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2022 DIGILAW 1123 (JHR)

Rajendra Sao v. State of Jharkhand

2022-09-07

NAVNEET KUMAR

body2022
JUDGMENT : NAVNEET KUMAR, J. 1. This appeal is preferred against the Judgment of Conviction and order of sentence dated 23.07.2005 passed by the learned Additional District & Session Judge, FTC, Koderma, in S.T. No. 321 of 2000, arising out of Koderma P.S. Case No. 238 of 1997, corresponding to G.R. No. 506 of 1997, whereby the sole accused appellant has been convicted for the offence punishable under Section 316 of IPC and sentenced to undergo R.I. for seven years and also to pay a fine of Rs. 5,000/- (Rupees five thousand) and in default of payment of fine, further ordered to undergo simple imprisonment for one year under Section 316 of IPC. The learned trial court further ordered that the fine imposed upon the accused shall be paid to the victim woman Urmila Devi. 2. The allegations against the appellant arose in the wake of the complaint petition bearing No. 156 /97 which was filed by the informant Prakash Yadav (PW-5), husband of the victim Smt. Urmila Devi. Later this complaint was converted as police case bearing Koderma P.S. Case No. 238 of 1997 and a formal FIR was drawn to this effect u/s 406, 420, 313 & 316 of IPC. In complaint petition, it was stated that the accused Rajendra Sao, who was said to be a quack (a fraudulent doctor without minimum required qualification) was called for by the informant on 16.06.1997 at about 12.00 noon, when his wife was experiencing delivery pain. The accused had given assurance to get relief with her pain, when three injections shall be injected to her and further he had stated that he would charge to a sum Rs. 500/- for the said purpose. Further the said injection was injected to Urmila Devi and just after that her pain was increased and she became restless and the husband of Urmila Devi, found that his wife was not feeling well, then he told to the accused that why he had committed wrong with his wife, but after getting some assurance from the said accused, the victim Urmila Devi was admitted in Holly Family Hospital, Koderma, where with the help of expert doctor and operation dead child was born on 17.06.1997 and then the informant claimed from the accused to reimburse the expenditure incurred during the treatment of Urmila Devi and claimed Rs. 8,000/- but the accused threatened to him that he would lodge a false case against the informant. It was further stated that after getting discharged from the Holly Family Hospital, then on 25.07.1997, the informant went to concerned P.S. and when the police did not institute the case of the informant then he filed the complaint petition before the Court of A.C.J.M. Koderma on 16.08.1997. After that the case was sent to Koderma P.S. for the institution and registration as police case. 3. Thereafter the case was lodged as Koderma P.S. Case No. 238 of 1997 and after the investigation, the police submitted the charge-sheet against the accused person u/s 316 & 313 of IPC. The learned A.C.J.M. took the cognizance of the case and the case was committed to the Court of Sessions for trial and the charges were framed against the accused person under sections 313 and 316 of IPC on 16.05.2001, to which, he pleaded not guilty and claimed to be tried and after taking the evidence of the prosecution witnesses, the statement of the accused person was recorded under Section 313 of Cr.P.C. against which, he denied the allegations. The defence case is total denial to the occurrence as alleged. It is further case of the defence is that due to personal grudge and enmity, this case was filed. It is further case of the defence is that in this regard a Sanha was lodged by the accused person as it was marked as Exhibit No. A and the learned court below after conducting the full fledged trial passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Mr. Deepak Kumar, the learned defence counsel appearing on behalf of the appellant and Mr. Tarun Kumar, APP appearing on behalf of the State. Arguments advanced on behalf the appellant 5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the learned trial court has not meticulously examined the evidences on record and passed the impugned judgment of conviction on surmises and conjectures without an iota of evidence. It is further pointed out that the I.O. in this case has not been examined and non-examination of the I.O. is fatal to the prosecution under the facts and circumstances of this case and it has caused serious prejudice to the defence of the appellant. It is further pointed out that the I.O. in this case has not been examined and non-examination of the I.O. is fatal to the prosecution under the facts and circumstances of this case and it has caused serious prejudice to the defence of the appellant. Further it is found that the child of PW-6 was said to have died in the Holly Family Hospital, but neither any doctor nor even any staff have been examined on behalf of the prosecution to substantiate the charge that the quick unborn child had died due to the injection, which is said to have been administered by this appellant in the house