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2000 DIGILAW 493 (PAT)

Sumitra Devi v. State Of Bihar

2000-03-29

M.L.VISA, R.N.PRASAD

body2000
Judgment M.L.Visa, J. 1. A mother and her son, the two appellants in this appeal before us, are aggrieved by the judgment and order dated 6-6-1987 passed by 8th Additional Sessions Judge, Munger in Sessions Case No. 346 of 1986/36 of 1986 convicting and sentencing each of them to undergo imprisonment for life under Sec. 302 read with Sec. 34 of, the Indian Penal Code (in short, IPC). 2. The prosecution case, in short, is that the marriage of Mithila Kumari, the daughter of informant Narayan Yadav (PW 4), was solemnised with appellant Ram Nandan Yadav in the year 1979. The Roksadi was performed in the month of April, 1984 and since the Mithila Kumari, was living in her sasural in the house of co - accused Prayag Yadav, her father-in-law. On 1-9-1985 the informant on receipt of information that Mtthila Kumari was ill, reached her sasural" at about 2.30 p.m. He met Mithila Kumari who told him that her husband- appellant Ram Nandan Yadav, her mother-in-law appellant Sumitra Devi and her father-in-law co-accused Prayag Yadav were torturing her in different manner on the ground that adequate dowry was not given to them. When she was telling all these to the informant, appellant Sumitra Devi and co - accused Prayag Yadav were hearing this and at that time, appellant Ram Nandan Yadav had gone somewhere else who on the same day reached his house at about 4.30 p.m. The appellant Sumitra Devi then told appellant Ram Nandan Yadav that Mithila Kumari was complaining about them to her father. Appellant Rain Nandan Yadav became enraged and started abusing Mithila Kumari. At the same time, co - accused Prayag Yadav ordered for killing Mithila Kumari. On his order, appellant Sumitra Dev caught hold of hair of Mithila Kumari who at that time was pregnant and was sitting on a cot and pulled her on the floor. When Mithila Kumari fell down on the floor, appellant Ram Nandan Yadav assaulted her with kicks on her abdomen as the result of which Mithila Kumari spontaneously died there. The informant asked the appellants not to assault her daughter but they scolded him also and when informant raised hulla, villagers, namely, Ram Pravesh Yadav (not examined), mother of Ram Pravesh Yadav (not examined) and others reached there who also saw the occurrence. Witness Mahavir Sao (PW 5) who was with the informant also saw the occurrence. The informant asked the appellants not to assault her daughter but they scolded him also and when informant raised hulla, villagers, namely, Ram Pravesh Yadav (not examined), mother of Ram Pravesh Yadav (not examined) and others reached there who also saw the occurrence. Witness Mahavir Sao (PW 5) who was with the informant also saw the occurrence. The informant then went to Shekhpura Police Station and lodged the FIR (Ext. 3). In the FIR giving details of the aforesaid occurrence, he also stated that his daughter from time to time used to inform him that she was being tortured by both the appellants and co-accused Prayag Yadav. 3. The investigation of the case was entrusted to SI Ram Naresh Singh (PW 6) who on the next day, i.e., on 2-9-1985 reached the place of occurrence at about 11 a.m., prepared inquest report (Ext. 8) of the dead - body of Mithila Kumari, sent the dead - body for postmortem examination and after investigation submitted charge - sheet under Secs. 302/34, IPC against both the appellants and co - accused Prayag Yadav, After cognizance the case was committed to the Court of Sessions where charge under Sections 302/34, IPC was framed against both the appellants and charge under Secs. 302/114, IPC was framed against co - accused Prayag Yadav. The appellants denied the charge framed against them and their case as it appears from the trend of cross - examination of prosecution witnesses was that the deceased died of illness and they have been falsely implicated in this case. After trial both the appellants were found guilty under Secs. 302/34, IPC and were convicted and sentenced to undergo imprisonment for life. Co -accused Prayag Yadav was acquitted after giving him the benefit of doubt. 