2025:CGHC:22776 HIGH COURT OF CHHATTISGARH, BILASPUR CRA No.1102 of 2004 Galeshwar, S/o. Lallu Singh, aged about 35 years, R/o. Village – Hedaspur, Thana Janjgir, At present Kashinagar Chowki, Rampur District – Korba (C.G.) ---- Appellant Versus State of Chhattisgarh Through District – Korba (C.G.) --- Respondent For Appellant : Shri Vimlesh Bajpai, Advocate. For Respondent : Shri Shailesh Puriya, Panel Lawyer. Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 09.06.2025 1. This appeal is filed under section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) assailing the legality, correctness and judicial propriety of the judgment dated 08.12.2004 passed in Sessions Trial No. 97 of 2004 by the Additional Sessions Judge, Korba (C.G.) by which, the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 314 of I.P.C. : R.I. for 5 years and fine of Rs.1000/-, in default of fine 6 month additional R.I. 2. The admitted fact in this case is that deceased-Brahaspati Bai was the wife of appellant and they had two children, as a result of their wedlock. Heera Bai (acquitted accused) is a resident of Village-Urga District-Korba and works as VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.06.11 14:21:47 +0530 -2- midwife (Dai). On the date of incident, appellant along with his wife was residing in Kashinagar and on 17.05.2004, he had gone to his uncle’s (Fufa’s house) at Urga Chowki. The report of the incident was lodged on an intimation sent by a doctor of 100 Saiya Hospital, Korba and merg was lodged and an inquiry was set on motion and thereafter the FIR was registered. 3. Case of the prosecution, in brief, is that deceased- Brahaspati Bai was brought to 100 Saiya hospital in a serious condition for treatment on 19.05.2004 at about 05:45 p.m. and her pulse and blood pressure was not being recorded. It is further case of the prosecution that appellant Galeshwar informed a doctor that abortion of three months fetus of the deceased- Brahaspati Bai was done by him on 16.05.2004 through midwife (Dai) by giving herbs (Jadi Buti) and she should be treated properly. Dr. RajKumari (PW-11) looking to the serious condition of the deceased Brahaspati Bai informed her admission in the hospital to the police Chowki, Rampur vide Ex.P-1 through the ward boy. Brahaspati Bai died at 07:15 p.m. in the hospital. On the basis of Ex.P-1, police chowki Rampur registered merg intimation 0/2004 and police station Korba registered a merg No. 65 of 2004 under Section 174 of the Cr.P.C and an inquiry was set on motion. 4. The autopsy of the deceased-Brahaspati Bai was conducted by Dr. K.S. Kawar (PW-8), who gave post-mortem report Ex.P-15. Statements of the witnesses were recorded and an offence under Section 314 of the IPC having been found, a Crime No. 614 of 2004 under Section 314/34 was registered at Police Station Kotwali Korba against the appellant and Heera Bai (acquitted accused). Spot Map of the incident was prepared vide Ex.P-14 and again the statements of the witnesses were recorded and on completion of investigation, the charge-sheet was filed against the appellant and Heera Bai (acquitted accused) before the Judicial Magistrate, Korba who committed the case to the Sessions Court to made over the case to the trial Court. Thereafter, charge under Section 314/34 of the IPC was framed against the Appellant and Heera Bai (acquitted accused) who denied the -3- charges and claimed to be tried. 5. Prosecution in order to bring home the guilt of the appellant examined as many as 11 witnesses and exhibited 16 documents. The statement under Section 313 of the Cr.P.C. was recorded, in which, accused persons claimed their innocence and false implication. 6. By the Judgment impugned, Heera Bai ( acquitted accused) was acquitted from all charges, however, the appellant was convicted and sentenced as stated in the first paragraph of the judgment. 7. Shri Vimlesh Bajpai, learned counsel appearing for the appellant submits that the prosecution was not been able to bring home the guilt of the appellant beyond reasonable doubt. He submits that except PW-11 Dr. Rajkumari, rest of the prosecution witnesses have not supported the case of the prosecution. The conviction of the appellant is only based upon the alleged extra-judicial confession made before Dr. Rajkumari (PW-11) with regard to abortion of the deceased- Brahaspati Bai through some midwife by administering some herbs (Jadi Buti). He submits that in the statement under Section 313 of the Cr.P.C., the appellant has denied that he has given extra judicial confession. He further submits that extra- judicial confession is a weak piece of evidence. Though conviction can sustain on such extra judicial confession, but it should inspire confidence and is of sterling quality without any clutches of doubt. Reading through the statement of PW-11 Dr. Rajkumari, he submits that