of PW-6. It has further been pointed out that there is no trace of evidences adduced on behalf of the prosecution about the cause of death brought on record and the learned trial court has passed the impugned judgment without any basis against the appellant. It has further been pointed out that the learned trial court has placed the reliance upon the testimonies of PW-5 and PW-6 in spite of various infirmities in their evidences and in spite of the fact that the other inmates of the house being father and mother of the informant and the independent witnesses of the village have not supported the statement of PW-5 and PW-6 on the factum of occurrence. It has further been submitted that the judgment of the court below suffers from the aforesaid misreading and misconstruction of the evidence of the two hostile witness namely PW-3 and PW-7 which had rendered the findings of the trial court as perverse, and there is no evidence of the family members to show that PW-6 was at the stage of quick with unborn child or even to show that she was ever pregnant, and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State 6. Arguments advanced on behalf of the State 6. On the other hand the learned APP appearing on behalf of the State opposed the contentions raised on behalf of the learned defence counsel and submitted PW-5 and PW-6 had supported the case of prosecution and therefore the impugned judgment of conviction and order of sentence is passed on their evidences and there is no legal point to interfere in the same accordingly there is no merit in the appeal and it is fit to be dismissed being devoid of merit. Appraisal & Findings 7. Heard the learned counsels of the parties and perused the records including the lower court records. 8. it is found that in order to substantiate its case, the prosecution has been able to examine altogether eight witnesses, which are PW-1 Dhanu Yadav, PW-2 Koshalya Devi, PW-3 Sita Yadav, PW-4 Mani Yadav, PW-5 Parkash Yadav, PW-6 Urmila Devi, PW-7 Jairam Yadav and PW-8 Kameshwer Mahto. 9. PW-1 Dhanu Yadav was the father of the complainant/informant Prakash Yadav (PW-5). He totally denied to have any knowledge about the incident and stated that he was never examined by the investigating officer. The prosecution has declared him hostile and after being declared hostile, the prosecution was allowed to cross-examine this witness and the attention of this witness was drawn to his earlier statement under Section 161 of Cr.P.C. recorded by the I.O. (not examined), to which, he categorically denied. Since the I.O. in this case has not been examined and therefore the alleged contradictions could not be legally brought on record and thus it is manifest that this witness being the father of the complainant and father-in-law of the victim, who was residing in the same house, had not supported the case of prosecution at all. 10. PW-2 Koshalya Devi was admittedly the mother of the complainant/informant (PW-5) and she was residing in the same house at the time of alleged occurrence. She has also denied about the occurrence. 10. PW-2 Koshalya Devi was admittedly the mother of the complainant/informant (PW-5) and she was residing in the same house at the time of alleged occurrence. She has also denied about the occurrence. She explicitly stated that she was never examined by the I.O. in this case and after being declared hostile, this witness PW-2 was also cross-examined by the prosecution and the attention of this witness was drawn to her earlier statement recorded under Section 161 of Cr.P.C. by the I.O. (not examined) and therefore the veracity and truthfulness of this witness could not be ascertained and the contradiction which are allege to have been brought by the defence, has not been appreciated by the learned court below in absence of the examination of the I.O. 11. PW-3 Sita Yadav was the co-villagers and he was an independent witness examined on behalf of the prosecution and he has also not supported the case of the prosecution. He also stated that he had never been examined by the I.O. and his attention was also drawn on his earlier statement , by the prosecution, when this witness was declared hostile, to which, he stated that he had never given such statement and thus PW-3 also did not support the case of prosecution. 12. PW-4 Mani Yadav has been tendered by the prosecution for the reasons best known to the prosecution. 