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2010 DIGILAW 563 (GAU)

Niru Das v. State of Assam

2010-08-10

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.M. Bora, learned Counsel appearing for the accused Appellant. Also heard Mr. B.B. Gogoi, learned Addl. P.P. Assam. 2. This appeal has been preferred by the Appellant against the judgment and order dated 31.3.2003 rendered by learned Sessions Judge, Nagaon in Sessions Case No. 5(N)/2001 convicting the accused Appellant under Section 304A, IPC and sentencing her to undergo SI for 3 months. 3. The prosecution case, in brief, is that on 30.7.1999 one Shri Ajit Borah brother of the deceased lodged an FIR with the officer in-charge of Morikolong Police Outpost informing that his unmarried sister Arati Bora died in the house of accused Appellant Smt. Niru Das, a mid-wife attached to Nagaon Civil Hospital, while conducting delivery of a child in her house. On the basis of the said FIR a crime being Nagaon P.S. Case No. 524/99 was registered under Section 314, IPC and after completion of investigation, charge sheet was submitted against the accused Appellant under Section 314, IPC. The corresponding G.R. Case No. 1262/99 was committed to the Court of Sessions, Nagaon for disposal. The learned Court of Sessions framed charge against the accused Appellant under Section 314, IPC which on being read over and explained, the accused Appellant denied the charge and pleaded not guilty. The learned trial court on completion of the trial and on consideration of the evidence and materials on record and upon hearing the learned Counsel for the parties, convicted and sentenced the accused Appellant as already mentioned above. 4. The prosecution examined altogether 4 witnesses including the I.O. and the Medical Officer who conducted the post mortem examination on the dead body of the deceased Arati Bora. The defence examined none. 5. The accused Appellant was, however, examined under Section 313, Code of Criminal Procedure from which the following positions have been found admitted: (1) The deceased Arati Bora came to the house of the accused Appellant and she was pregnant of 8 months. (2) Sixe stayed one night in the house of the accused Appellant. (3) She gave birth to a still born child in the next morning and died in her house. 6. PWs 1 and 2 are the brothers of the deceased. These two brothers did not accompany the deceased while she came to the house of the Appellant. (2) Sixe stayed one night in the house of the accused Appellant. (3) She gave birth to a still born child in the next morning and died in her house. 6. PWs 1 and 2 are the brothers of the deceased. These two brothers did not accompany the deceased while she came to the house of the Appellant. Nothing has been said by them for what purpose their deceased sister visited the house of the Appellant. They have not mentioned in their deposition whether their sister Arati Bora died due to any negligent action on the part of the accused Appellant. These two PWs are not the eye witnesses. They could not throw any light under what circumstances the deceased died. 7. The I.O. was examined as PW-3. During investigation he visited the place of occurrence and sent the dead body of the deceased for post mortem examination. He also seized one plastic saline pipe (Saline Set), which was found lying near the dead body in the house of the accused Appellant but there is no mention in his deposition whether he found any still born child. The I.O. did not examine any neighbours as witnesses from the locality. Even the seizure witnesses were not examined by the prosecution. During investigation, the I.O. examined the father and mother of the deceased under Section 161, Code of Criminal Procedure and they were cited as witnesses in the charge sheet but they were not produced before the learned trial court to record their evidence. No reason has been assigned by the prosecution why the father and mother of the deceased, who are the vital witnesses were not examined. 8. The medical officer who conducted the post mortem examination was examined as PW-4. On examination he found signs of recent expulsion of foetus (delivery) and in his opinion death was due to haemorrhage and shock following expulsion of foetus. In the cross-examination the Doctor stated that it was a case of normal delivery and nothing could be gathered from the medical evidence that Arati Borah died of malina or any other disease. 9. It is an admitted position that the accused Appellant has been working as a 'Dhai' (mid wife) in the Civil Hospital, Nagaon. She had experience in conducting delivery and she was authorized to conduct such delivery. 9. It is an admitted position that the accused Appellant has been working as a 'Dhai' (mid wife) in the Civil Hospital, Nagaon. She had experience in conducting delivery and she was authorized to conduct such delivery. It can be presumed that the deceased who was carrying 8 months pregnancy came to the house of the Appellant, being an unwed mother, to take advice from her. It may also be presumed that the deceased was in such a condition who needed immediate treatment while she visited the house of the accused Appellant. In the statement under Section 313, Code of Criminal Procedure the accused Appellant clearly stated that she pushed a saline into the body of the deceased and it is also found that the saline set was recovered and seized from her house. This is implied that she gave medical aid to the deceased who unfortunately died after giving birth to a still born child. 10. There is nothing in the evidence of P Ws 1 and 2, both brothers of the deceased, that due to negligence, not to speak of gross negligence of the accused Appellant, their sister died nor did the doctor PW 4 opine that a wrong medical aid/treatment was rendered by anybody, farless, by the accused Appellant or negligence on the part of the accused Appellant causing death to the deceased. It is only the finding and conclusion of the learned trial court that death was caused due to gross negligence of the accused Appellant. Such finding and conclusion has no backing of the evidence on record. Moreover, as already observed earlier that the prosecution, for some reasons known to it only preferred not to examine the father and mother of the deceased although they were named as witnesses in the charge sheet. In my considered view, it amounts to withholding of witnesses. Such withholding of witness/witnesses may be due to the reasons that had the father and mother of the deceased were produced and examined before the learned trial court, they would not have supported the case of the prosecution and it would have rather helped the defence. Without further discussion on the aforesaid aspect it can be said that the prosecution made no serious attempt in discharging its duties and responsibilities in proving its case. Without further discussion on the aforesaid aspect it can be said that the prosecution made no serious attempt in discharging its duties and responsibilities in proving its case. Thus, in my considered view, the prosecution failed to prove its case beyond reasonable doubt, not to speak of beyond all reasonable doubts, as required under the criminal jurisprudence. The Apex Court in Jacob Mathew v. State of Punjab and Anr. (2005) 6 SCC 1 , held that the accused doctor did something or failed to do something which in a given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do the result of which was most likely imminent danger. Further, it is necessary to show that death should have been the direct result of a rash and negligent act of accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. The expression "rash and negligent act" within the meaning of Section 304A has to be read as qualified by word "grossly". In the present case no such case, not to speak of criminal negligence, against the accused Appellant, has been made out. 11. In view of the above, I differ from the findings and conclusion arrived at by the learned trial court and I am disinclined to affirm/confirm the conviction recorded and sentence imposed by the learned trial "court vide impugned judgment and order dated 31.3.2003. The prosecution, as I could find and concluded as above, could not prove its case beyond reasonable doubt and the benefit of such doubt should be given to the accused Appellant. Accordingly the judgment and order dated 31.3.2003 convicting and sentencing the accused Appellant stands set aside and quashed. The accused Appellant stands acquitted on benefit of doubt. Appeal, accordingly, stands allowed. 12. Return the LCR. Appeal allowed.