Ayodhya Prasad Vishwakarma vs The State of Jharkhand

Pradeep Kumar, J.—Heard learned Counsel for the appellant and learned Counsel for the State.

This appeal is directed against the judgment of conviction dated 24.09.2001 and order of sentence dated 25.09.2001 passed by Shri S.A. Qadr, learned 6th Additional Sessions Judge, Dhanbad in Sessions Trial Case No. 630 of 1994, by which judgment, he found the sole appellant, Ayodhya Prasad Vishwakarma guilty for the offence u/s 314 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2000/- and in default to undergo simple imprisonment for six months and he has also been found guilty u/s 304A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years. Further, the court directed that the sentences will run concurrently.

It is submitted by learned Counsel for the appellant that there is no evidence that the appellant treated the victim girl Taro Kumari or that the appellant caused miscarriage and conducted surgery on the person of the victim girl, due to which, she died by excessive bleeding, and as such, his conviction u/s 304A or u/s 314 of the Indian Penal Code, is bad in law and fit to be set aside.

On the other hand, learned Counsel for the State has opposed the prayer and submitted that the prosecution has proved the fact that the victim girl was operated in the illegal hospital being run by the appellant and her dead body was recovered from the room of the appellant, where in absence of any light or any oxygen or anesthesia she was operated and she died, and as such, he has rightly been convicted.

After hearing both the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of fardbeyan given by the father of the appellant before the A.S.I., Parasuram Prasad, Kenduadih on 22.03.1994 stating therein that he is working as a ''mistri'' and on 22.03.1994 in the morning at about 4 A.M., lie is giving his statement in the medical house of the accused, Ayodhya Prasad Vishwakarma that on 19.03.1994 his daughter Taro Kumari, aged about 13 years, suddenly complained of severe pain in her stomach, then, he brought his daughter to the medical house of the accused Ayodhya Prasad Vishwakarma at Kathgola. The doctor babu, who was present in the hospital, gave medicine to his daughter and told him that his daughter is pregnant, that is why, she is having pain. Since, his daughter was not married, the doctor started treatment for her abortion. She was kept in the hospital from 19.03.1994 and kept there for treatment and yesterday on 21.03.1994 at about 3.00-3.15 P.M., operation was done upon her and due to excessive bleeding and due to the mistake of the doctor, she died.

On the basis of said fardbeyan, police registered a case for the offence u/s 304A/314 of the Indian Penal Code and after investigation submitted charge sheet against the accused.

Since, the case was exclusively triable by the court of Sessions, learned C.J.M. After taking cognizance, committed the case to the court of Sessions and lastly the case was tried by 6st Additional Sessions Judge, Dhanbad, who found the appellant guilty and convicted him as aforesaid.

It is important to note that during trial, the informant Jamuna Dusadh died, which was noted by the trial court in the order sheet and also on the charge sheet. All the other witnesses named in the charge sheet has been examined.

It appears that in course of trial, the prosecution has examined nine witnesses.

P.W.1 is Ram Charitra Bhuiyan, who is the independent witness.

P.W.2 is Ram Bilash Paswan, who is tender witness.

P.W.3 is Degni Devi, who is the mother of the deceased.

P.W.4 is Dr. Binod Kumar, who has examined the deceased.

P.W.5 is Parsuram Prasad, who is the I.O. of the case.

P.W.6 is Bairnath Prasad.

P.W.7 is Ram Swaroop Dusadh.

P.W.8 is Suresh Bhuiyan, who is the hearsay witness.

P.W.9 is Ram Kerwar Ram, who has declared hostile.

P.W.1, Ram Charitra Bhuiyan in his examination stated that he heard on the date of occurrence that the daughter of Jamuna Dusadh died, but he does not know how has she died He was declared hostile.

P.W.2, Ram Bilash Paswan was tendered in cross examination and he told nothing.

P.W.3, Degni Devi stated that his daughter (sic) Kumari died, but she cannot say as to how she died. She was cross examined and stated that she had not stated to the police on 19.03.1994 that her daughter had complained of severe pain in her stomach and she was taken to doctor, Ayodhya Prasad Vishwakarma for treatment and he started the treatment. She stated that she had got pregnancy of 6-7 months and she was unmarried, hence, the doctor was doing operation of the girl on 21.03.1994 at 2 P.M. The doctor came to her house and told that she has been operated, but she is unconscious and bleeding was going on and she died. She denied that she made this statement to police.

P.W.4, Dr. Binod Kumar, who conducted the postmortem examination of the deceased has stated in court that on 22.02.1994, he conducted postmortem examination of the dead body of victim girl aged about 13-14 years. The body was identified by constable No. 475. Parasnath Singh. He found the following ante mortem injuries on the person of the deceased:

(i) 1/2" x 1/4" x 1/4" Tear seen at the 6 O''clock position of Perineum.

(ii) Laceration 1 1/2" x 1/2" x 1/3" seen in the Posterior wall of vagina.

(iii) Injection pricked marks seen at both diltoid regions and anterior aspect of left elbow.

On dissection, he found both sides chamber of the heart were empty. The entire internal organs were pale. They were preserved and sent through constable. In the opinion of doctor, the death was caused due to haemorrhage from vagina due to operation. She proved the medical report as Ext.1. At para 10, he stated that he, cannot say which type of instrument had been used for conducting abortion. At para 11, he stated that it is possible that abortion can be caused by a violent sexual assault or pushing hard stick or candle of big size. At para 16, he stated that blood clots indicate fresh abortion irrespective of the fact that the patient is alive or dead.

