Debola Biswas vs State

The present appeal is direced against the judgment of convition and order of Pushpa Baroi resulting in abortion of a foetus with perforation of uterus which ultimately caused the death of one said said Pushpa Baroi. The offence of inserting the jungle roots into the uterus was, according to the charge, committed with the intention to cause miscarriage of the said woman Pushpa Baroi, and the said offence was committed on or about July 23, 1988, at or about Ram Krishna Gram, P.S. Diglipur. The Appellant pleaded not guilty to the charge and claimed to be tried. After the trial the Appellant was found guilty of the said charge and has been convicted of the same and sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 2,000, in default to further rigorous imprisonment for six months. Being aggrieved by the said judgment and order the Appellant has preferred this appeal.

We have heard the submissions of the learned Advocate Mr. Roy appearing for the Appellant and also Mr. Saroop appearing for the State.

The prosecution case, in short, is that the deceased Pushpa Baroi had conceived and her husband had advised her to go to the hospital for abortion. But she did not go to the hospital for any such abortion. She was having pain in her abdomen for about 4 or 5 days before July 28, 1988. On July 28, 1988, her condition had deteriorated and she was removed to the Diglipur hospital at about 3 p.m. on that day for treatment. She had been attended to by P.W. 1 Dr. R. Tulsidasan at the hospital at about 4 p.m. Later at about 8 p.m. that day her condition had become serious and on inquiry by the doctor she explained how she became ill. She gave a statement to the doctor and her statement was recorded. In her statement which was recorded by the doctor (Ex. 2) she had stated that she had been carrying and the abortion had been caused about 4 or 5 days before. The substance of her statement was that Deboia Biswas, wife of Sanyasi and mother of Shyamapada Biswas, who was a resident of Subhasgram, had inserted some wild roots into her uterus about a few days back. This statement (Ex. 2) was recorded by the doctor (PW-1) in the presence of some members of the hospital staff at about 8 p.m. on July 28, 1988. Earlier at about 4 p.m. when Pushpa Baroi was examined by the said doctor on her admission into the hospital, she also made a statement in short making similar allegations in respect of Debola Biswas. This oral statement of Pushpa Baroi had not been recorded by the doctor at that time, but he informed by his letter (Ex. 1) to the Station House Officer of Diglipur P.S. about what he had learnt from the patient Pushpa Baroi.

The next part of the prosecution case is that on the basis of the first communication (Ex. 1) made by the doctor, the Police officer (PW-5) had registered a case (Crime No. 117 of 1988 dated July 28, 1988) against ''Shyamapader Maa'' (Shyamapada''s mother), because no further particulars about the identity of Shyamapada''s mother had been disclosed in the doctor''s letter (Ex. 1). However, the patient Pushpa Baroi died at about 1.30 p.m. of July 29, 1988, at the hospital. The Police was informed. In the usual course a postmortem examination on the deadbody of Pushpa Baroi was held by the same doctor Tulsidasan on July 29, 1988, at 3 p.m. On the postmortem examination the uterus of Pushpa Baroi was found damaged and perforated over two places just above the internal of over the posterior surface. Os of the uterus was found open and a portion of the placenta was found protruding out. There were also other injuries found in the uterus. According to the doctor, death resulted from haemorrhage and septicaemic shock resulting from criminally induced abortion. It is further opined that there was very little chance for Pushpa Baroi to survive with the physical condition with which she had been admitted into the hospital. The further opinion of the doctor was that the kind of symptoms found in the body of Pushpa Baroi could be found if a foreign body is inserted into the uterus.

The investigation of the case was taken up by P.W. 14 (Sanaulla), S.I. of Police who was attached to Diglipur P.S., on July 28, 1988. He had examined witnesses and searched for Debola Biswas, but could not find her out at his first attempts. However, on September 22, 1988, Debola Biswas could be traced out and she was placed under arrest. The case against her was first registered u/s 312 of the Indian Penal Code, but later, in view of the death of Pushpa Baroi, the case was converted into one u/s 314 of the Indian Penal Code. This Police Officer (PW-14) handed over the case to S.I. Vedam (PW-13) who after completion of investigation submitted the charge-sheet in the case.

To substantiate the charge against the Appellant, prosecution called as many as 14 witnesses including Dr. Tulsidasan and the I.O. Some of these 14 witnesses, viz. P.W. 7 (Rasomay Dakuwa) and P.W. 11 (Shyam Sunder Gain) was only tendered by the prosecution and they did not depose to about anything material. No defence witness was examined in this case.

