Ramji Ram vs State of Rajasthan

Sunil Kumar Garg, J.—This appeal has been filed by the accused appellant against the judgment and order dated 4.6.1987 passed by the learned Session Judge, Merta in Sessions Case No. 41/83 by which he convicted the accused appellant for the offence under sections 316, 447 and 325 IPC in place of 307 IPC and sentenced him in the following manner:-

Name of accused appellant

Convicted under Section

Sentence awarded

Ramjiram

316 IPC

Four Year RI and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo six months RI.

325 IPC

Two Years RI and to pay a fine of Rs. 300/-, in default of payment of fine, to further undergo three months RI.

447 IPC

To pay a fine of Rs. 250/- in default of payment fine, to undergo one month imprisonment.

All the substantive sentences were ordered to run concurrently.

It may be stated here that by the same judgment and order, the learned sessions Judge acquitted the accused appellant and two accused persons, namely, Ruparam and Tejaram for the offence under sections 457,448 and 323 IPC and also acquitted the two accused persons Ruparam and Tejaram for the offence under sections 316/34, 307/34 and 325/34 IPC, but convicted these two accused persons for the offence u/s 447 IPC, but for that offence, they were sentenced with a fine of Rs. 250/-, in default of payment of fine, to undergo one month imprisonment.

It arises in the following circumstances:-

ON 31.3.1983 at about 10.00 AM, P. W.2 Harinath lodged a report Ex. P/l before the Police Station Padukalla District Nagaur stating inter-alia that on the intervening night of 30 and 31.3.1983 when he and his brother Devinath (PW5) were sleeping in his Latha, a place used for agricultural purposes or thrashing floor, then accused appellant alongwith two accused, namely, Tejaram and Ruparam came there to commit theft, but because of the noise of barking of the dog, he and his brother PW5 Devinath woke up and seeing them, the accused persons ran away, but they were recognized by PW2 Harinath when he put torch on their faces. It was further stated in the report Ex.P/l by PW2 Harinath that on the very early morning on 31.3.1983 the accused appellant and two other accused Tejaram and Ruparam came there and at that time, PW5 Devinath was alone in his Latha and they started abusing and beating him and on hearing hue and cry, wife of his nephew, namely, Sita (PW1) rushed towards that place from well and while she was intervening in the matter, the accused appellant gave legs and first blows on her stomach, as a result of which, bleeding started and there was miscarriage of her 5-6 months quick unborn child. It was further stated in the report Ex.P/1 by PW2 Harinath that neighbored PW3 Gafoor Khan, PW6 Dallaram and PW4 Ruparam also reached on the spot. Thereafter, PW1 Sita was brought to the hospital. In the above circumstances, the report Ex.P/1 was lodged by PW2 Harinath.

On this report, police registered the case and chalked out regular FIR Ex.P/2 and investigation was conducted by PW8 Gopi Krishan, who was at that time SHO Police Station Padukalla.

During investigation, PW8 Gopi Krishan prepared site description memo Ex.P/3 and site Plan Ex.P/4.

PW 1 Sita was got medically examined by PW7 Dr. Ram Pratap Soni and her medical examination report is Ex.P/5.

Through fard Ex.P/6, PW8 Gopi Krishan seized the blood stained Ghagra of PW 1 Sita and through fard Ex.P/8, PW8 Gopi Krishan seized unborn dead child of PW1 Sita.

The accused appellant was arrested on 3.4.1983 through arrest memo Ex.P/7.

After usual investigation, police submitted challan against the accused appellant and two accused Ruparam and Tejaram in the Court of Magistrate, from where the case was committed to the Court of Session.

On 30.9.1986, the learned Session Judges, Merta framed charges against the accused appellant and two other accused persons in the following manner:-

Name of accused

Charges

Ramjiram

457, 448, 323, 316, 307 IPC (accused appellant)

Ruparam

457, 448, 323, 316/34, 307/34 IPC

Tejaram

457, 448, 323, 316/34, 307/34 IPC.

The charges were read over and explained to the accused persons. They pleaded not guilty and claimed trial.

In support of its case, the prosecution examined as many as 8 witnesses and got exhibited several documents. Thereafter, statements of the accused persons u/s 313 Cr.P.C. were recorded. No evidence was led in defence by the accused persons.

After conclusion of trial, the learned Sessions Judge, Merta through impugned judgment and order dated 4.6.1987 convicted the accused appellant for the offence under sections 316, 325 and 447 IPC and sentenced him in the manner as indicated above holding inter alia:-

(i) That the prosecution has failed to prove the charge for the offence u/s 457 or alternatively 448 IPC against all the accused persons including present accused appellant, but charge for the offence u/s 447 IPC was found proved against all the accused persons.

