M. C. JAIN, J. - (1.) THE Additional Sessions Judge No. 1 Hanumangarh, by his judgment dated 26-11-1977 convicted the appellant Sher Singh of the offence under Sec. 304, Part II, IPC, and sentenced him to four years rigorous imprisonment and Dayawati, appellant No. 2, was convicted for the offence under Sec. 317, IPC and was given the benefit of probation.
(2.) THE prosecution case, in brief, is that on 9- 9- 1974 Mokam Singh (PW 4) who was serving in the railway as key-man, was coming from Hanuman-garh town to the Junction along with the railway line before the arrival of the 8 0' clock train. Near the bridge No. 5, Pillar No. 1, he found a shoe case lying inside Aak Plant. When he reached near the Aak Plant he heard the cries of a child. He opened the shoe case a little, then he found that a child in crying. Bahadur Ram (PW 5) was called and he asked him to remain there so that he may go and inform the police. Within an hour the police arrived and lifted the shoe case containing the child. THE child was taken by the police to the Hospital. That was a female child. At the Hospital the female child died. On Bahadur Ram's report (Ex. P/7), case under Sec. 317, IPC, was registered. THE child was admitted on 9-9-1974 at 11. 15, a. m. with the memo Ex. P/l, delivered by ASI Shri Ram Kishan of the Police Station, Hanumangarh town. THE child died at the Hospital at 3. 50, P. M. , on the same day. Post-mortem examination on the dead body of the child was conducted by Dr. Paras Mal Jain (PW 1 ). THE investigation was conducted. During the course of investigation, it was found that the appellant Dayawati gave birth to a female child in the clinic of Dr. Rajendra Kumar Sethi (PW 2 ). Sher Singh appellant No. 1, brought Dayawati at the clinic of Dr. Sethi through Shanker Lal (PW 7) and Yashpal PW 6. Dayawati delivered the child at about 5. 30 p. m. , and got the discharge from the clinic at about 6. 30, p. m. , on the same day, that is, on 8-9-1974. After completion of the investigation, charge-sheet was presented against the accused-appellants. The appellant Sher Singh was charged for the offence under Sec. 304, IPC, by the Additional Sessions Judge, Hanumangarh and Dayawati was charged for the offence under S. 317. IPC. Both the accused persons pleaded not guilty to the charges and claimed to be tried. At the trial the prosecution examined PW 1 Parasa Mal Jain, PW 2 Dr. Rajendra Kumar Sethi,pw 3 Bahadur Ram, PW 4 Mokam Singh, PW 5 Lakhan Lal, PW 6 Yashpal, PW 7 Shanker Lal, PW 8 Dharm Chand, and PW 9 Ramkishan. The statements of the accused persons were recorded, in which they denied the prosecution case in toto No evidence was led in defence. The learned Addl. Sessions Judge convicted and sentenced the accused persons, as aforesaid. I have heard Shri S. K. Goel, learned counsel for the accused-appe-llants,and Shri Niyazu Deen Khan, learned Public Prosecutor, for the State In this appeal Shri S. K. Goel, learned counsel for the appellants, has challenged the conviction of the appellant Sher Singh before me. So far as the appellant Dayawati is concerned, her conviction has not been challenged. As regards the appellant Sher Singh, Shri Goel, learned counsel for the appellants, urged that there is not an iota of evidence against the appellant Sher Singh connecting him with the offence under Sec 304. IPC. There is absolutely no evidence on record on the point as to who abandoned the child. Even if the entire evidence led by the prosecution is believed, still that evidence does not in any way connect the accused with the commission of the offence. The prosecution has simply led evidence to the effect that Sher Singh through the help and assistance of Shanker Lal and Yashpal, approached Dr. Rajendra Kumar Sethi and got the child of Dayawati delivered. It was a mature delivery, according to Dr. Sethi Even if it be taken that it was an illegitimate child, getting a mature child delivered at the clinic does not in any way constitute any offence. What was done after delivery and discharge from the clinic there is no evidence. The prosecution has examined one witness Dharam Chand (PW8), in order to prove that the shoe case, in which the child was found, was of his shop, but his statement does not go beyond that. He has simply proved the writing of three figures 10. 15. and 30 on the shoe case. Beyond that he has not supported the prosecution. He has even stated that he does not know Sher Singh. He has denied to have stated to the police that Sher Singh, points-man, came to him and demanded from him an empty shoe case and thereupon he delivered a shoe case to him. Thus, the evidence of Dharam Chand is no way incriminatory against the appellant Sher Singh. Mr. Goel, therefore, urged that the finding of guilt recorded by the learned Additional Sessions Judge, has no basis in evidence and the finding is only based on surmises and conjectures. The learned, Public Prosecutor too, could not support the conviction because of the fact that the evidence against the appellant Sher Singh is lacking and does not in any way connect him with the commission of the offence. It is significant to note that there is no evidence on record to the effect that the child was, abandoned by Sher Singh. In the absence of connecting evidence, the conviction of the appellant Sher Singh, in my opinion, cannot be sustained and the appellant Sher Singh deserves to be acquitted of the offence under Sec. 304, Part II, IPC.
(3.) IN the result, the appeal of the appellant Sher Singh is allowed. His conviction and sentence (under Section 304, Part II, IPC) are set aside and he is acquitted of the offence under Sec. 304, Part II, IPC. However, the appeal] of Dayawati is dismissed. .;