Dipak Misra, J.@mdashIn this appeal preferred u/s 374(2) of the Code of Criminal Procedure (hereinafter referred to as ''the Cr.PC'') the appellants, two in number, have called in question the legal propriety and validity of the judgment of conviction and order of sentence passed by the learned Sessions Judge, Balaghat, in Sessions Trial No. 109/88, whereby he has convicted the appellatns of an offence punishable u/s 314 of the Indian Penal Code (in short ''the IPC'') and sentenced each of them to undergo rigorous imprisonment for a term of four years.
2. The prosecution case, in brief, is that Jaiwanti Bai, the deceased had married two scores before the date of occurrence hut after one year of solemnisation of marriage her husband deserted her on the ground that she had certain defects in her legs. Being deserted by her husband, having no other option, she came to stay with her brother, Harchandra. She had been sleeping with Kamlabai at the house of the latter. On 25-4-1988 when she came to the house of her brother she was in tremendous physical pain which persuaded Harchandra to call the Kolwar, Sadaram and thereafter inquired from her about the reason of her pain and at that stage she mentioned that the accused-Lakharam had made her pregnant. It was also stated by her that Koturam Pendhariya and Lakharam in order to get an operation done called Dr. Turkar to the house of Kamlabai and the said doctor administered an injection and gave her some pills to be taken. After availing this treatment her pain increased. On the basis of the statement made by the Jaiwanti Bai, the deceased, Patel Tcjram prepared the report vide Ex. P-2 and gave it to the Kotwar, Sadaram to file in the concerned Police Station. On the next day the Kotwar-Sadaram went to the Police Station situate at Kiranapur and submitted the report to the Sub-Inspector of Police, A.R. Tiwari, who registered it as required under law. Further case of the prosecution is that the said Jaiwanti Bai was initially treated at the Primary Health Centre, Kiranapur. The lady doctor in the said hospital treated her and submitted her report and thereafter, she was taken to the hospital at Balaghat and eventually, she breathed her last on 26-4-1988due to scpticemia. The post-mortem was conducted by Dr. (Smt.) Basant Lata Dubcy (P.W. 5).
3. The prosecution examined the witnesses u/s 161 of the Code, complied with the formalities and eventually filed the charge-sheet u/s 314 of the IPC in the Competent Court which in turn, committed the matter to the Court of Session.
4. The accused persons abjured their guilt and pleaded that due to enmity the informant, Harchandra, the brother of the deccascd-Jaiwanti Bai, had falsely implicated them.
5. The prosecution in order to establish its case examined 10 witnesses. Harchandra (P.W. 1) is the brother of the deceased; Kamlabai (P.W. 2) with whom the deceased was sleeping for the last one year before the date of occurrence; Tejram (P.W. 3); Sadaram (P.W. 4), who was the Kotwar of the village; Dr. (Smt.) Basantlata Dubey, the Gynaecologist (P.W. 5), who had treated the deceased; Dr. (Smt.) Kusum Dehariya (P.W. 6), who sent the relevant death report of the deceased; S.R. Tiwari (P.W. 7) is the Investigating Officer; Dr. A.K. Shukla (P.W. 8), who conducted autopsy on the dead-body of Jaiwanti Bai; Santosh Singh (P.W. 9), who was the doctor at the Primary Health Centre, Kiranapur; and Shri Rajdeo Singh (P.W. 10), a formal witness.
6. The learned Trial Judge considering the ocular as well as documentary evidence brought on record came to hold that the prosecution had been able to prove its case beyond reasonable doubt and accordingly recorded the order of conviction and sentenced the accused-appellants as has been indicated hereinbefore.
