M.L. Shrimal, J.
1. This appeal has been directed against the judgment dated September 26, 1973 of the learned Additional Sessions Judge, Gangapur City whereby he acquitted the appellant under Section 302/199 IPC, but convicted him under Section 314, Para 1, IPC, and sentenced him to seven year's rigorous imprisonment and a fine of Rs. 2000/- in default of the payment of which to undergo rigorous imprisonment for a further period of six months.
2. The prosecution story in nutshell is that Ram Khilari had two sons Radheysham and Ghanshyam. Radheyshyam was married to Smt. Mahadevi, and his younger brother Ghanshyam was married to Smt. Sri Bai. It is alleged that prior to the marriage of Smt. Mahadevi she was in illicit intimacy with Gajanaod (since acquitted) as a result of which she became pregnant Radhey Shyam later on came to know of this fact and as such he refused to bring her back fro en his father it law's place. A few days prior to the abortion Gaja Nand and Kalyan conspired to relieve Smt. Mahadevi of the burden of the illicit child. Kalyan managed to bring the younger blather, of Radheyshyam viz. Ghanshyam with him and thereafter the accused Gajanand, Kalyan and Ghanshyam brought Smt. Mahadevi to Hindaun. She was taken to the shop of Dr. Kishorilal, a private practitioner at Hindaun, for abortion but he refused to oblige them. Motilal (PW 3), a compounded, at the shop of the doctor was also present at the time the doctor was approached. The accused Gajanand, Kalyan (since acquitted) and Ghanshyam (PW 11) took her to the house of the appellant. It is alleged that later some time PW 3 Motilal met them at the house of the appellant, who later on after persuasion agreed to abort the child. He gave her certain medicines on account of which abortion took place in the night at about 9 p.m. and she gave birth to a dead female child which was removed by Rahim Bux (since acquitted) Smt. Mahadevi suffered from profuse bleeding as a result of which she died. The dead body of Smt. Mahadevi was secretly buried in the house of appellant Kamaluddin.
3. On July 8, 1970 the police received information through some sources regarding the occurrence. Kamaluddin was arrested. He expressed his desire to get the dead body discovered. An information memo Ex. P. 24 was recorded and in consequence of the information after removing the stone slabs he got the dead body of Smt. Mahadevi along with her clothes discovered. The recovery memo Ex P. 3 was prepared. A photograph of the dead body was taken. The police after usual investigation submitted a challan against the four accused viz. Kamaluddin, Kalyan, Gajanand and Rahimbux. The learned Magistrate took cognizance of Ghansyam's complicity in the case, but he was tendered pardon later on by the District Magistrate. The learned Magistrate after completing the committal proceedings committed all the four accused to take their trial in the Court of Additional Sessions Judge Gangapur City. The learned Additional Sessions judge charged the appellant Kamaluddin under Section 302/109 and 314 IPC The accused Kalyan and Gajanand were charged under Section 302/109, 314/109 Indian Penal Code and Rahim Bux was charged under Section 318 Indian Penal Code The accused in their statements under Section 342 CrPC denied the prosecution allegations about their participation in the crime The prosecution examined 18 witnesses in support of their case Only one witness DW 1 Abdul Satter was examined in defence by the appellant Kamaluddin. The learned Additional Sessions Judge acquitted all the accused except the appellant Kamaluddin of all the charges. The appellant Kamaluddin was acqutted of the charge punishable under Section 302/109 IPC, but he was convicted under Section 314 IPC, and sentenced as already mentioned above. The appellant Kamaluddin has challenged his conviction by this appeal.
4. Mr. Ganpat Singh Mehta, learned Counsel for the appellant has also tiled the conviction of the appellant on the ground that the prosecution evidence adduced in this case it not reliable and suffers from a number of firmities. PW 11 Ghanshyam is an approver whose evidence is inherently unreliable. He made contradictory statements during the trial and as such his evidence can not provide a solid foundation for convicting the appellant. PW 3 Motilal was also an accomplice One tainted evidence can not corroborate another tainted evidence. The evidence produced to corroborate it was neither sufficient nor cogent to connect the appellant with the crime. The Public Prosecutor appearing on behalf of the State has canvassed for the correctness of the view taken by the learned Additional Sessions Judge.