the extra judicial confession given cannot be relied to sustain the conviction of the appellant. He submits that the allegation of giving herbs (Jadi Buti) to the deceased Brahasbati Bai for abortion of three months fetus, was against Heera Bai (acquitted accused) and as such, the learned trial court has acquitted her therefore, on the same set of evidence, the appellant cannot be convicted. The learned trial Court committed an error of law as well as fact in convicting the appellant. He placed reliance upon the judgment passed by this Court in Criminal Appeal No. 33 of 2003, Rajesh Kumar Vs. State of -4- Chhattisgarh judgment dated 16.01.2024 and judgment passed by Hon’ble Odisha High Court in Criminal Appeal No. 331 of 1993 judgment dated 13.10.2023. 8. Per contra, Shri Shailesh Puriya, learned Panel Lawyer supports the impugned judgment. He submits that even if the other prosecution witnesses have not supported the case of the prosecution, the statement of Dr. Rajkumari (PW-11) is sufficient enough to hold conviction of the appellant. He submits that as the appellant gave voluntary extra-judicial confession with regard to abortion of three months fetus of the deceased-Brahaspati Bai by midwife by giving herbs (Jadi Buti), the evidence is sufficient enough to hold the conviction of the appellant, therefore, there is no illegality or irregularity in the impugned judgment warranting interference by this Court, appeal has no merit deserves to be dismissed. 9. I have heard learned counsel for the parties and perused the record. 10. The case of the prosecution is that the appellant and the deceased were husband and wife having two children and the deceased was carrying pregnancy of three months. It is also a case of the prosecution that to abort the pregnancy, the appellant took the deceased-Brahaspati Bai to Heera Bai (acquitted accused) and who administered herbs (Jadi Buti) to her, resulting into her miscarriage which led to deteriorate her health and ultimately she was taken to the 100 Saiya Hospital Korba were she was admitted and ultimately died. 11. PW-1 Pawan Sai is the ward boy of the hospital who has given the intimation to the police Ex.P-1. PW-2 Birbal is examined by the prosecution, he deposed in his statement that before two days of the death of deceased-Brahaspati Bai, the appellant and the deceased came to his house, appellant dropped the deceased- Brahaspati Bai in her home and went to Kashinagar and did not tell anything to him. He further deposed that the deceased was treated by him by doctor Dr. Smt. Rajkumari who advised to take the deceased to 100 Saiya Hospital and thereafter, -5- she took the deceased to appellant’s house. After that Galeshwar- appellant took the deceased to 100 Saiya Hospital and after two days, Brahaspati Bai had died. He shows his ignorance with regard to the disease of the deceased. He further deposed that while Brahaspati Bai-deceased came to his house, she was not ill. He shows his ignorance as to whether the deceased was taken to Heera Bai (acquitted accused). This witness was declared hostile by the prosecution and was subjected to cross-examination under Section 154 of the Indian Evidence Act. In his cross-examination also, he has not supported the case of the prosecution and further states that the deceased-Brahaspati Bai was treated by Dr. Smt. Rajkumari and her pain was cured. He further deposed that in the night, Brahaspati Bai became serious and thereafter she was taken to 100 Saiya Hospital, Korba. He further shows his ignorance as to whether the abortion of Brahaspati Bai was done by Heera Bai (acquitted accused). In his cross-examination by the accused, he stated that the deceased was administer injection by Dr. Smt. Rajkumari and asked her to take to 100 Saiya Hospital, thereafter, they all went to 100 Saiya hospital and at that time, deceased was talking. He further stated that Brahaspati Bai suddenly fell ill in his house and therefore, she was admitted in 100 Saiya Hospital. Almost identical statement was given by Samaylal (PW-3). These two witnesses does not support the case of the prosecution with regard to the abortion of the deceased Brahaspati Bai by Heera Bai (acquitted accused) on the saying of the appellant. 