7. Assailing the aforesaid order of conviction, it is submitted by Mr. Jagat Sher Singh, learned Counsel for the appellants that the learned Trial Judge has fallen into gross error by believing the statement made by the deceased-Jaiwanti Bai to Harchandra and Tejram, though their version was not to be believed as it did not meet the criteria laid down for placing reliance on the dying declaration. The learned Counsel has submitted that there is ample material on record to show that Jaiwanti Bai while giving her statement which has been treated as the dying declaration was in a state of delirium and hence, the said version should have been totally ignored. The learned Counsel has further proponed that the two material witnesses, namely, Budhram and Hiraman who were at the place of occurrence, have not been examined and no explanation has been given for their non-examination, though they are material witnesses. It is further urged by Mr. Singh that the doctor who had treated the deceased-Jaiwanti Bai, as it appears, could have recorded the statement with regard to the role played by the accused persons, but the same does not find place in her version, which goes a long way to disbelieve the case putforth by the prosecution. It is also highlighted by the learned Counsel for the appellants that naming of the accused by the deceased is not unimpeachable, established and when the whole case is founded on that basis it is not desirable to sustain the order of conviction. Quite apart from the above, it has been canvassed by Mr. Singh that if the evidence of Dr. (Smt.) Basantlata Dubey is scanned and scrutinised in proper perspective, it becomes perceptible that the death might have occurred due to natural causes and not due to the administration of medicines and hence, the accused-appellants should not have been convicted for the offence punishable u/s 314 of the IPC. It is also putforth by him that the deceased died after considerable lapse of time due to development of septicemia and that is also a factor which goes in favour of the defence.
8. Mr. Rabertson, learned Government Advocate for the State, on the contrary, has contended that the Trial Court has believed the version of the witnesses and their version being credible and reliable, no fault can be found with the order of conviction. It is argued by him that the deceased was totally in a conscious and proper state of mind and she had categorically named the accused persons and attributed the specific roles to them and in view of that there is no reason to find fault with the impugned judgment. The learned Counsel for the State has urged with vehemence that the life spark of a poor lady got extinguished due to an act of carnality by Lakharam, who made her pregnant and the other accused co-operated with him in the heinous crime and, accordingly they have been rightly dealt with severely and, therefore, this Court should be slow to interfere.
9. To appreciate the rival submissions raised at the Bar, I have carefully perused the judgment of the learned Trial Judge. The learned Counsel for the parties have taken me through the evidence as well as the documents brought on record. It is not disputed at the Bar, that the life spark of the deceased became extinct due to septicemia. Both the accused persons have been charged u/s 314 of the IPC. The aforesaid provision provides that whoever with intent to cause miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also liable to fine. The said section also provides that if the act is done without the consent of the woman, shall be punished either with imprisonment for life or with the punishment abovementioned. The explanation to the said section makes it quite vivid that an offender need not know that act is likely to cause death. Thus, the basic ingredients of this offence are that an illegal act is done which is dangerous to the life of the woman and the same is performed with intention to cause miscarriage. It is immaterial whether by the act miscarriage was not caused. The burden is on the prosecution to demonstrate that the death was caused on account of the act committed by the accused.
10. Keeping the aforesaid provision in view the evidence brought on record has to be scrutinised. The learned Counsel for the appellants made tremendous efforts to file dents in the order of the learned Trial Judge, who has directed himself into quite a different realm. In my considered view, the whole exercise was absolutely unnecessary. The real crux of the matter is whether the accused had done to cause any act to effect miscarriage of a woman and such an act led to death of the said woman. In this context, I think it apposite to reappreciate the evidence in detail which this Court feels obligated to do.
11. P. W. 1 is the brother of the deceased. In his deposition he has stated that he had inquired from his sister about the pain and agony she was suffering from and in reply she had stated that Lakharam had made her pregnant and he along with Koduram had gone to fetch Dr. Turkar for her treatment and Tukaram had administered injection and given her two pills to eat. It is also in his deposition that the medicine was given so that the operation would take place. After taking the medicines when she was in more pain, Tejram told Budhram and Hiraman to fetch Dr. Turkar, who refused to come and said that she should be taken to Kiranapur or Balaghat. Because of this situation she was taken to Kiranapur Hospital wherein a lady doctor examined her. The lady doctor opined that the child had died and the patient should he taken to Balaghat. As advised, she was taken to Balaghat where she died after 10 to 11 days. This witness in the cross-examination has deposed that he had informed the police with regard to the role played by Dr. Turkar, but the same has not been written in the statement recorded u/s 161 of the Cr.PC and that was the responsibility of the police. He has admitted that Budhram and Hiraman are co-villagers. He has admitted that Kamlabai had also accompanied Jaiwanti Bai to his house. He has also admitted that Kamlabai had not told that how the medical treatment was availed. He himself has admitted that his sister prior to death had never complained about Lakharam.