The fact that Pushpa Baroi had been taken to the Diglipur hospital is proved by the evidence of her husband Deben Baroi (PW-2), her son-in-law Shyamal Das (PW-3), Dulal Majumdar (PW-4) and also Sm. Kadam Haldar (PW-10), wife of Jogen Haldar. From their evidence it is amply clear that Pushpa Baroi was complaining of physical inconveniences and was lying ill in her house. At the instance of her husband (PW-2) she had been removed to the hospital with the help of the aforesaid witnesses. We next find from the evidence on record that she had been admitted in the hospital at or about 3 p.m. on July 28, 1988, and that at about 4 p.m. that day she was first examined by P.W. 1 (Dr. Tulsidasan), a Medical Officer of that hospital. The evidence of this Dr. Tulsidasan (PW-1) further indicates that at the first instance Pushpa Baroi gave out the information that mother of Shyamapada had inserted some roots into her uterus 4 or 5 days back as a result of which she aborted a foetus two days back with perforation of uterus. The doctor at-once conveyed this information in his letter (Ex. 1) to the Station House Officer of Diglipur Police Station. We further find that the condition of Pushpa Baroi had deteriorated. So the same doctor was again called to the hospital and he came and attended Pushpa sometime between 7.30 p.m. and 8 p.m. It was at that time that he recorded the statement of Pushpa Baroi which was admitted as Ex. 2. We shall come later to this statememt. This doctor (PW-1) further says that Pushpa Baroi died at about 1.30 a.m. on July 29, 1988. Her death is also proved by the evidence of her husband (PW-2) who had been by the side of Pushpa at the time of her death.

There is evidence that Police constable K.A. Vidyadharan (PW-6) and two others (P.C. 66 S. Das and P.C. 1282 Vijayan Nair) guarded the dead-body that night and at 3 p.m. of the same day (July 29, 1988) the post-mortem examination was held by P.W. 1 (Dr. Tulsidasan). The dead-body had been identified to the doctor by P.W. 2, (Deben Baroi), the husband of the deceased. It is, therefore, clear beyond all reasonable doubts that Pushpa Baroi had been admitted into the hospital at about 3 p.m. on July 28, 1988 and had expired at about 1.30 a.m. on July 29, 1988.

The question that now comes before us is - was it an unnatural death ? The findings of Dr. Tulsidasan (PW-1) on postmortem examination of the dead-body of Pushpa Baroi clearly indicate that it was an unnatural death, a death caused by damage done to her uterus by insertion of some foreign body into the same. We have indicated at the beginning what had been found by the Autopsy Surgeon (PW-1) upon postmortem examination of the dead-body of Pushpa. Some other injuries found by the Surgeon are multiple bruises over vaginal region including lebia majora and lebia minora. The same was inflammed and lacerated. There was mark of inflammation and erosion of vaginal mucus membrane. These injuries were found by the doctor to be antemortem in nature. The Surgeon further found the os of the uterus open and a portion of the placenta protruding out. In the pelvis the uterus and pelvic organs were found congested and peritonitis was found present.

The uterus itself was found perforated over two places as stated before. Severely infected placental parts and blood clots were found in the uterus cavity. Cergix and os were lacerated. We have already referred to the opinion of the Surgeon as to the cause of the death of Pushpa Baroi. To recall, the death in his opinion resulted from haemorrhage and septicaemic shock resulting from criminally induced abortion. We may recall his further opinion that the kind of symptoms found in the uterus of the deceased could be caused if a foreign body had been inserted into the uterus.

We have no reason to reject the findings and the opinion of the doctor (PW-1) referred to above. We accept the same.

It is, therefore, clearly established beyond all reasonable doubts that Pushpa Baroi died as a result of insertion of some foreign body into her vagina and that the foreign body had been inserted into the uterus of Pushpa Baroi for the purpose of causing abortion of a foetus in her womb.

The next important question is whether the materials on record prove beyond all doubts that it was the Appellant Debola Biswas who caused the abortion by inserting some foreign body into the uterus of Pushpa Baroi, which act caused damage to the uterus and ultimately the death of Pushpa Baroi as a result thereof. In this regard the prosecution case rests upon the dying declaration of Pushpa Baroi allegedly made by her to the doctor (PW-1 -Tulsidasan) and recorded by him. The alleged dying declaration recorded by the doctor is Ex. 2.