13. PW-5 Prakash Yadav is the complainant/informant in this case. He had stated that his wife was experiencing labour pain, when he called the accused appellant, who was the village doctor (quack) and thereafter the appellant injected the injection to his wife, consequently, the blood began to flow profusely, and ultimately his wife was shifted to the Holly Family Hospital at Kodarma, where his wife was examined and unborn child was found to be dead in the womb. He further stated that the child was taken out dead on operation and he enquired from the accused about cause of such incident and then the informant (PW-5) has lodged a case against him. He further stated that the child was taken out dead on operation and he enquired from the accused about cause of such incident and then the informant (PW-5) has lodged a case against him. In the cross-examination conducted on behalf of the defence, it is found that not a single chit of paper or document has been brought on record by this witness about the treatment of the victim in the Holly Family Hospital, not even the single chit of paper about her pregnancy has also been brought on record and therefore the allegation, as set out that the wife of this witness was pregnant and during the advanced stage of pregnancy (quick unborn child), this appellant being quake of the village (unqualified doctor) has injected her by which the alleged occurrence took place, is also not substantiated and corroborated due to non-examination of the I.O. and also due to non-examination of doctor or any nursing staff of the Holly Family Hospital where the victim had undergone treatment. Further it is found that the prosecution has hopelessly failed to prove as to whether this appellant was a quake in the village or not, who used to treat the persons in the village without any proper degree of doing medical practice and he had administered the injection to the victim when the father and mother of the complainant/informant has negated the case of the prosecution. Thus the version of this witness that the appellant was a quake (unlawful doctor) and had been treating the villagers without any proper degree of medical practice, is totally falsified because of the non-examination of the I.O. and also non-examination of any staff or doctor of Holly Family Hospital, where the victim had gone and the dead body of a child was taken out from her womb and that has been caused due to alleged injection given by the accused appellant. The prosecution has miserably failed to substantiate the deposition of witness PW–5, who was the complainant/informant of the present case. Further only one document has been brought on record and that too on behalf of the defence, i.e. Ext. A, which is the Sanha lodged by the accused appellant against the complainant/informant Prakash Yadav. 14. From perusal of the said document, Ext. Further only one document has been brought on record and that too on behalf of the defence, i.e. Ext. A, which is the Sanha lodged by the accused appellant against the complainant/informant Prakash Yadav. 14. From perusal of the said document, Ext. A, it is found that the accused appellant had instituted an informatry petition, vide Sanha No. 93 of 97 which was filed before SDJM, Kodarma on 5.07.1997 (before the date of instituting the complaint by the complainant/ informant of the present case), alleging therein that the complainant/informant had been on inimical terms with this accused-appellant and on earlier occasion also, the accused appellant was being threatened by the complainant/informant and therefore one of defences taken on behalf of the appellant was that due to inimical terms, the present case has been instituted and the defence taken on behalf of the appellant found force in absence of any iota of evidence adduced on behalf of the prosecution to corroborate the charges levelled against the accused appellant for injecting the poisonous injection to the mother of dead child (victim PW-6), by which the quick unborn child died in the womb of the victim PW-6 whose testimonies also do not gain confidence to substantiate the case as made out in the FIR. 15. PW-6 Urmila Devi, who was the mother of the quick unborn child stated that when she felt labour pain, she asked her husband (PW-5) to call a doctor and her husband brought the accused appellant, then the accused came and injected her an injection, as a result of which, the blood started oozing and she became unconscious and then she was shifted to the Holly Family Hospital, where on operation, a dead body of a child was taken out from the womb. In the cross-examination, from Para 4, it appears that her father-in-law, mother-in-law and aunt-in-law were living in the same house, but ironically none of the witnesses supported the case of the prosecution, who have been examined as PW-1 and PW-2, that this appellant had injected the injections to this witness PW-6, when she was experiencing the labour pain due to quick unborn child. It is also appeared from her statement that this witness PW-6 was under treatment under the doctor of Holly Family Hospital, but curiously there was no evidence to show that actually she was carrying the pregnancy and she was ever treated as a routine check-up of her pregnancy at the Holly Family Hospital and even on the date of occurrence, she was taken to the hospital and she was operated at the Holly Family Hospital by the doctor and the dead body of “quick unborn child” was taken out from her womb, because neither any doctor nor any staff or nurse of the said hospital has been examined on behalf of the prosecution, nor even the I.O was examined in order to substantiate as to whether she had gone under treatment in the Holly Family Hospital or not or whether the accused appellant was doing illegal practice as a quack being doctor without having proper degree or certificate of medical practitioner as a doctor. Therefore neither from the depositions