Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 632 (JHR)

PATO DEVI v. STATE OF BIHAR

2002-06-10

VISHNUDEO NARAYAN

body2002
Judgment : VISHNUDEO NARAYAN, J. ( 1 ) THIS appeal has been directed by the appellants named above against the judgment and order dated 29/06/1996 passed in S. T. No. 24 of 1991 by Sri Gopal Prasad, 6th Addl. Sessions Judge, Palamau at Daltonganj whereby all the appellants were found guilty for the offence punishable under S. 313 or in the alternative u/s. 315, IPC and they were convicted and sentenced to undergo R. I. for two years. ( 2 ) THE prosecution case has arisen on the basis of the fardbeyan of P. W. 3 Kanta Devi, the informant, wife of P. W. 8, Jageshwar Sao recorded by the Sadar Police Daltonganj in the Sadar Hospital at Daltonganj on 19-5-1990 at 19. 00 hours regarding the occurrence which is said to have taken place on 18-5-1990 at 6. 00 p. m. in Village Sinduria, P. S. Sadar, Daltonganj. ( 3 ) THE prosecution case in brief is that appellant Pato Devi, wife of Rameshwar Sao told the informant that her ox has caused damage to her eucalyptus tree which has been denied by the informant as her ox was tied with the peg and on that an altercation took place between them. It is alleged that appellant Pato Devi felled her on the ground and started assaulting the informant on her womb. The prosecution case further is that appellants Lal Bihari Sao, Kameshwar Sao and Mahendra Sao came there running and they also assaulted her on her womb by fist and kick. It is also alleged that the informant was in the family way at that time having six months pregnancy. It is also alleged that the informant has become senseless and when she regained senses at 8 Oclock in the night she found that she has already miscarried. The husband of the informant came in the following morning and he was reported about the occurrence and he brought the informant to the Hospital for treatment. ( 4 ) THE appellants have pleaded not guilty to the charges levelled against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case out of enmity which is still existing and alive between the parties. ( 4 ) THE appellants have pleaded not guilty to the charges levelled against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case out of enmity which is still existing and alive between the parties. ( 5 ) IN view of the oral and documentary evidence on the record, the learned Court below found the appellants guilty for the offence punishable under Ss. 313 and in the alternative 315, IPC and convicted them and sentenced them as stated above. ( 6 ) THE prosecution has examined 12 witnesses in all to substantiate the charges levelled against the appellants. P. W. 3 is the informant of this case. P. Ws. 1 to 5 and 8 are not the eye-witnesses of the alleged occurrence which will transpire from the evidence on the record. P. W. 11 is the doctor who has conducted the post-mortem examination of the foetus in question and his report is Ext. 2 in this case. P. Ws. 4, 6, 7, 9 and 10 have been tendered. The I. O. has not taken oath for the prosecution for the reasons best known to him. However, P. W. 12, a formal witness, has proved the formal FIR Ext. 3 in this case. Ext. 1 and 1/1 series are the signatures of P. W. 2 and one Jagdeo Prasad on the inquest report. The I. O. has not taken oath for the prosecution for the reasons best known to him. However, P. W. 12, a formal witness, has proved the formal FIR Ext. 3 in this case. Ext. 1 and 1/1 series are the signatures of P. W. 2 and one Jagdeo Prasad on the inquest report. ( 7 ) ASSAILING the impugned judgment and order of the learned Court below it has been submitted by the learned Counsel for the appellants that there is no iota of legal evidence on the record to substantiate the prosecution case and the learned Court below has erred gravely in finding the appellants guilty alternatively for the offence punishable under Section 313, I. P. C. or 315 I. P. C. It has been contended that there is no evidence at all on the record to show that P. W. 3, the informant has sustained any injury on her womb or anywhere on her person in the alleged occurrence and there is also no iota of any evidence that the informant has miscarried the foetus though as per prosecution case she has been hospitalized and treated there but no doctor or treating physician has taken oath to prove the fact that the informant has miscarried as a result of the alleged assault by the appellants on her womb. It has also been submitted that as per prosecution case there was an alteration which resulted in the alleged assault on the informant firstly by appellant Pato Devi and thereafter by other appellants but the averment made in the fardbeyan of the informant or her evidence on the record does not at all whisper the fact that the appellants had knowledge that the informant was carrying pregnancy at the time of the occurrence and the assault was perpetuated on her with the sole intention of causing miscarriage. Referring the evidence of P. W. 11, the doctor, who has conducted the post- mortem examination of the foetus in question it has been contended that P. W. 11 has not specifically stated in evidence on oath that the alleged miscarriage of informant has been caused due to the alleged assault on her womb. Referring the evidence of P. W. 11, the doctor, who has conducted the post- mortem examination of the foetus in question