12A. Mr. Roy appearing for the Appellant does not dispute the proposition of law that a conviction solely upon a dying declaration is possible and permissible in law. But the learned Advocate submits that where the only material against an accused is an alleged dying declaration, the Court should very cautiously scrutinise such dying declaration from all reasonable angles in order to be satisfied whether the dying declaration relied upon by the prosecution has been proved to be Court''s satisfaction, and, if so, whether such dying declaration contains a true account of what actually had happened. So far as this contention of the learned Advocate is concerned, we agree with him.

We have perused the recorded dying declaration (Ex. 2) and also other evidence on record. We do not find any ground whatsoever to discard the dying declaration (Ex. 2) as a false or manufactured document.

The dying declaration (Ex. 2) is written in Bengali language but in Roman script. It was recorded by P.W. 1 (Dr. Tulsidasan). His evidence is that he can read and speak Bengali, but he cannot write in Bengali script. He had put certain questions to Pushpa Baroi and she gave answers to them. All the questions put to her and the answers given by her appear in the document (Ex. 2). It is clear from this document that Pushpa Baroi stated in substance that Debola Biswas had inserted some roots into her uterus for which she became ill. In her statement Pushpa Baroi clarified the identity of Debola Biswas by saying that she was the mother of Shyamapada Biswas and wife of Sanyasi Biswas and was a resident of Subashgram, Nalarpar. The Appellant Debola Biswas in her examination u/s 313 of the Code of Criminal Procedure admitted that she was the mother of Shyamapada Biswas and wife of Sanyasi Biswas and that she was a resident of Subashgram. It is, therefore, clear that in her alleged dying declaration (Ex. 2) Pushpa Baroi wanted to say, and actually said, that the Appellant before us was the person who inserted the roots into her uterus.

Mr. Roy, learned Advocate for the Appellant, has sought to assail the reliability of the dying declaration (Ex. 2) on several grounds. He has first pointed out that the document (Ex. 2) does not have any title or heading to indicate that the document was a statement or declaration of Pushpa Baroi. We do not think this contention has any force. The other materials on record clearly show that the document (Ex. 2) was recorded by the doctor as the statement of the deceased Pushpa Baroi. The next point of Mr. Roy is that the said document does not bear any date or time indicating when it was recorded. It is true that the document does not show on what date it was recorded. But this contention too does not seem to have any force. The doctor (PW-1) has explained that the condition of the patient was serious and so he could not put the date on the document (Ex. 2). We are of the opinion that non-mention of the date of recording of the dying declaration in Ex. 2, is riot at all fatal for the prosecution. The main question to be considered is whether Ex. 2 contains the declaration of Pushpa Baroi and whether it was recorded by P.W. 1 (Dr. Tulsidasan) before her death. This aspect of the prosecution case is amply established by the evidence of the doctor himself and also by the evidence of P.W. 12 (Shakila) who was the Staff Nurse of the hospital at the relevant time. The document (Ex. 2) shows that there were also other witnesses. However, the evidence of P.W. 1 and P.W. 12 (Shakila) brings conviction to us that the document (Ex. 2) is the declaration of Pushpa Baroi recorded by Dr. Tulsidasan (PW-1) in presence of other witnesses. Mr. Roy contended that there was nothing to show that any relation of Pushpa Baroi was present at the time of recording her statement, and that the only witnesses to such recording had been the members of the hospital staff. The suggestion of Mr. Roy seems to be that the document (Ex. 2) was prepared by the doctor unfaithfully and the witnesses, who were members of the subordinate staff of the doctor, subscribed their signatures on the mere request or demand of the "doctor. We are afraid that we cannot accept such a case. We do not find any earthly reason for Dr. Tulsidasan or for P.W. 12 (Shakila) to give false evidence against the Appellant Debola Biswas on such a serious charge. We do not find any material to satisfy us that Dr. Tulsidasan was inimical to the Appellant in any way.