5. Mr. Mehta appearing for the appellant has urged that the dead body which was alleged to have been recovered from the house of Kamaluddin was not that of Smt. Mahadevi I do not find sufficient reasons to agree with him PW 11 Ghanshyam identified the clothes. which were found on or near the dead body i.e. 'dhoti', Article 1, blouse Article 2, 'Gadda' Article 3 petticoat Articles 4 and 5 and 'churi' Article 6 in the Sessions Court. He stated that his brother's Wife (deceased Smt. Mahadevi) was wearing those clothes at the time of abortion. While identifying the Article 3 he stated that at the time of miscast age he saw his brother's wife lying on it. These articles were correctly identified by this witness in the test identification parade. His statement stands corroborated by Ex. P. 8 PW 3 Motilal identified the above-mentioned articles 1 & 2 stating that those were the same clothes which the girl was wearing at the time when one came to the shop of PW 15 Dr. Kishori Lal for the purpose of miscarriage. His statement stands corroborated by the statement of Magistrate (PW 18) Kishanlal. It further finds corroboration from the statement Ex. P 27 The clothes recorded along with the dead body furnish convincing, credible and cogent evidence to the effect that the dead body was of Smt. Mahadevi. The trial court after taking into consideration the relevant evidence came to the conclusion that the dead body was of Smt. Mahadevi. I have no reason to differ. I agree with the finding.
6. The learned Counsel for the appellant further urged that the prosecution failed to prove that the death of Smt. Mahadevi was caused by an act dune with an intent to cause miscarriage. It is sufficient to say that the statements of PW 15 Dr Kishorilal, PW 3 Motilal and PW 11 Ghanshyam are (sufficient to prove that Smt. Mahadevi was at the advanced stage of pregnancy at the time of occurrence. It has been amply proved by the prosecution evidence that Smt. Mahadevi was keen on getting rid of pregnancy. Dr. R.L. Sharma (PW 17) has stated that there was a piece of cloth inserted in between the mass of flesh which was in the anatomical position of the uterus which was in the anatomical position of the uterus which was suggestive of some criminal or mechanical interference with the uterus. Besides that, he found blouse like spots on the clothes surrounding the dead body. He found the size of mass 4' x 3' which was suggestive of the later stage of pregnancy Pacing reliance on the afore mentioned evidence, the report of the chemical examiner and serologist Ex. P 25 and Ex P. 26 respectively, the trial court held that Smt. Mahadevi's death was caused as a result of an act done with an intent to cause miscarriage of Smt. Mahadevi who was at the advanced stage of pregnancy. It has rot been shown that the evaluation of the evidence made by the learned Additional Sessions Judge suffers from any gross error or material irregularity I find no cogent reason to interfere with the finding of the trial court on this point.