it has been contended that P. W. 11 has not specifically stated in evidence on oath that the alleged miscarriage of informant has been caused due to the alleged assault on her womb. It has been submitted that there has been inordinate delay in instituting the case against the appellants and they have been falsely implicated in this case as a result of after-thought due to the admitted enmity which is still existing and alive between the parties. Lastly it has been submitted that in a case of criminal miscarriage the woman alleged to have been miscarried must be examined by a doctor to substantiate the case and also to correlate the foetus with the said woman. ( 8 ) THE learned A. P. P. has submitted that P. W. 3 was in a family way having a pregnancy of six months and her foetus has been miscarried as a result of assault by the appellants and the said foetus has been brought to the P. S. by the husband of the informant and P. W. 11, the doctor has conducted the post-mortem examination of the foetus and has opined that the death of premature female child of six months was caused by abortion by injury on the mother. The learned A. P. P. has also submitted that P. W. 3, the informant has deposed that the appellants have assaulted on her womb and other prosecution witnesses, though not ocular, have stated that the informant has told them regarding the assault on her womb by the appellants which has resulted in her miscarriage. ( 9 ) IT will admit of no doubt that there was enmity between the informant on the one hand and Pato Devi and Lal Bihari Sao the appellants on the other hand and said enmity is still existing and alive and this fact has been admitted by P. W. 2 in para 7 of his deposition. P. W. 2 has also deposed that the parties to this case are not on visiting and talking terms for the last one year prior to the occurrence. In this background we have to scrutinize the evidence on the record. P. W. 2 has also deposed that the parties to this case are not on visiting and talking terms for the last one year prior to the occurrence. In this background we have to scrutinize the evidence on the record. The genesis of the occurrence as per the prosecution case is said to be the damage caused to the eucalyptus tree of appellant Pato Devi by the ox of the informant. The non-examination of the I. O. is a lacunae of the prosecution case as the material fact regarding the damage caused to the eucalyptus tree as alleged has not been brought on the record to substantiate the very genesis of the prosecution case. The absence of objective finding of the I. O. regarding the place of occurrence has caused serious prejudice to the appellant in this case. P. W. 3, the informant in her evidence on oath has not even whispered that the appellants were in know of the fact that she was in the family way having a pregnancy of six months. She has deposed in para 6 of her evidence that she has aborted at 8 Oclock in the night in her house and there was profuse bleeding on her cot and no person of the village had come to see her. The non-examination of the I. O. has further caused prejudice to the appellants as the evidence adduced by P. W. 3 in para 6 has not been corroborated in the absence of the objective finding of the I. O. The most important ingredient of Sections 313 and 315 is that the criminal act of assault must have been done by the accused with intention of causing miscarriage and the appellants must be in know of the fact that the informant was in the family way having the pregnancy of six months. P. W. 11 has specifically deposed in para 6 of his evidence that he could not form a definite opinion regarding the cause of miscarriage in question. He has further deposed that when the mother jumps in a ditch, the child may get indirect injury and the opinion about cause of abortion may be formed by examining the mother but even then definite opinion cannot be formed about the definite cause of abortion. He has further deposed that when the mother jumps in a ditch, the child may get indirect injury and the opinion about cause of abortion may be formed by examining the mother but even then definite opinion cannot be formed about the definite cause of abortion. Even the evidence of P. W. 11 does not corroborate the fact that the informant has miscarried as a result of the alleged assault. There is no legal evidence on the record, in absence of the medical examination of the informant, to connect or correlate the informant with the foetus in question. The learned Court below did not meticulously examine the evidence on the record in proper perspective and has gravely erred in finding the appellants guilty alternatively for offence under Section 313 or under S. 315, I. P. C. It is relevant to mention here that law does not envisage or endorse conviction of a person in such a manner which is itself an illegality vitiating the impugned judgment. ( 10 ) AFTER considering all the facts, circumstances and the materials on the record it is crystal clear that the impugned judgment of the Court below suffers with illegality which requires an interference therein. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the Court below is hereby set aside. All the appellants named above are not found guilty of the charges levelled against them and they are accordingly acquitted and discharged from the liability of their bail bonds. Appeal allowed. --- *** --- .