted appellant Laxami Kant Chaurasia. alias Dr. Laxami Kant Chaurasia for the offence under Section 314 of the Indian Penal Code and has sentenced him to undergo rigorous imprisonment for five years Accused-appellant Dr. Chaurasia has also been sentenced to pay a fine of Rs. 2,000/- and in default of payment of the same to undergo rigorous imprisonment for three months. Accused-appellant Karamlal Yadav has been convicted by the learned Additional Sessions Judge for the offences under Sections 376 and 314/109 of the Indian Penal Code. For the offence under Section 376, I.P.C. the said accused-appellant has been sentenced to undergo rigorous imprisonment for seven years. For the offence under Sections 314/109 I.P.C. he has been sentenced to undergo rigorous imprisonment for five years and has been further sentenced to pay a fine of Rs. 2,000/- and in default of payment, to undergo rigorous imprisonment for three months. The sentences passed against the accused appellant Karamlal Yadav have been ordered to run concurrently by the learned Trial Court.
2. One Janeshwari Mandal, the father of the victim girl, is the informant of this case. As it appears from the Order dated 18.7.1991 of the Trial Court, the said informant died during the course of trial and hence he has not been examined by the prosecution as a witness. The case of the prosecution is that accused-appellant Karamlal Yadav is a rich man of the village and is a neighbour of the informant. The informant was working as agricultural labour of accused-appellant Karamlal Yadav and the informant's daughter, Madho Kumari (deceased) aged about 14 to 15 years was serving as maid servant in the house of appellant Karamlal Yadav and used to go to the field for tending his cow. The deceased Madho Kumari was unmarried and she developed illicit connection with accused-appellant Karamlal Yadav and became pregnant. Madho Kumari (deceased) informed her mother Nunudai (P.W. 1) about the pregnancy. About four days prior to the date on which the F.I.R. was lodged, her mother Nunudai requested accused-appellant Karamlal Yadav for marrying the deceased but Karam Lal Yadavrefused to do so. However, he assured her (P.W. 1) that he would get operation of abortion performed. On 15.7.84 at about 8 p.m. in the night Karamlal Yadav came to the house of the informant and asked his wife Nunudai (P.W. 1) to take her daughter Madho Kumari (deceased) to the dispensary of a doctor at Bharahi for abortion. The said accused-appellant took Nunudai (P.W. 1) and the informant's daughter (deceased) to Dr. Laxmi Kant Chaurasia (appellant No. 1) for abortion. The informant could not accompany them as he was engaged in attending a feast at the residence of his maternall brother. At about 2.00 a.m. in the night informant's wife (P.W. 1) and his nephew Sukhdeo Mandal (P.W. 2) came to the residence of the informant with the dead body of Madho Kumari on a rickshaw. The wife of the informant informed him that accused-appellant Karamlal Yadav took her deceased daughter to the dispensary of Dr. Chaurasia where a nurse with a person was present and Dr. Chaurasia started operation with the help of the said nurse and the unknown person. During the course of operation the child was taken out from the abdomen in small pieces but in course of operation Madho Kumari died. Appellant Karamlal Yadav is said to have warned the wife of the informant not to divulge the fact to anyone in the village and requested him to cremate the body of the deceased, but the informant's wife was not agreeable to it. The matter was reported to the police on 16.7.84 and on the basis of fardbeyan (Ext. 2) of the informant Madhepura P.S. case No. 139 dated 16.7.84 under Sections 376, 313 and 314 of the Indian Penal Code was registered against the accused-appellants as well as against the nurse and her companion. After investigation, the police submitted charge-sheet against the accused-appellants and the said nurse, namely, Manju Devi but Manju Devi was ultimately discharged and only the appellants faced the trial and were convicted and sentenced as mentioned above.
3. The defence of the accused-appellants is the denial of their guilt. It is also their case that they have been falsely implicated in this case at the instance of their enemies Jiwachha Yadav and Ram Kishun Mandal.
4. It has to be seen if the conviction and sentences passed against the accused-appellants are sustainable in law or not.