7. It as urged that the conviction of the appellant Kamaluddin rests on the testimony of the approver. His statement was inherently unreliable Besides this, the evidence produced to corroborate it was neither sufficient nor cogent enough to connect the accused with the crime. In support of his contention reliance has been placed on : Sarwan Singh v. State of Punjab : 1957CriLJ1014 , The State of Andhra Pradesh v Cheemalapati Ganeswara Rao and Anr. : 3SCR297 Bhiva Doulu Patil v. State of Maharashtra : 3SCR830 . Haroon Haji Abdullah v. State of Maharashtra : 2SCR641 , Mohd. Hussain Umar Kochra etc. v. K.S. Dalipsinghji and Anr. : 1970CriLJ9 , Rameshwar v. The State of Rajasthan : 1952CriLJ547 , and Bhuboni Sahu v. The King AIR 1949 PC 257. Ratio decidendi of all the cases cited is : Though a conviction based upon the evidence of the accomplice is legal, the court will not accept such evidence unless it is corroborated material particulars. The corroboration must connect the accused with the cams. It may be direct or circumstances. It is not necessary that the corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. The corroboration must be from an independent source, since one accomplice can not corroborate another. The first test to be applied in the case of an approver is that his evidence must show that he is a reliable witness, which is a test common o alt the witnesses. The second test which remains to be applied in such a case is that the approver's evidence must receive sufficient corroboration in material particulars. Keeping in view the weighty observations of their Lordships of the Supreme Coin and Privy Council in the above-mentioned cases, I now proceed to evaluate the evidence of Ghanshyam (PW 11) approver to find out whether the testimony in itself is acceptable or not. PW 11 Ghanshyam stated that he along with his 'bhabhi' Soot Maha Devi, Gajanand and Kalyan came to the shop of Dr. Kishorilal who refused to relieve Smt. Mahadevi of her pregnancy. Thereafter both of them took him along with his brother's wife to tin house of Kamaluddin. After some time Moti Lal (PW 3) also reached there, and ill the four had a talk at a distance from him. After the departure of Motilal, Kamaluddin refused to abort the child, but on the persuasion of the other acquitted accused persons, he agreed On the next day the appellant gave her tablets and in the evening he give some yellow coloured medicine. At 9 p.m. the accused Kamaluddin, however, did give further treatment relating to abortion. The miscarriage has caused to tier and Smt. Mahadevi give birth to a female child fir, however, aid not know whether the child was born alive or dead. After abortion she started shivering with cold and at 12.30 she expired. The learned Counsel for the appellant has assailed the evidence of the approver.
8. It is a fact the Ghanshyam PW 11 impleaded both Gajanand and Kalyan and further stated that both of them were present throughout the commission of crime Both these persons were acquitted by the trial court. But this fact in itself is not sufficient to discredit his testimony. The trial court acquitted both of them by giving benefit of doubt and did not hold that his testimony was false regarding the accused The acquittal of Rahimbux also does not detract the value of the statement of the approver, because Rahimbux was acquitted for the reason that the prosecution failed to prove and produce the identification memo on record and the court did not consider it safe to convict him on the uncorroborated testimony of the approver alone. The learned Public Prosecutor also conceded that the guilt was not brought home to the accused.
9. It was further urged by the learned Counsel for the appellant that Ghanshy am was not present at the scene of occurrence and is a got-up witness. He kept mum till the police examined him. The explanation that due to, the fear of Lajjaram dacoit he did not divulge the facts to any one was not reliable and the natural inference should be that he was not on the scene of occurrence, I do not agree with the contention The only reasonable inference should be that he kept mum due to tenderness of age, rustic simplicity and fear of being arrested in a murder case as he was an accomplice. The facts of this case reveal that neither the patents nor the in-laws of Smt. Mahadevi (deceased) were interested in prosecuting any one. Ghanshyam had no axe to grind, against the appellant Kamaiuddin. In such circumstances, it does not stand to reason why Ghanshyam should implicate the appellant for such a grave offence. I have examined the statement of the approver PW 11 Ghanshyam. He unfolded the entire prosecution story in vivid details. He had withstood the test of cross-examination, and bas emerged with credit. Barring the unconsequential nairaliots the substratum of his evidence bas throughout been consistent I do not have any reason to hold that his testimony in the main is unreliable or inherently in probable. The trial court has taken into consideration the infirmities in the statement of the witness and has found him reliable concerning the appellant.
10. For the reasons already mentioned above, there is no good ground for me to take a different view.
11. This takes me to the question whether the evidence of the approver was, adequately corroborated by independent evidence qua the appellant. The mainitem of evidence which has been adduced by the prosecution to corroborate the approver is that the dead body of Smt. Mahadevi was discovered in consequence of the confession of the appellant Kamaluddin.