4. In order to substantiate the charge, against the appellants the prosecution has examined 7 witnesses. Narayan Yadav (PW4) is the informant and father of deceased Mithha Kumari. Mahavir Sao (PW5) is said to be an eye - witness to the occurrence. Ram Naresh Singh (PW6) is the I.O. Dr. Aftab Faiz (PW7) is the. Doctor who had held post - mortem examination on the dead - body of Mithila Kumari, Mahendra Rat (PW1), Banarsi Rat (PW2) and Kaukambhari Yadav (PW3) have not supported the case of prosecution and they have been declared hostile by the prosecution. 5. Dr. Ram Naresh Singh (PW6) is the I.O. Dr. Aftab Faiz (PW7) is the. Doctor who had held post - mortem examination on the dead - body of Mithila Kumari, Mahendra Rat (PW1), Banarsi Rat (PW2) and Kaukambhari Yadav (PW3) have not supported the case of prosecution and they have been declared hostile by the prosecution. 5. Dr. Aftab Faiz (PW7), in the evidence, has stated that on 3-5-1985 he was posted as Civil Assistant Surgeon at Sadar Hospital, Munger and on that day he conducted post - mortem examination on the dead - body of Mithila Kumari and found that there was greenish discoloration on the abdominal wall and iliac fossae, the abdomen was greatly distended with peeling of skin at places, the face was swollen and bloated and eyes were protruding from the socket and on dissection of thorax both chambers of heart were found empty and the lungs exuded dark blood. He has further stated that the spleen was found, enlarged and ruptured and according to him, the cause of death was rupture of spleen, which may be caused by kicks on the stomach or by a fall from the cot. He has proved the postmortem examination report (Ext. 6) in which the time of examination of postmortem has been stated as 8.30 a.m. on 3-9-1985. In his evidence, he has stated that the death had occurred within 46 hours from the time of post - mortem examination. His evidence supports the case of prosecution about the time of death of the deceased Mithila Kumari and it further supports the case of prosecution that deceased died of rupture of her spleen, which is possible by kicks given on her stomach or by her fall from a cot. Now, it has to be seen that evidence has been led by the prosecution against the appellants holding them responsible for causing the injuries to the deceased, which resulted in rupture of her spleen which ultimately caused her death. 6. Now, it has to be seen that evidence has been led by the prosecution against the appellants holding them responsible for causing the injuries to the deceased, which resulted in rupture of her spleen which ultimately caused her death. 6. Narayan Yadav (PW4), the informant, who is father of deceased, in his evidence, has fully supported the case of prosecution and has stated that the deceased was married to the appellant Ram Nandan Yadav in the year, 1979 and gauna took place in the year 1984 and on 1-9-1985, he received information through a man that deceased was ill in her sasural and thereafter, he went to her sasural where he reached the same day at about 2.30 p.m. and he met his daughter Mithila Kumari there who told him that both the appellants and co-accused Prayag Yadav were torturing her. According to him, at that time appellant Ram Nandan Yadav was not present in his house who came later on and when he came appellant Sumitra Devi told him that deceased was complaining. against them to her father and co-accused Prayag Yadav ordered to kill the deceased and at that time his daughter Mithila Kumari who was pregnant was sitting on a cot and appellant Sumitra Devi caught hold of her hair and pulled her from the cot to floor and appellant Ram Nandan Yadav assaulted Mithila Kumari With kicks on, her abdomen and her daughter Mithila Kumari died at the spot. He raised alarm on which Ram Pravesh Vadav, the mother of Ram Pravesh Yadav and number of other villagers came there. About Mahavir Sao (PW5) he has said that he belongs to his own Village and he was with him at the time of occurrence and witnesses the occurrence. He has proved his signature. (Ext. 1) on the FIR, He has been cross -examined at length but nothing has been elicited from him in his cross-examination to disbelieve his evidence. 7. About Mahavir Sao (PW5) he has said that he belongs to his own Village and he was with him at the time of occurrence and witnesses the occurrence. He has proved his signature. (Ext. 1) on the FIR, He has been cross -examined at length but nothing has been elicited from him in his cross-examination to disbelieve his evidence. 