5. The prosecution has, in all, examined six witnesses out of whom P.W.1 Nunudai is the mother of the deceased. P.W. 2 Sukhdeo Mallah is the rickshaw-puller who is said to have brought the deceased girl and her mother to their house from the clinic of accused-appellant Dr. Laxami Kant Chaurasia after the alleged operation. P.W. 3 Ramphal Shah has been declared hostile by the prosecution as he has not supported the prosecution story. P.W.4 Md. Harun has been tendered by the prosecution and there appears nothing in his cross-examination to be of any help to the prosecution. P.W. 5 Bimal Kumar is a witness of formal nature and has been examined to prove the formal F.I.R. (Ext. 1) and the fardbeyan (Ext 2). P.W. 6 Brahmdeo Mandal is a clerk. He is also witness of formal nature and has been examined to prove the post-mortem report (Ext. 3). The doctor who held post-mortem examination on the dead body of the deceased and the police officer who investigated the case have not been examined. As will appear, the fate of the case depends upon the evidence of P.W. 1 Nunudai and the evidence of P.W. 2 Sukh Deo Mandal.
6. As mentioned earlier, appellant Karamlal Yadav has been convicted and sentenced for the offences under Sections 376 and 314/109, I.P.C. The charge under Section 376, I.P.C. is to the effect that appellant Karamlal Yadav committed repeated repe on Madho Kumari, (deceased) prior to 15th July, 1984. The dates of rapes or the period during which repeated rapes were committed has not been mentioned in the charge. So the charge under Section 376, I.P.C. appears to be vague on this Court. Furthermore, none of the witnesses examined by the prosecution has stated that he had seen appellant Karamlal Yadav committing rape on deceased Madho Kumari. The only witness on the point of rape is P.W. 1Nunudai who is the mother of the deceased Madho Kumari. In para 22 of her deposition she (P.W. 1) has stated that she had never seen appellant Karamlal Yadav having sexual intercourse with Madho Kumari. She (P.W. 1) claims to have learnt about the rape on Madho Kumari by appellant Karamlal Yadav from Madho Kumari herself (vide Paras 1, 16 and 20 of her deposition). Rut in Para 22 of her deposition she (P.W. 1) has stated that no one had told her that Karamlal Yadav had sexual intercourse with the deceased. Her (P.W. 1) evidence in para 16 of her deposition is to the effect that when she learnt from Madho Kumari alias Madia that she (Madho Kumari) had become pregnant she (P.W. 1) did not tell anybody about it. Her (P.W. 1) evidence in Para 21 of her deposition shows that she had not stated even before the police that appellant Karmlal Yadav had made Madho Kumari pregnant. In Para 22 of her deposition she (P.W. 1) has stated that she had never stated previously that Karamlal Yadav had made the deceased pregnant. So her statement to the aforesaid effect for the first time in Court appears to be an after thought on her part. It has come in the evidence (Para 14) of P.W. 2 Sukhdeo Mallah that deceased Madho Kumari was of loose character. His (P.W. 2) evidence in para 16 of his deposition would show that the deceased was unmarried. From the post-mortem report (Ext. 3) it would appear that the victim was aged about 20 to 22 years. P.W. 1has stated in para 1 of her deposition that victim Madho Kumari was working as maid servant m the house of Karamlal Yadav and has developed illicit connection with him, But in her cross-examination (Para 22) she has contradicted herself by a stating that she has her own cattle and the victim was tending her cattle. Even if it is accepted for argument sake that the victim was working as maid servant in the house of appellant Karamlal Yadav, it cannot be presumed that she was made pregnant by him and that too when it has been admitted by P.W. 2 that victim was a lady of loose character. Furthermore, P.W. 1 in the last para of her deposition has stated that she is a tutored witness and her evidence cannot be safely relied upon unless corroborated in material particulars by an independent witness. There is not other witness on this point to corroborate her. Further-more, there is no evidence to the effect that appellant Karamlal Yadav had sexual intercourse with the deceased against her will or without her consent. As is apparent, the evidence or record is not safely reliable and does not prove the charge under Section 376, IPC against appellant Karamlal Yadav beyond doubt. That being so, the conviction of appellant Karam Lal Yadav for the offence under Section 376, IPC is not sustainable in law.