P.W.5, Parsuram Prasad stated in court that he received a telephonic message that a person has died at Dendua Kathgola. He record a sanha in thana on 22.03.1994 at 3.30 P.M. In cross examination, he stated that after sanha, he along with other police officers left for Kathgola and started making enquiry about the medical shop of Ayodhya Prasad Vishwakarma and after reaching his hospital, he recorded the statement of the father of the deceased, Yamuna Prasad on 22.03.1994, then at 4 P.M., the statement was read over to Yamun Dusadh and finding it correct, he signed the same. He identified the signature of the informant Jamuna Dusadh. Thereafter, he sent the fardbeyan to the police station for registry. The case in the investigation was given to him. Then, he started investigation. He inspected the place of occurrence and found that the hospital is running in a ''Khhaprail makaan'' of three rooms. The accused was running his medical hospital in the front room, where there was a table and chair and on the west of that room, which was closed with a curtain for seeing a patient, a table was also put there. From that main room, there was a room on the north side, which is said to be a bed room of the accused, which also has got opening in the Angan from the main dawakhana room. He stated that there was a room without a door or window and closed by a big curtain and nobody can see from outside that what is in the inside. In the bed room of the accused, he found the dead body of Taro Kumari lying with a ''gawn'' in a naked condition and profuse blood was there just below the bed and the blood was spreading up to the Angan. On the south of Angan, there was a bath room, where he found the sign of cleaning the blood and there was blood clots and pieces of flesh also lying in the bath room. The deceased Taro Kumar was operated on this ''palang'' itself. In the hospital, there was no instrument for cutting organs or other things for doing operation. However, on the table, he found an unburnt candle and ''Aala'' and there was no proper light also.

After examining the place of occurrence, he again recorded the statement of the informant, who stated that the accused Ayodhya Prasad Vishwakarma finding that his daughter is about six months pregnant, gave some medicine and thereafter, he caused the abortion and when the bleeding did not stopped she died. He also stated that he is running this hospital illegally without any authorization and there is no proper arrangement for treatment in the hospital. He also recorded the statement of Degni Devi, who supported the statement made by her husband. Thereafter, he recorded the statements of other witnesses namely Ramswaroop Dusadh, Rambilas Paswan, Ramcharitar Bhuiyan, Ram Kerwa Ram, Baijnath Prasad and Suresh Bhuiyan. Thereafter, he stated that in the hospital of Dr. Ayodhya Prasad Vishwakarma, there was no other staff except him and he was the only illegal doctor there and he was running the hospital illegally. Thereafter, he sent the dead body for postmortem examination and also recored the statement of the doctor after arresting him. He stated that he had got no license of doctor and no certificate to run a hospital or conduct any surgery. He then sent him to jail and remanded in the case. The I.O., thereafter, getting the postmortem report and supervision from higher authority, submitted charge sheet in the case. He also proved the formal F.I.R. as Ext.4. He also proved the signature of the officer in charge in the, formal F.I.R. authorizing him to conduct the investigation.

In his cross examination, he stated that he has recorded a sanha at a telephonic message. He also stated that he was not knowing the place of hospital of the accused Ayodhya Prasad Vishwakarma and in the market on enquiry he came to know about the same from one Rjimji Yadav and as per description given by him, he reached the place of occurrence.

P.W.6, Bairnath Prasad stated that he came to know about the occurrence from Jamuna Dusadh, who told him that his daughter was pregnant and she was taken to hospital of Dr. Vishwakarma for termination of pregnancy and during operation due to excessive bleeding she died.

P.W.7, Ramswaroop Dusadh has also stated that he came to know about the occurrence from Yamuna Dusadh, who told that his daughter was taken to a doctor in Kathgola and during treatment she died.

P.W.8, Suresh Bhuiyan has also stated that he came to know about the occurrence from the father of Taro, who stated hat his daughter died during treatment.

P.W.9, Ram Kerwar Ram has stated that he does not know anything about the occurrence.

Thus, from the evidences discussed above, it appears that since the informant died during trial and he could not be examined and his statement recorded by the I.O. has been proved and marked as Ext.2 and is treated as evidence u/s 32 of the Evidence Act. The statement of the informant has fully been corroborated by the evidences of the doctor, P.W.4 as also by the evidences of I.O., P.W.5 and also other witnesses P.Ws. 6, 7 and 8 have supported that they were told by the informant that his daughter was treated by this accused for termination of pregnancy and during operation due lo excessive bleeding she died.

Thus, the evidences have proved beyond reasonable doubt that the victim girl died while treatment by the accused in his illegal hospital. The investigation and statement made by the I.O. shows that the accused doctor was a ''quack'' having no license or certificate for running the hospital for treating any patient. Moreso, it appears from the evidence of doctor, P.W.4, Dr. Binod Kumar that he found the ante mortem injuries i.e. 1/2" x 1/4" x 1/4" Tear seen at the 6 O''clock position of Perineum and Laceration 1 1/2" x 1/2" x 1/3" seen in the Posterior wall of vagina. Admittedly, since there was no instrument for conducting operation, or making unconscious by giving anesthesia or anything, the operation was conducted in violent manner without any oxygen and other instruments and naturally the bleeding could not be stopped and the victim died due to excessive bleeding and due to negligence and criminal act of this accused.

In that view of the matter, in my opinion, the finding and conviction of trial court requites no interference by this Court. The act of this appellant is criminal in nature rather he has committed murder of innocent 13 year''s old young girl, but since he has been charged in the aforesaid Sections, his conviction cannot be changed.

I find no merit in this appeal, the same is accordingly dismissed.