Mr. Roy next pointed out and with force that although the alleged dying declaration (Ex. 2) was recorded, according to the doctor, on July 28, 1988, it was handed over to the Police as late as on September 26, 1988, through the clerk in-charge of the hospital. Mr. Roy wanted to contend that it was quite possible for the doctor or any other agency to make improvement upon any declaration which Pushpa Baroi might have made before her death. It is really unusual that the dying declaration (Ex. 2) was given to the -custody of the Police on September 26, 1988, although it is said to have been recorded on July 28, 1988. But in respect of this aspect of the matter, we have the evidence of Dr. Tulsidasan himself. From his evidence it appears that after having recorded the dying declaration he was in a fix as to what to do with it. He had not the knowledge that it was to be given to the Police Officer who was investigating the case. He has stated in his evidence that he kept the dying declaration with him as he did not know what to do with it. It was on September 21, 1988, that he arranged for making over the said dying declaration to the police under the cover of his letter dated September 21, 1988 (Ex. 5). As pointed out before, factually the envelop containing the lying declaration was made over to the Police through the clerk in-charge on September 26, 1988, when the Police officer came to the hospital. Besides the above explanation of the doctor as to why he kept the dying declaration (Ex. 2) with him, our attention has been drawn by the learned Public Prosecutor to the first information (Ex. 1) given by the same doctor to the Police upon which the case was registered. This document (Ex. 1) indicates in clear terms that the doctor informed the Station House Officer of Diglipur P.S. that Pushpa Baroi had given the statement that one lady said to be mother of one Shyam, resident of Subashgram had inserted some jungle roots into her uterus five days back and she had aborted a foetus two days back with perforation of uterus with all the complications of criminal abortion. It is, therefore, clear that the fact that Pushpa Baroi had made the allegations against the Appellant was brought to the notice of the Police by the doctor at the first instance by Ex. 1. This document (Ex. 1) sent to the Police on July 28, 1988 (after the admission of Pushpa Baroi in the hospital) gives us the assurance that the dying declaration (Ex. 2) is not a false document and was not manufactured by anybody with any evil design, although it had been delivered to the Police on September 21 or 26, 1988. Exhibit 1 gives us the account as to what had been the first complaint of the deceased to the doctor. That is substantially the same complaint as made out in the dying declaration (Ex. 2). The only difference is that in Ex. 2 we get the story in some details, but the gist of the allegations in Ex. 2 is substantially the same as that of the allegations in Ex. 1 (letter of Dr. Tulsidasan dated July 28, 1988).

Upon a consideration of the entire evidence on record and the submissions of the Learned Counsels for both parties, we are satisfied that the dying declaration (Ex. 2) was faithfully recorded by Dr. Tulsidasan. We are satisfied that Ex. 2 is the statement of Pushpa Baroi made shortly before her death. We may further point out in this regard that the evidence of the witnesses who took Pushpa Baroi to the hospital and that of the doctor show that Pushpa Baroi was conscious and was able to speak, even though she was in a serious condition. Exhibit 2 itself shows that she had not lost her reasons or intellect or consciousness while narrating how she became ill. We accept the document (Ex. 2) as being the statement of Pushpa Baroi faithfully recorded by Dr. Tulsidasan (PW-1).

The next question is whether what is stated in the said declaration (Ex. 2) can be accepted as true. We have already indicated the findings and trie opinion of the Medical Officer, Dr. Tulsidasan. He found damage and perforation of the uterus in several ways, and his specific opinion is that if some foreign body is inserted into the vagina, such type of injuries may be caused to the concerned woman. The findings and opinion of the doctor who held the postmortem examination are consistent with the story given out in the dying declaration (Ex. 2) by Pushpa Baroi. That itself makes the prosecution case convincing. Further, we have on record (evidence of P.W. 2) that the Appellant Debola Biswas was not unknown to the family of the deceased. It is the specific evidence of P.W. 2 that on July 28, 1988, he found the Appellant Debola Biswas coming out of his house around 10/10-30 a.m. and going towards her house. The Appellant was duly identified by the witness (PW-2). This evidence of P.W. 2 is sufficient to show that the Appellant Debola Biswas had some acquaintance with the deceased Pushpa Baroi. The dying declaration itself also shows that Pushpa Baroi described the Appellant Debola Biswas not only by her name, but also by stating that she was the wife of Sanyasi and mother of Shyamapada and was a resident of Subashgram. Pushpa could not have so much of information about the Appellant Debola, unless she had been acquainted with her (the Appellant).

Having regard to the aforesaid materials on record, we have no doubt that what was stated by Pushpa in her dying declaration was true. She gave a true account of the fact that the Appellant Debola Biswas had inserted some wild roots into her uterus for the purpose of causing miscarriage. And it can be safely presumed that the act was done with the consent of Pushpa Baroi.