7. Now I would like to consider if the conviction of appellant Karamlal Yadav for the offence under Sections 314/109, IPC, and that of appellant Dr. Laxami Kant Chaurasia for the offence under Section 314, IPC is sustainable in law or not. According to the charge appellant Dr. Laxami Kant Chaurasia is alleged to have caused miscarriage of Madho Kumari with child resulting in her death and appellant Karamlal Yadav is alleged to have abetted appellant Dr. Laxami Kant Chaurasia to cause miscarriage of Madho Kumari with child. Out of the six witnesses examined by the prosecution, only P.W. 1 Nunudai has stated in this regard. Her (P.W. 1) evidence is to the effect that when Madia (Madho Kumari) became pregnant, appellant Karamlal Yadav was not agreeable to marry her (Madho Kumari) but offered to get abortion done and Sunday was fixed for taking Madho Kumari to Dr. Chaurasia (appellant No. 1). She has further stated that on Sunday in the night accused Karamlal Yadav took Madho Kumari to Dr. Chaurasia and she (P.W. 1) accompanied Madho Kumari. She (P.W. 1) has further stated that Dr. Chaurasia and one lady took Madho Kumari inside the room and she (P.W. 1) was asked to sit outside. She has further stated that Dr. Chaurasia and scissors in his hand and they started chir phar (operation) in the room and Madho Kumari was crying. She has also stated that on being asked as to why Madho Kumari was crying. Dr. Chaurasia told her that ladies do cry due to pain when the child comes out. She has further stated that she saw blood oozing out of the body of Madho Kumari and some pieces of flesh which had been cut were lying there. She has further stated that Dr. Chaurasia asked her (P.W. 1) to take away Madho Kumari and when she went near her, she found that Madho Kumari had died but Dr. Chaurasia told her that Madho Kumari was unconscious due to injection given to her. She has further stated that she brought deceased Madho Kumari to her house on the rickshaw of Sukhdeo (P.W. 2) and told her husband the details of what had happened.
8. It may be pointed out that the story of rape of Madho Kumari by appellant Karamlal Yadav resulting in pregnancy has not been proved beyond doubt. That being so, the story that appellant Karamlal Yadav took Madho Kumari to Dr. Chaurasia or getting abortion done does not inspire confidence. Furthermore, P.W. 1 does not say that Karamlal Yadav asked Dr. Chaurasia to cause miscarriage of Madho Kumari with child and Dr. Chaurasia did so at the instance of Karamlal Yadav. Rather the evidence of P.W. 1 is her cross-examination (Para 10) is to the effect that Karamlal Yadav went away after making them sit at the house of Dr. Chaurasia. The statement of P.W. 1 to the effect that appellant Karamlal Yadav took Madho Kumari to Dr. Chaurasia has not been corroborated by any witness. It has come in the evidence (para 6) of P.W. 1 that in the night of occurrence her husband, daughter Mula Devi and daughter-in-law were present in her house but none of them has been examined to say that P.W. 1 had gone with deceased Madho Kumari and appellant Karamlal Yadav to the said doctor. In Para 14 of her deposition P.W. 1 has stated that when she reached her house with the body of Madho Kumari and told the family members about death of Madho Kumari, they began to weep but none of her family members has been examined to corroborate her statement to the said effect. As mentioned earlier, in Para 5 of this judgment, P.W. 1 in the last para of her deposition in Court as tutored by Ram Kishun Yadav. In view of her statement to this effect there appears no doubt that she is a tortured witness and it would not be safe to rely on her evidence.
9. P.W. 2 Sukhdeo Mallah is the person whose riksha was allegedly used for taking Madho Kumari from the place of Dr. Chaurasia to her house. He (P.W. 2) has stated that at 11 to 12 o'clock in the night while he was at his house, Nunudai (P.W. 1) came and told him that Madho Kumari was pregnant and Doctor with a view to cause abortion had done operation and she (deceased) was lying unconscious at the place Dr. Chaurasia as he had given injection. He (P.W. 2) does not say that Nunudai (P.W. 1) told him that appellant Karamlal Yadav had brought Madho Kumari (deceased) to Dr. Chaurasia for abortion. According to P.W. 1 the alleged operation was done in a room but P.W. 2 has stated that when he went to the clinic of Dr. Chaurasia with Nunudai (P.W. 1) he found Madho Kumari in the verendah and she appeared to have died and he took her to the informant's house on recsa. As is apparent P.W. 2 in not a abortion by Dr. Chaurasia. According to P.W. 1 the said Dr. Chaurasia had done Chir-phar for causing miscarriage and several pieces of flesh cut during operation were lying there in the room. P.W. 2 in para 19 of his deposition has stated that he had seen injuries on breast and Panjara of deceased Madho Kumari. It may be pointed out that the doctor who had held post-mortem examination on the dead body of Madho Kumari has not been examined by the prosecution. Due to non-examination of the doctor it is not known if the doctor had found any mark of external injury or mark of operation on the person of the deceased or not. So there is no medical evidence to support the prosecution case.
