JUDGMENT :

N.V. RAMANA, J.

1. This criminal appeal is preferred by the AppellantState of Madhya Pradesh by special leave against the impugned order dated 12.01.2009 passed by the High Court of Madhya Pradesh, Bench at Jabalpur in Criminal Appeal No. 923 of 2005, wherein, High Court allowed the appeal preferred by respondent herein and set aside the order of conviction & sentence passed by the trial court on 05.04.2005 under Sections 376(1) and 306 of the Indian Penal Code.

2. The factual matrix as advanced by the prosecution, necessary for disposal of this case is that on 13.04.2004, at around 6.00 P.M., Rinky @ Inky (hereinafter referred as ‘deceased’) started vomiting. The deceased was taken to Dr. Tripathi’s dispensary, but he was not available therein. Therefore, deceased was taken to the quarter of Dr. Tripathi. After being examined by Dr. Tripathi, deceased was declared dead.

3. On the basis of Merg intimation/information of death of the deceased (Ex. P/3) by Dinesh Prasad Kushwaha (PW3), father of the deceased, Merg No. 25/04 was registered by J.B. Singh Chandel (PW9). The post mortem of deceased was conducted by Dr. S.D. Kanwar (PW6).

4. Thereafter, on Merg Inquiry, it was found