7. Mahavir Sao (PW5) has also supported the case of prosecution claiming himself to be an eye - witness but the Court below after considering his evidence that the house of appellants was double - storeyed building whereas the I.O. (PW6) has said that it was a three storeyed building, this witness stated - before the I.O. that when he went to the house of appellants alongwith informant he stayed at the darwaja of the house and half an hour thereafter the informant came out from the house crying that his daughter had been killed, and informant has not stated that this witness was also sitting with, him on a. cot at the time of occurrence, has disbelieved his evidence that he saw the occurrence. Without examining the reasons assigned by the Court below for disbelieving the evidence of PW5 of his being eye - witness to the occurrence if this finding of the Court below is not disturbed even then we find that there is evidence of PW4, the informant who is father of deceased and in whose presence the deceased was assaulted and died at the spot which fully supports the case of prosecution. 8. 8. Learned Counsel appearing on behalf of the appellants has submitted that admittedly at the time of occurrence, the deceased was pregnant and PW7 who is the Doctor and who held post - mortem examination on the dead - body of deceased has also in his evidence stated that the deceased was carrying pregnancy of 32 weeks but, he has also stated that there was no injury on the person of child in the womb and this completely demolishes the case of prosecution that the appellants assaulted the deceased by pulling her from the cot and by delivering kicks on her abdomen because had it been so the child in womb must have received injuries, The next argument advanced on behalf of the appellants is that the I.O. (PW6) in his evidence has stated that when he Visited the place of occurrence, he found a large number of medicines kept near a cot in the room of the deceased which suggests that the deceased at the time of occurrence was suffering from illness and was being properly attended and she died of illness. Lastly, it has been argued that had the spleen been ruptured sufficient quantity of blood must have gushed out, but the Doctor (PW7), in his evidence has stated that he found only five ounces of darkish blood. On this point, learned Counsel appearing on behalf of the appellants has not been able to show any medical authority that had there been any rupture in the spleen large quantity of blood must have gushed out. On this point that no injury was found on the child in the womb which falsifies the case of prosecution that deceased was delivered with kicks on her stomach, we find that this argument is without any merit because it is the, place where the injury was received by the deceased is important and if the kicks were received by the deceased and the place where spleen is located the question of any injury on the child in the womb does not arise because the Doctor (PW7) in. his evidence has stated that spleen is located under the 10th and 11th ribs for protection and normally the spleen is not located in the abdomen. He has further stated that spleen was enlarged which maybe due to disease and enlargement of spleen is itself a disease. his evidence has stated that spleen is located under the 10th and 11th ribs for protection and normally the spleen is not located in the abdomen. He has further stated that spleen was enlarged which maybe due to disease and enlargement of spleen is itself a disease. In Jhala and Rajus Medical Jurisprudence (6th Edition) at page 368, it has been stated that: "Normally, the spleen is very high up in the abdomen and well protected by the ribs. Thus, unless enlarged to double its size, it is not directly exposed to external injury. Penetrating injuries can certainly involve the organ. When enlarged, it is clearly vulnerable even to direct blows like kicks. Furthermore, such an: enlarged organ is friable in structure and hence likely to bleed profusely. Such profuse bleeding may prove fatal and that too rapidly, so. " 9. So from the aforesaid facts, we find that the deceased at the time of -occurrence was suffering from the disease of enlargement of spleen which, was vulnerable to direct blows like kicks or fall and there is un - controverted and convincing evidence of informant that appellant Sumitra Devi caught hold of hair of the deceased and pulled her down on the floor and appellant Ram Nandan Yadav gave kicks to her and evidence of Doctor (PW7) supports the case of prosecution that the aforesaid acts of appellants were individually responsible for causing rupture of spleen of the deceased which was the cause of death. 