12. PW-4 Sucha Singh has not supported the case of the prosecution. PW-5 Hateram Shidar, Head constable 173, is a witness to the proceedings carried out in the investigation. PW-6 Lalan Singh , Assistant Sub Inspector and PW-7 Rohit Chandra are also a witnesses to the investigation carried out. PW-8 Dr. K.S. Kawar has conducted the post-mortem of the deceased and gave the report vide Ex.P-15 as follows:- (I) The dead body was seen in a vertical position, hands and legs were -6- straight, eyes and mouth were closed. The part below the navel was slightly swollen and there were signs of bleeding from the woman's private parts. (ii) her skull, cranium, cervix, cartilage, brain, spinal cord, ribs, colon, windpipe, right and left abdomen, perineum, carius and pelvis were pale. (iii) There was a little blood in the left side of the body and a little blood was collected in the right side of the body. A little blood was found in the old tube. The hand tube, mouth and Gram's tube were pale. (iv) Undigested food was present in the stomach and the large intestine. Small intestine and large intestine had stool, deformity and the spleen was pale and there was a little urine in the kidney. (v) The size of the cervix of the deceased was about 12 to 24 weeks old and there were blood clots in it. I had kept the distal part of the cervix of the deceased pre-absorbed. According to him, cause of the death of the deceased was hemorrhagic shock due to excessive loss of blood. 13. PW-9 Dr. Smt. S. Shrivastava has stated that the deceased had a miscarriage, but she cannot tell whether her abortion was spontaneous or abortion was induced by some means. 14. From perusal of the medical evidence brought before this Court, it is quite evident that the deceased was carrying pregnancy and she was subjected to abortion. The conviction of the appellant is basically based upon statement of Dr. Smt. Rajkumari (PW-11), who in her statement, stated that she intimated the Rampur Police Chowki with regard to bringing the deceased- Brahaspati Bai in a serious condition. She further deposed that Brahaspati Bai’s husband (appellant) informed that abortion of three months fetus of the deceased was done on 16.05.2004 by some midwife by administering herbs (Jadi Buti). 15. The learned trial Court, on the solitary statement of the Dr. Smt. Rajkumari (PW- 11), came to a conclusion that the appellant has committed the offence under Section 314 of the IPC. However, at the same time, learned trial Court has acquitted the midwife Heera Bai (acquitted accused). From the evidence gathered, there is no cogent and prudent evidence as to whether the deceased was taken to -7- acquitted accused (Heera Bai) for abortion and she was subjected to abortion by administrating herbs (Jadi Buti) by Heera Bai (acquitted accused). The evidence which emerges from the statement of Dr. Rajkumari PW-11 is in the nature of extra-judicial confession. In his 313 Cr.P.C. statement, the accused has denied this evidence against him. Apart from this, it is a case of the prosecution that Heera Bai (acquitted accused) has administered the herbs (Jadi Buti) to the deceased and when the trial Court has acquitted the Heera Bai on the such evidence, it is very difficult for this Court to accept the extra judicial confession of the appellant. 16. This Court in the matter of Rajesh Kumar (supra) in paragraph 21 and 23 observed as under:- (21) It is the submission of Mr. Surendra Singh & Mr. K.A. Ansari, learned Senior Counsel, that since the principal offence under Section 314 of the IPC is not established, conviction of appellants A-2, A-3 & A-4 for offence under Section 314 read with Section 109 of the IPC cannot be sustained and is liable to be set aside. (23) Since in the instant case, offence under Section 314 of the IPC against Rajesh Kumar (A-1), who is said to have caused miscarriage, is set aside and is acquitted of the said charge in the preceding paragraph, and since substantive offence is not established against A- 1, therefore, in light of the decision of the Supreme Court in Madan Raj Bhandari (supra), charge of abetment under Section 314 of the IPC against the present appellants - A-2, A-3 & A-4 fails and their conviction under Section 314 read with Section 109 of the IPC is hereby set aside, and they are acquitted of the said charge. 17. It is a well settled principle of law that extra-judicial confession is a weak piece of evidence. The Supreme Court time and again law has laid down a law that conviction can sustain on extra judicial confession, however, it should be voluntary and impeccable and of starling quality. As the other evidence are lacking with regard to abortion, it would not be safe for this Court to hold the conviction of the appellant only on the basis of extra-judicial confession made by him before Dr. Rajkumari PW-11. Therefore, this Court is of the opinion that a benefit of doubt should be extended to the appellant. 18. In the result, the appeal filed by the appellant is allowed. The impugned -8- judgment of conviction and sentence is hereby set aside. The appellant is acquitted from the alleged offences. 19. Since the appellant is reported to be on bail, his bail bond shall remain in force for a period of six months from today in view of the provision of Section 481 of BNSS, 2023. 20. The record be sent back to the trial Court along with a copy of this order for necessary compliance and information. 21. Sd/- s Sd/- Sd/- (Sachin Singh Rajput) Judge Vaibhav