10. The prosecution has brought on record the post mortem report (Ext. 3) which has been proved by P.W. 6 who is a clerk. P.W. 6 does not say that he had any occasion to work with the concerned doctor and to see his handwriting. He (P.W. 6) does not say that he is acquainted with the handwriting of the concerned doctor or that the post-mortem report was written in his presence. It is conceded by the learned Counsel for the State that the post-mortem report has not been proved by a competent witness. There is no evidence to the effect that the doctor who held post-mortem examination has died, That being so, the post-mortem report (Ext. 3) has not been proved according to law. Apart from that, the post-mortem report is not substantive evidence. However, it is contended on behalf of the appellants that post-mortem report (Ext. 3) has been brought on record by the prosecution and the defence is entitled to take advantage thereof. This contention is not controverter by the learned Counsel for the State. Referring to the post-mortem report it is pointed out by the learned Counsel for the appellants that the doctor who held post mortem examination did not find any external injury on the person of the deceased which goes to falsify the entire prosecution story that Dr. Chaurasia operated upon the deceased and did Chir-phar from which blood was oozing out. It is further pointed out that the doctor had found no external injury on the uterus and on dissection a female fetus of about five months 22 cm. long with cord, was found intact and it goes to falsify the prosecution case and the evidence of P.W. 1 that small pieces of flesh cut during operation were lying there. As mentioned earlier, the investigating Officer of the case has not been examined. Due to non-examination of the I.P. it is not known if he had found any. mark of bleeding or mark of operation concerning abortion in the clinic of appellant Dr Chaurasia. The dead body of the victim had not been recovered from the clinic of Dr. Chaurasia rather had been produced before the police by the informant. In view of what has been pointed out above, the evidence on record does not appear to be safely reliable and doe not prove the charge under Section 314, IPC against appellant Dr. Laxami Kant Chaurasia and charge under Sections 314/109, IPC against appellant Karamlal Yadav beyond doubt and hence the conviction of the doubt and hence the conviction of the appellants for the offences under the said sections is not sustainable in law.
11. It is the case of defence that the accused-appellants have been falsely implicated in this case at the instance of their enemies Jiwachh Yadav and Ram Kishun Yadav. In the deposition of P.W. 1, three paras have been numbered as 22. In para 22 (third one) of her deposition P.W. 1 has admitted that there was quarrel between Dr. Chaurasia and Jiwachh Yadav with regard to operation of Thrasher by Dr. Chaurasia. She (P.W. 1) has further admitted in that very paragraph that Ram Kishun Yadav is friend of Jiwachh Yadav. Two paragraphs of the deposition of P.W. 1 have been numbered at 23. In para 23 (first one) of her deposition P.W. 1 has admitted that Jiwachh Yadav and Ram Kishun Mandal had come to her residence prior to arrival of police and both of them accompanied the informant to the police station and got the case instituted by her husband. The statement of P.W. 1 to this effect lends support to the defence case that the appellants have been implicated in this case at the instance of Jiwach Yadav and Ram Kishun Maridal.
12. Having regard to what has been pointed out above, the judgment and order of conviction and sentence passed against the accused-appellants cannot be sustained. In the result, this appeal is allowed. The judgment of conviction and sentence passed by the learned Trial Court is hereby set aside. Both the accused-appellants are hereby acquitted. The accused-appellant No. 1 Dr. Laxmi Kant Chaurasia is discharged from the liability of his bail bond. The accused-appellant Karamlal Yadav who is in jail is directed to be released forthwith, if not wanted in any other case.