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2012 DIGILAW 182 (CHH)

BANWARILAL VERMA v. STATE OF M. P. (NOW C. G. )

2012-07-27

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. This appeal is directed against the judgment dated 2nd of September, 1995 passed in Sessions Trial No. 364/92 by the Fourth Additional Sessions Judge, Durg. By the impugned judgment, the appellants have been convicted u/s 314 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- with default sentence of imprisonment for 1 year. 2. The facts, briefly stated, are as under :- Deceased-Shashi Sahu was an unmarried girl, aged about 24 years. She was carrying pregnancy of advance stage from accused No. 3 - Shiv @ Shiv Prasad (acquitted accused). The case of the prosecution is that on 16th of June, 1992, the appellants caused her death by the act done with intent to cause miscarriage without her consent. Appellant No.1 was practicing in Homeopathy and appellant No. 2 was practicing in Bio-Chemic Medicines. The case of the prosecution is that they caused above miscarriage by administering Allopathic medicines. The further case of the prosecution is that after the abortion of the deceased, the appellants also tried to screen the evidence of the miscarriage. The appellants were prosecuted u/ss 314 & 201 IPC. The 3rd accused was also prosecuted u/s 314 read with Sections 114 & 201 IPC. The appellants were held guilty of the offence punishable u/s 314 IPC and were sentenced as above. However, the 3rd accused was acquitted of the charges framed against him. The case of the prosecution was mainly based on the evidence of Shyama Bai (PW-3- elder sister of the deceased) who deposed that on 16.6.92 at about 3-4.00 p.m. she had taken the deceased to the clinic of the appellants, and thereafter on 18.6.92 she came to know about her death and also that her dead body was kept in Government Hospital, Durg, where she was taken by the appellants in the night of 17.6.92. The learned Sessions Judge relied on the testimonies of Shyama Bai (PW3), as also the three Doctors namely- Dr. R.B. Agrawal (PW-9), Dr. M.C. Mahnot (PW-10) and Dr. D.S. Badkur (PW-11) and held that it was proved beyond all reasonable doubts that the appellants caused miscarriage of the deceased without her consent and by their such act death of the deceased was caused, therefore, they were liable for punishment as above. 3. Mr. H.B. Agrawal, learned Sr. R.B. Agrawal (PW-9), Dr. M.C. Mahnot (PW-10) and Dr. D.S. Badkur (PW-11) and held that it was proved beyond all reasonable doubts that the appellants caused miscarriage of the deceased without her consent and by their such act death of the deceased was caused, therefore, they were liable for punishment as above. 3. Mr. H.B. Agrawal, learned Sr. Advocate appearing on behalf of the appellants, argued that there is no evidence to show that the appellants committed any act with intention to cause miscarriage; evidence of Shyama Bai (PW3) is wholly unreliable; even if her evidence is accepted, it only proves that she left the deceased in the clinic of the appellants on 16th June, 1992 and nothing more; the conviction is based on conjectures and surmises; therefore, the same cannot be sustained. 4. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard, learned counsel for the parties at length and have also perused the records of the sessions case. 6. Let us firstly look into, as to what was established by the medical evidence ? 7. Dr. R.B. Agrawal (PW-9) deposed that the appellants were running a private clinic in the name and style of Mamta Swasthiya Kendra in Modern Town, Bhilai. In the night of 17.6.92 at about 2.00 a.m., he was on duty. The appellants brought the deceased to the Government Hospital and he checked the deceased who was already dead, therefore, the dead body was kept in mortuary and a report (Ex.-P/17) to this effect was sent to the concerned police station. 8. Dr. M.C. Mahnot (PW-10) conducted autopsy on the dead body of the deceased and found that the body was in stage of decomposition. Uterus was extended in the size of 6 x 5 inches and clotted blood was present in the uterus. Sanitary pad and underwear found on the dead body were stained with blood. He could not ascertain the cause of death therefore, viscera and uterus were preserved for further examination. Uterus was extended in the size of 6 x 5 inches and clotted blood was present in the uterus. Sanitary pad and underwear found on the dead body were stained with blood. He could not ascertain the cause of death therefore, viscera and uterus were preserved for further examination. A query was sent to him by the concerned police as to what was the reason of the blood clots found in the uterus, on which, he replied that it was on account of abortion as it was aborted uterus and the deceased would have carried pregnancy of 8-12 weeks. His query report is Ex.-P/15. In the cross-examination, in Para-9, he admitted that the abortion may take place on account of anemia or mental or physical stress. He also admitted that taking more tablets of analgesic group also increases the possibility of abortion. He further admitted that all these medicines are easily available in the market. He further admitted that if a pregnant lady performs continuous sexual intercourse, then also abortion is possible. In last line of Para 9 of his cross-examination, he categorically admitted that he cannot tell the reason about abortion of the deceased. 