of PW-5 nor PW-6, the case of prosecution has been substantiated nor corroborated. No convincing evidence has been brought on record. Neither the doctor has been examined, nor any medical certificate, nor the death certificate of quick unborn child from the Holly Family Hospital has been brought on record and therefore all the charges levelled against the appellant remains doubtful and unsubstantiated. Even the testimonies of PW-6 is not convincing and cogent to rely upon. 16. PW-7 Jairam Yadav has been declared hostile by the prosecution and his attention was drawn to his earlier statement recorded by the I.O. under section 161 of Cr.P.C. also in para-6, which, he categorically denied and since the I.O. has not been examined and therefore the truthfulness of this witness remains unascertained. In Para 10 he has stated that accused was neither the doctor nor he worked as compounder rather he was L.I.C. agent. In Para 11 he had stated that he had no knowledge about the incident nor he had seen anything about the incident. 17. PW-8 Kameshwar Mahto had stated in the Examination-in-chief that this incident was of 03.08.1999 and Prakash Yadav (the informant) had purchased land and he had falsely implicated the accused due to enmity. He stated that he was never examined by the police. He had also been declared hostile. 17. PW-8 Kameshwar Mahto had stated in the Examination-in-chief that this incident was of 03.08.1999 and Prakash Yadav (the informant) had purchased land and he had falsely implicated the accused due to enmity. He stated that he was never examined by the police. He had also been declared hostile. He had further stated that accused was not working as a doctor. He categorically denied about his earlier statement ever given by this witness before Police. In fact he had explicitly stated as the defence taken on behalf of the appellant that due to enmity he (accused appellant) has been falsely implicated. Since he deposed that the informant Prakash Yadav had falsely implicated the accused in this case due to enmity and therefore he has been declared hostile. It shows that when this witness PW-8 started speaking truth, the learned court below has declared him hostile without application of judicial mind and the prosecution was allowed to cross-examine the witnesses, which has caused serious prejudice to the defence case of the appellant by allowing a witness in a sweeping manner to be cross-examined by the prosecution after declaring him hostile. It is also not tenable in the eyes of law in view of the well settled principle of criminal jurisprudence that the prosecution has to prove its case on its own strength and not because of the flaws in the defence taken on behalf of the accused. The learned trial court has committed gross error in the appreciation of evidences in totality. 18. It is a discretion of the court to permit a witness to be cross-examined by a party calling him. The said judicial discretion must be exercised judiciously and properly in the interest of justice. The Court will not normally allow a party to cross-examine his own witness and declare the same hostile unless the court is satisfied that the statement of the witness indicates an element of hostility or that he has resiled from a material statement which he made before an earlier authority. In the present case this witness PW-8 stated that his statement was never recorded by the I.O. and since I.O. in this case has not been examined and thus it caused grave prejudice the defence of the appellant. In the present case this witness PW-8 stated that his statement was never recorded by the I.O. and since I.O. in this case has not been examined and thus it caused grave prejudice the defence of the appellant. Merely because in a trial court a witness in an unguarded moment speaks the truth, which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine his own witnesses cannot be allowed. The contingency of permitting the cross-examination of the witness by the party calling him is an extra ordinary phenomenon and permission should be given only in special cases. In the present case, the trial court wrongly exercised its discretion in permitting the prosecution to cross-examine its own witnesses particularly PW-8 & PW-7. It is a well settled principle of law that merely because a witness is declared hostile, it does not make him unreliable so as to exclude his evidence from consideration altogether. In the present case, this Court finds that the defence version was rendered probable by the testimony of the witnesses of PW-8 and PW-7 where they pointedly and specifically demolished the case of the prosecution as discussed elaborately in the foregoing paragraphs. 19. Recapitulating the testimonies of the witnesses examined on behalf of the prosecution and discussed elaborately in the foregoing paragraphs, it is well founded that the learned trial court without any cogent evidence, relied upon the depositions of PW-5 and PW-6, in spite of various infirmities in their evidences and in spite of the fact that the inmates of the house being the father and mother of the informant and independent witness of the village have not supported the case of prosecution, nor the statements of PW-5 and PW-6 on the factum of the offence alleged to have been committed by the appellant. 