Accordingly, we find that the order of conviction of the Appellant Debola Biswas under the first part of Section 314 of the Indian Penal Code on the basis of the dying declaration (Ex. 2) and other materials on record is correct. We find no reasonable ground to interfere with the judgment and order of conviction of the Appellant u/s 314 of the Indian Penal Code and accordingly we must maintain the order of conviction.

Now we come to the question of sentence. The Appellant, as has been stated before, has been sentenced to rigorous imprisonment for three years and to a fine of Rs. 2000 i.d. to further R.I. for. six months. Mr. Roy submitted that the benefit of Section 360, Code of Criminal Procedure, should be given to the Appellant in view of the facts and circumstances of the case. He has submitted that the Appellant is aged over 50 years now and has children, and that it was on the request of the deceased that she committed the act complained of, if she committed it at all.

On our inquiry the learned Public Prosecutor Mr. Saroop has pointed out that as per the charge-sheet the Appellant was aged 50 years on March 24, 1989, when the charge-sheet was submitted. We do not find any other material on record as to the age of the Appellant. In the circumstances, we can accept the age of the Appellant to be what is indicated in the charge-sheet. If she was 50 years in March 1989 she is now over 53 years. It may also be accepted on the basis of the materials placed before us that the deceased Pushpa Baroi had consent to the commission of the act of the Appellant complained of. It is not a case where some foreign body was inserted into her unterus forcibly or against her consent. This is not to say that the act of the Appellant was justified. This is only to show the circumstances in which the Appellant committed the offence. It was certainly not the intention of the Appellant to cause the death of Pushpa Baroi. She intended to cause her miscarriage, and that too on her (Pushpa''s) request. It is unfortunate that Pushpa Baroi died as a result of the act of the Appellant. But the death of Pushpa Baroi should not impel us to ignore the circumstances in which the offence was committed. The death of Pushpa Baroi was not intended to be caused by the Appellant, but as ill luck would have it, she died. The only intention of the Appellant was to cause her miscarriage, and with that intention she inserted the foreign body into her uterus causing in the process fatal damage to her uterus. We may also presume that she did that act with the consent and on the request of Pushpa Baroi herself. This can be presumed from the facts and the circumstances we get from the record.

The offence committed by the Appellant is not punishable with death or imprisonment for life and no previous convicti6n has been proved against her. Therefore, technically the provisions of Section 360 of the Code of Criminal Procedure may be applied to the Appellant who is a woman. The learned Public Prosecutor Mr. Saroop has submitted that it is not a fit case for releasing the Appellant u/s 360 of the Code of Criminal Procedure. He has submitted that the attempts to cause abortion by untrained hands and in a risky manner should be condemned.

Having regard to the facts and circumstances of the case and after hearing the Learned Counsels, we think it would not be just and proper to grant the Appellant the benefit of Section 360 of the Code. At the same time, we think that the sentence imposed upon the Appellant should be reduced in view of the fact that she is now aged about 53/54 years and committed the act with the consent of Pushpa Baroi and presumbly not with the knowledge that her act would be fatal for Pushpa Baroi. We also take into account the submissions of Mr. Roy that the Appellant has children and her family will be seriously affected by her imprisonment.''

The records of the Magistrate''s Court show that the Appellant had been arrested on September 22, 1988, and was in custody till November 7, 1988, as an undertrial prisoner. That means, she had been in custody for one month and a half. This period should be set off u/s 428 of the Code of Criminal Procedure against any jail term that may be imposed upon her. After taking into consideration all the material aspects of the case, including the age of the Appellant and the circumstances in which the offence was committed, we are of the opinion that the ends of justice will be met by maintaining the sentence of fine imposed upon the Appellant by the learned Sessions Judge and the reducing substantive sentence of imprisonment to the period already undergone by the Appellant as an under trial prisoner.

Accordingly, we maintain the judgment and order of conviction of the Appellant u/s 314 of the Indian Penal Code. We maintain the sentence of fine of Rs. 2000. in default R.I. for six months imposed upon the Appellant by the learned Sessions Judge. As far as the substantive sentence of imprisonment of three years imposed by the learned Sessions Judge on the Appellant is concerned, we reduce the same to the period already undergone by her as an undertrial prisoner. The appeal against conviction thus fails, but the appeal against the sentence succeeds in part as above. The Appellant shall now pay up the fine, if the same has not already been paid, or shall surrender to her bond to serve out the sentence in default of payment of fine.

Susanta Chatterji, J.

I agree.