12. Kamlabai (P. W. 2), who has turned hostile in her cross-examination has stated that the police had not asked her anything about the incident. She has deposed that Jaiwanti Bai was staying in her house and as there was lack of space in the house of her brother. Though she has admitted that Lakharam was having illicit relationship with Jaiwanti Bai and has stated that Dr. Turkar had administered injection and medicine but she had not stated before the police that Jaiwanti Bai died due to this treatment.
13. Tejram (P.W. 3), who has deposed that Jaiwanti Bai told her about the administration of injection and medicines to her in the cross-examination has admitted that by the time he reached the house of Harchandra, Jaiwanti Bai was in tremendous agony and was unable to state cohesively and she was stating the name of Lakharam. He has admitted that he had not sent anyone to call for the doctor.
14. Sadaram (P.W. 4), who has described about the physical condition of Jaiwanti Bai in the house of Harchandra has spoken about what happened thereafter. This witness has been declared hostile and cross-examined by the prosecution. He has totally disowned the prosecution story.
15. P.W. 5 is the Gynaecologist, who was in the hospital at Balaghat. In Paragraph 2 the said witness has stated as under :--
"After cleaning and drapping the parts, abdomen opened in layers. Peritoneal cavity opened, there was no blood in same cavity but contusion present over dome of bladder and clotted blood was present, below serosal layer of lower segment (Impending rupture). Uterus myomctrial fibers were disruptured and contused. Her uterus was opened at the side of impending rupture. Foul smelling blood discharge was present in the uterine cavity. Premature still birth male child was extracted by vertix. Placenta removed manually. Repair of uterus was done. Abdomen was closed back in layers after haemostaiasis. Patient stood the operation well."
In Paragraph 5 she has deposed as under :--
"5. After her operation, the condition of Jaiwanti Bai had improved but she died on 6-5-1988 the septicemia and peripheral circulatory failure."
16. In her cross-examination in Paragraph 6 she had admitted that due to administration of pills above condition could not be caused. She has also stated that in the instant case outer force was also applied, which may be massage.
17. The main thrust of the matter is whether the accused appellant No. 1 had administered the medicines and Lakharam was instrumental in doing so. As is manifest the entire prosecution is based on the evidence of Harchandra, Tejram and Kamlabai. The deceased has told Harchandra (P.W. 1) that she was administered medicines by Dr. Turkar, who was brought by Budhram, Hiraman and Lakharam. As far as the evidence of Harchandra is concerned, as has been stated above, the deceased had merely stated that Dr. Turkar had attended to her. It is significant to state here there is omission of this material fact in the case diary statement. Such an omission, in my considered opinion, creates a hole in the case of prosecution. If the deceased-Jaiwanti Bai had told Harchandra there is no reason not to record the same in his statement recorded u/s 161 of the Cr.PC. As he has not been able to say, a new version has been introduced in the Court. As far as Tejram is concerned, he has stated that the doctor was brought by Lakharam and Koduram who had given injection and two pills. This witness has not been able to state about the name of the doctor, who treated the deceased. He has admitted that at the time of staling Jaiwanti Bai was in a state of delirium and sometimes was saying that she was made pregnant by Sadaram and sometimes she took the name of Lakharam. The name of the accused No. 1 is not staled.
18. Another aspect which weighs consideration that no one has clearly stated that Dr. Turkar, who had attended the deceased, but the identity is not known. In absence of particulars, it will be not appropriate to give total credence to such a dying declaration. This view of mine gets support from the decisions rendered in the case of
19. The next aspect which requires to be considered is that deceased was treated for 10 to 11 days at Balaghat. It is not in evidence that the deceased was in a state of unconsciousness. True it is, there is material that latter on she had developed septicemia but the concerned doctor has not stated that the deceased was not able to speak. There is no reason why Jaiwanti Bai had not stated so before the doctor. That creates a sense of doubt.
20. Another aspect which requires consideration is that the doctor has deposed that such injuries could have been caused due to massage and pills were not possible to cause this kind of injury that had been caused. There is some evidence that if powerful injection is given it might cause this kind of problem. There is no evidence what kind of injection was given. This also creates sense suspicion and doubt.
21. In view of my preceding analysis, I am of the considered view, that the prosecution has not been able to prove the allegations made against the accused-appellants beyond reasonable doubt. Hence, the appellants are entitled to benefit of doubt. Accordingly the judgment of conviction and order of sentence are set aside and the accused-appellants are directed to be discharged of their bail bonds.