10. About the argument that the I.O. found medicines kept in the room of the deceased which suggests that the deceased was ill at the time of occurrence and she died of illness, we find that PW7 has said that the cause of death was rupture of spleen and he has further stated that he has not come cross any case of burst of enlarged spleen suo motu. Besides this, when there is a specific evidence of informant that both the appellants assaulted the deceased the question of making out a quite different case the enlarged spleen of the deceased ruptured without any violence does not arise. 11. In this case, both the appellants have been found guilty under Secs. 302/34, IPC. Besides this, when there is a specific evidence of informant that both the appellants assaulted the deceased the question of making out a quite different case the enlarged spleen of the deceased ruptured without any violence does not arise. 11. In this case, both the appellants have been found guilty under Secs. 302/34, IPC. The evidence on record shows that when appellant Ram Nandan Yadav came to his house, appellant Sumitra Devi told him that his wife, the deceased, had complained against them to her father and thereafter, he became enraged and started abusing the deceased and then appellant Sumitra Devi caught hold of her hair and pulled her on the floor from the "cot and appellant Ram Nandan Yadav assaulted on her abdomen by kicks. This clearly shows that there was no premeditation for committing murder of the deceased and the assault on the deceased was made in the heat of passion and on the spur of the moment and there was no intention of causing death of deceased or of causing such bodily injury as is likely to cause death. But at the same time, the evidence on record has established that the deceased not only was carrying an advance stage of pregnancy but was suffering from disease at the time of occurrence. To pull down a sick woman carrying an advance stage of pregnancy on floor and thereafter assaulting her by kicks on her abdomen clearly suggests that the appellants at least must have knowledge that their action was likely to cause death. In such circumstance, although the appellants may not be found guilty under Sec. 302, IPC but then they cannot escape the liability of committing an offence under Sec. 304, (Part-II), IPC. Both the appellants, therefore, are held guilty for the, offence under Sec. 304, Part-II read with Sec. 34 of IPC and their conviction under Sec. 302 read with Sec. 34, IPC is hereby set aside. 12. Appellant Ram Nandan Yadav has remained in jail custody in this case from 6-9-1985 to 24-6-1987 i.e., for a period of 1 year 9 months and 18 days. Appellant Sumitra Devi has remained in jail custody in this case from 6-6-1987 to 24-6-1987, i.e., for a, period of 18 days only and on 21-4-1987 when she was examined under Sec. 313, Cr. Appellant Sumitra Devi has remained in jail custody in this case from 6-6-1987 to 24-6-1987, i.e., for a, period of 18 days only and on 21-4-1987 when she was examined under Sec. 313, Cr. P.C, her age was estimated by the Court below as 55 years meaning thereby at present, she must be aged about 78 years. 13. Considering all these facts, we find that sentence of imprisonment for the period already undergone in custody for appellant Ram Nandan Yadav and sentence of imprisonment for a period already undergone in custody and fine of Rs. 5,000.00 , in default to undergo further imprisonment for a period of 6 months for appellant Sumitra Devi will meet the ends of justice. 14. In the result, the conviction of both the appellants is altered from Sec. 302 read with Sec. 34, IPC to Sec. 304 (Part II) read with Sec. 34, IPC. Appellant Ram Nandan Yadav is sentenced to imprisonment for the period already undergone by him in custody and he is discharged from the liability of the bail - bonds. Appellant Sumitra Devi is sentenced to imprisonment for a period already undergone by her in custody and to pay of the of Rs. 5,000/ - within a period of four months from today, in default, to undergo S.I. for a period of 6 months. With the aforesaid modifications, the appeal is dismissed. Ram Nandan Prasad, J. 15 I agree.