9. Dr. D.S. Badkur (PW-11) was Joint Director, Medico Legal Institute, Bhopal. According to him viscera and uterus of the deceased were sent to him in a sealed bottle in preservative for examination and opinion through the Superintendent of Police, but when he opened the bottle, he could only found viscera and uterus was not there. Therefore, he could not conduct his to pathological test. In Para-11 of his examination-in-chief, he deposed that the Autopsy Surgeon had persevered viscera and uterus in saline and has suggested for his to pathological test, whereas no body part is kept in saline for such test. Since the uterus was kept in saline, therefore, it has completely dissolved and no test on the uterus could be performed, and thus, a very important evidence was destroyed. However, relying on the observations made by the Autopsy Surgeon that blood clots were found in the uterus, he opined that abortion had taken place and since other reasons of death were found negative, therefore, the cause of death was excessive bleeding at the time of abortion. However, relying on the observations made by the Autopsy Surgeon that blood clots were found in the uterus, he opined that abortion had taken place and since other reasons of death were found negative, therefore, the cause of death was excessive bleeding at the time of abortion. Though his opinion is not based on any test performed by him, however, even if his opinion is accepted, it only proves that the deceased had aborted prior to her death. 10. Now we shall examine the evidence of Shyama Bai (PW-3). 11. Shyama Bai (PW-3) is elder sister of the deceased. She deposed that on 15th of June, 1992 at about 3-4.00 p.m., the Shashi (deceased) came to her house. Since Shashi was not traceable since last 2 days, she asked her as to where she was Shashi (deceased) replied that she was along with Tannu Didi in Sector-9 Hospital. Shashi (deceased) started weeping. She (PW-3) asked as to why she (deceased) was weeping Shashi stayed in her house in the night. At about 9-10.00 p.m., Shashi complained that she was not feeling well. She (deceased) vomited 7-8 time. She also suffered loose-motions. She suffered loose-motions and vomiting throughout the night. In the morning, Shyama Bai (PW-3) called a rickshaw for taking Shashi to the hospital. Shashi then started weeping. Shashi was being taken to Sector-9 Hospital, Bhilai. However she (Shashi) said that she wants to go to the clinic of the appellants. Shashi told her that earlier also, she had gone to the clinic of the appellants. On the way, Shashi told that she was carrying pregnancy of 3 months from accused-Shiv Prasad who had taken her to Dr. Banwarilal for abortion. Thereafter they went to the clinic of the appellants, where they met them. According to Shyama (PW-3), the 2 appellants asked the deceased that where she was for whole night and then they asked Shayma (PW-3) to leave Shashi in their clinic. She left Shashi in their clinic and came back to her house. However she did not disclose these things to anyone. On 18.6.92 she came to know that the dead body of her sister-Shashi was lying in the mortuary of District Hospital. 12. 161 Cr.P.C. statement of Shyama Bai (PW-3) was recorded on 21.6.92. Why she did not disclose all these facts to anybody till that date? However she did not disclose these things to anyone. On 18.6.92 she came to know that the dead body of her sister-Shashi was lying in the mortuary of District Hospital. 12. 161 Cr.P.C. statement of Shyama Bai (PW-3) was recorded on 21.6.92. Why she did not disclose all these facts to anybody till that date? Earlier if she was hiding about the pregnancy of her unmarried sister, but even after 18.6.92, when she came to know about her death, she did not disclose the above facts till 21.6.92. 13. Ramavtar Sahu (PW-1) is father of the deceased and Hirondi Bai (PW-2) is mother of the deceased. It does not appear from their evidence that Shyama Bai (PW-3) had told them about their above conversations with the appellants Shyama Bai (PW-3) was the elder sister of the deceased who was also residing in Bhilai. Her house was nearer to the house of her parents. It appears to be quite un-natural that such important things were not told by her even to her parents. Hirondi Bai (PW-2), in Para-4 of her examination-in- chief, specifically deposed that she had seen the dead body of her daughter (Shashi) in the mortuary and she also met with her elder daughter-Shyama Bai (PW3) on the same day, but Shyama (PW-3) did not disclose to her any reason about the death of her younger daughter (Shashi). Therefore, on such conduct evidence of Shyama Bai (PW-3) appears to be shaky. 14. Section 314 IPC relates to the death caused by act done with intent to cause miscarriage. It provides that whoever, with intent to cause the 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 be liable to fine and if the act is done without consent of the woman, it shall be punished either with imprisonment for life, or with the punishment as above. If we appreciate the evidence of Shyama Bai (PW-3), it does not disclose that either the appellants caused miscarriage of the deceased or they did any such act to cause her miscarriage which ultimately caused the death of the deceased. The learned Sessions Judge appears to have been impressed by the circumstance that the deceased was brought dead to the hospital by the 2 appellants. The learned Sessions Judge appears to have been impressed by the circumstance that the deceased was brought dead to the hospital by the 2 appellants. Only proof of such circumstance was not sufficient to hold the appellants guilty of the offence punishable u/s 314 IPC. There may be many reasons for taking a patient to a big center by a treating Doctor. On appreciation we find that on the evidence of 3 Doctors, though it was proved that the deceased had aborted, but it was not at all proved as to what was the cause for abortion and that the appellants were instrumental to that cause. In absence of any positive evidence regarding the act of the appellants to cause miscarriage of the deceased thereby further causing her death, they cannot be held liable for punishment u/s 314 IPC. On appreciation of entire evidence available on record, we do not find sufficient material against the appellants to hold them guilty of the offence punishable u/s 314 IPC. 15. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellants u/s 314 IPC are set-aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Appeal Allowed.