12. Kamaluddin was arrested on July 8, 1970 Just after his arrest he expressed 1 is desire to get the dead body of Smt. Mahadevi discovered, His confession, al statement recorded by the Circle Inspector of Police on July 9, 1970 is Ex. P. 23. In this statement he has admitted that he buried the dead body after removing the stone slabs and thereafter the stone slabs were re fixed. In consequence of this information the dead body was found at the pointing out of the appellant. The 'saree' 'Ghaghra', and blouse which were found on or near the dead body were identified to be those of the deceased Smt. Mahadevi by PW 3 Motilal and PW 11 Ghanshyam. The recovery memo is Ex P 25.
13. It bas been contested by the learned coursel for the appellant that the place from where the dead body was discovered is a part of the Imambara. It did not belong to the appellant Kamaluddin. The fact of recovery at the instance of the accused is compatible with the circumstances of some body having buried the dead body and the accused having somehow acquired the knowledge about it. I do not find any force in these contentions. PW 16 Daulat Singh has stated that be prepared the site-plan Ex P. 2 of the house of the accused Kamaluddin. He has also stated that the dead body was recovered, from the residential house of the accused, PW 3 Motilal has stated that he identified the clothes of the deceased on the outer 'chabutri' of the, appellant. DW1 Abdul Sattar in his cross-examination has admitted that the accused Kamaluddin used to live in Imambara on a monthly rent of Rs. 2/-. The statement of the accused to the effect that he will get the dead body recovered from the place where he had hidden it, distinctly relates to this article discovered and it is admissible whether it amounts to confession or not, and these words by themselves show the possession of the appellant. A dead body is not a small article which can be stealthily buried in the house pf the accused. A perusal of the site plan read with the statements of the above mentioned witnesses proves beyond any doubt that the dead body was in the conscious possess ion of the, appellant.
14. I have given my most careful and anxious consideration to this aspect of the case. Having regard to the details supplied, I hold that no other person except the one connected with the crime could have known the whereabouts of the dead body and clothes.
15. It is clear to me that no person other thin the appellant would be anxious to bury the dead body of Smt. Mahadevi. in his house. In order to avoid suspicion falling upon toe appellant it was most natural for him to get rid of the dead body. The fact that he buried it in his own house further proves his complicity. Burying in somebody else's place or at some distant place might have been dangerous. His presence could be noticed and might have caused suspicion. Thus the incriminating circumstance of the discovery of the dead body from the house of the appellant is a very strong link in the prosecution case and the statement of PW 11 Ghanshayam approver stands corroborated in material particulars.
16. Besides this, the appellant Kamaluddin has denied the entire prosecution case. Even the recovery of the dead body has beep denied. This denial lends some assurance to the fact that he was denying the fact of recovery to conceal his participation in the crime. An adverse inference can be drawn against the appellant to the circumstances of the case. His Lordship Imam, J. in Pershadi v. State of Uttar Pradesh : 1957CriLJ328 laid down the law thus:.the appellant's total denial that he was ever in the service of Shankerlal, that Shankerlal had implicated him in the theft case, that he knew the deceased & that he pointed out the clothes of the deceased at the top of the brick-klin is a conduct inconsistent with his innocence. There denials were made in order to disclaim all connections with Shankarlal, with the deceased and with the latter's clothes. A court would therefore be justified in drawing an adverse inference from this against the appellant in the circumstances of the case.
17. Now remains the question of sentence. It is true that the unfortunate woman Smt. Mahadevi (deceased) was over anxious to get rid of pregnancy. Her husband was not ready to accept her. It is equally true that the appellant first refused to expel the product of conception. He might have been moved by compassionate grounds to protect the health and future life of Smt. Mahadevi Taking a conspectus of the various circumstances of the case same of which have been indicated above, I am satisfied that the ends of justice would be met by reducing the sentence.
18. The appeal is partly accepted, the conviction of the appellant under Section 314 IPC is maintained, but the sentence of seven, years' rigorous imprisonment and a fine of Rs. 2000/- is reduced to three years, rigorous imprisonment and fine of Rs. 1000/-; in default of payment of which the appellant is to undrego further rigorous imprisonment for a period of six months. It is, however, made clear that the appellant would be entitled to get a set off or adjustment under Section 428 Cr.P.C. 1973 of the period, if any, during which he remained in jail as an under trial prisoner.