20. Learned trial court has committed a gross error in appreciating the evidences of PW-5 and PW-6 in absence of any corroboration by any one of the witnesses examined on behalf of the prosecution, nor any document has been produced with respect to the treatment of mother of the “quick unborn child” (PW-6) in the Holly Family Hospital nor any death certificate nor any cause of death of quick unborn child, who is alleged to have died in the womb of PW-6. Further it is also found that not a single family member of PW-6 has come forward to support even the fact that PW-6 was the mother of “quick unborn child” or even to show that she was ever pregnant. The father and mother of the informant have been examined as PW-1 and PW-2 respectively but they have not supported the case of the prosecution. There is no evidence worth the name to show that the accused did an act to cause the death of the child. Further there was no evidence to show the circumstances, under which, such act was done to make the accused appellant guilty for culpable homicide. Neither there was medical evidence to show that the quick unborn child was died due to administering injection to PW-6. None of the ingredients for constituting the offence under Section 316 of IPC are proved in the instant case, in nut-shell, which are as under: (A) Firstly, there is no reliable evidence to corroborate that PW- 6 was pregnant. (B) Secondly, there is no reliable evidence to prove that the accused had treated the victim PW-6 and injected three injections causing bleeding to her. (C) Thirdly, there is no evidence to substantiate that PW-6 was admitted in Holly Family Hospital, Koderma, where she was attended by the doctors and on operation the body of a dead quick unborn child was taken out. (D) Fourthly, there is no objective evidence in absence of the examination of the I.O. to substantiate that blood stained clothing of PW-6, empty containers of the injection and other articles were seized. (E) Fifthly, there is no medical evidence of any doctor of Holly Family Hospital regarding admission, treatment for 25 days and operation as alleged by the PW-5 and PW-6. (F) Sixthly, there is no iota evidence in the testimonies of the PW-2 mother, PW-1 father of PW-5 to support the factum of occurrence as deposed by PW-5 and PW-6. (G) Seventhly, there is positive evidence of PW-8 that PW-5, the informant has falsely implicated the accused out of enmity. 21. (F) Sixthly, there is no iota evidence in the testimonies of the PW-2 mother, PW-1 father of PW-5 to support the factum of occurrence as deposed by PW-5 and PW-6. (G) Seventhly, there is positive evidence of PW-8 that PW-5, the informant has falsely implicated the accused out of enmity. 21. It is also found that the statement of the accused was also not recorded in a proper manner and no indiscriminating material has been put forth before the accused to explain the same in a manner as provided under Section 313 of Cr.P.C. in the light of the Rulings of Hon’ble Supreme court in Naval Kishore Singh vs. State of Bihar, (2004) 7 SCC 502 where under the circumstances of the case it has been observed by the Hon’ble Apex court in Para 5 as under: “5........Our attention was drawn to the statement taken from the present appellant. Only three questions were put to the appellant. The first question was whether he heard the statement of the witnesses and the second question was that the evidence given by the witnesses showed that he committed the murder of the deceased and whether he had to say anything in defence. The questioning of the accused under Section 313 Cr.P.C. was done in the most unsatisfactory manner. Under Section 313 Cr.P.C. the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence......” In the present case it is found that all the adverse evidences separately in the form of questions have not been put before the appellant during the course of his examination under section 313 of the Cr.P.C. and single opportunity has been given by putting all the incriminating evidences adduced on his behalf during the course of trial and thus the accused-appellant has been debarred from the valuable opportunity to defend himself as per the mandate of section 313 of the Cr.P.C. 22. Having taken into consideration the aforesaid findings, this Court finds that the impugned judgment of conviction and order of sentence dated 23.07.2005 passed by the learned Additional District & Session Judge, FTC, Koderma, in S.T. No. 321 of 2000, arising out of Koderma P.S. case No. 238 of 1997, corresponding to G.R. No. 506 of 1997 against the sole appellant does not hold good and hence the said impugned judgment of conviction and order of sentence dated 23.07.2005 is set-aside. 23. Accordingly, this appeal is allowed. 24. The appellant is acquitted from all the charges levelled against him. Since the appellant is on bail, he is discharged from the liability of bail bonds. 25. Let a copy of this Judgment along with Lower Court Record be sent back forthwith to the concerned court below.