M.C. Jain, J.
1. The Additional Sessions Judge No. 1 Hanumangarh, by his judgment dated 26-11-1977 convicted the appellant Shersingh of the offence Under Section 304, part II, IPC and sentenced him to four years' rigorous imprisonment and Dayawati, appellant No. 2, whowas convicted for the offence Under Section 317, IPC, was given the benefit of probation.
2. The prosecution case, in brief, is that on 9-9-1974 Mokamsingh (PW 4) who was serving in the Railway as key-man, was coming from Hanumangarh town to the Junction along with the Railway line before the arriva of the 8 'O'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 is crying. Bahadur Ram (PW 3) 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 dred. On Bahadur Ram's report (ExP/7), case Under Section 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 Ramkishan 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 3.30, 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.
3. The appellant Shersing was charged for the offence Under Section 304, IPC, by the Additional Sessions Judge, Hanumangarh and Dayawati was charged for the fferce Under Section 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 Paras Mal Jain. PW 2 Dr. Rajendra Kumar Sathi, PW 3 Bahadur Ram, PW 4 Mokamsingh, PW 5 Lakhan Lal, PW 6 Yashpal, PW 7 Shanker Lal, PW 8 Dharmchand, and PW 9 Ram Kishan. The statements of the accused person 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.
4. I have heard Shri S.K. Goel, learned Counsel for the accused appellants, and Shri Niyazudin Khan, learned Public Prosecutor, for the State
5. In this appeal Shri S.K. Goel, learned Counsel for the appellants, has challenged the conviction of the appellant Shersingh before me So far as the appellant Dayawati is concerned, her conviction has not been challenged. As regards the appellant Shersingh Shri Goel, learned Counsel for the appellants, urged that there is not an iota of evidence against the appellant Shersingh connecting him with the offence Under Section 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 Shersingh 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 (PW X), 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 Shersingh. He has denied to have stated to the Police that Shersingh, 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 in no way incriminatory against the appellant Shersingh. 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 Shersingh is lacking and does not in any way connect him with the commission of the offence.
6. It is significant to note that there is no evidence on record to the effect that the child was abandoned by Shersingh. In the absence of connecting evidence, the conviction of the appellant Shersirgh, in my opinion, cannot be sustained and the appellant Shersingh deserves to be acquitted of the offence Under Section 304, part II, IPC.
7. In the result, the appeal of the appellant Shersingh is allowed. His conviction and sentence (Under Section 304, Part IT, IPC) are set aside and he is acquitted of the offence Under Section 304, Part II, IPC. However, the appeal of Dayawati is dismissed.