(ii) That the prosecution has proved the fact that P W1 Sita was having a pregnancy of 5-6 months and the accused appellant gave leg and fist blows on her stomach, as a result of which, there was miscarriage and her quick unborn child died. Thus, the prosecution has proved the charge for the offence u/s 316 IPC against the accused appellant, but charge for the offence u/s 316/34 IPC was not found proved against the other accused persons, namely, Tejaram an Ruparam.

(iii) That the Prosecution has failed to prove the charge for the offence u/s 307 or 307/34 IPC against the accused persons, but the charge for the offence u/s 325 IPC was found proved against the accused appellant.

Aggrieved from the said judgment and order dated 4.6.1987 passed by the learned Sessions Judge, Merta, this appeal has been filed by the accused appellant.

In this appeal, the following submissions have been made by the learned counsel for the accused appellant:-

(i) That from the evidence on record, no case for the offence u/s 316 IPC can be said to have been proved against the accused appellant and therefore, the findings of the learned trial Judge convicting the accused appellant for the offence u/s 316 IPC are erroneous one and should be set aside because of the simple reason that mis-carriage of 5-6 months quick unborn child of PW1 Sita had taken place earlier and not at the time of alleged incident and nor otherwise the same is proved.

(ii) That there is discrepancy between the statements of the prosecution witnesses and PW7 Dr. Ram Pratap Soni and thus, from the evidence on record, the case of the prosecution, as found proved by the learned trial Judge against the accused appellant, cannot be said to have been established and he is entitled to acquittal.

On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Session Judge, Merta.

I have heard the learned counsel appearing for the accused appellant and the learned Public Prosecutor and gone through the record of this case.

Before proceeding further, first medical evidence of this case has to be seen, which is found in the statement of PW7 Dr. Ram Pratap Soni.

PW7 Dr. Ram Pratap Soni states in his statement recorded in Court that on 31.3.1983 he was Medical Officer in Government Hospital, Rinyhabadi and on that day, he medically examined PW1 Sita Devi and found the following injuries on her person:-

(i) Bruise having light bright red colour size 3"x2" horizontal on the left side of supura public region 3" below the level of umbilicus.

(ii) Bruise having red colour size 3- l/4"x3", 3" above the public region.

He has further stated that the above injuries were grievous one and the same were caused by blunt object and since miscarriage had already taken place, therefore, the period of injuries was assessed by him to be 20-24 hours and he further came to the conclusion that mis-carriage had taken place because of the above injuries and blood was coming out from her vagina and before about 16 hours of her examination, the miscarriage would have taken place. He has proved the report Ex.P/5.

In cross-examination, he admits the following facts:-

(i) That he had not handed over the un-born dead child of PW1 Sita to the Police, but the police had brought that child.

(ii) That it is also correct to say that when he examined PW1 Sita, child was not there.

(iii) That the period of injuries of PW1 Sita was assessed by him to be 20-24 hours and that of the miscarriage was 16-20 hours.

(iv) That it is correct to say that miscarriage had taken place after 5-6 hours of receiving the injuries by PW1 Sita.

Thus, from the evidence of PW7 Dr. Ram Pratap Soni, the fact that PW1 Sita received injuries as mentioned in the report Ex.P/5 is well established and furthermore, when he examined PW1 Sitam Miscarriage if 5-6 months quick unborn child had already taken place.

The question for consideration is whether the miscarriage of 5-6 months quick unborn child of PW1 Sita had taken place because of giving of leg and fist blows on her stomach by the accused appellant or not.

In this respect, the best evidence that could be of PW1 Sita herself. She has stated in her examination-in-chief that she was having a pregnancy of 5 months and when she intervened in the matter, the accused appellant gave leg blow on her stomach, as a result of which she became unconscious and her quick unborn child died.

In cross-examination she admits the following facts:-

(i) That it is correct to say that there was no dispute between her and the accused appellant earlier to that incident.

(ii) That she had not delivered any child before the alleged incident and after the miscarriage of her 5-6 months unborn child in the alleged occurrence, she did not deliver any child.

Thus, from the statement of PW1 Sita, the facts that she was having pregnancy of 5-6 months and because of giving of leg blow on the stomach of PW1 Sita by the accused appellant, there was miscarriage resulting in death of her 5-6 months quick unborn child, stand well proved.

PW2 Harinath is another witness, who lodged the report Ex.P/1. He has stated that he found PW 1 Sita in unconscious condition and he was told by PW3 Gafoor Khan and PW6 Dallaram that the accused appellant gave beating to PW1 Sita. Thus, he was not eye witness of the alleged occurrence.

So far as PW3 Gafoor Khan is concerned, he states in his examination-in-chief that the accused appellant caused leg blow on the stomach of PW1 Sita, but in cross-examination, he states that when he reached on the spot, he found PW1 Sita in unconscious condition.

PW6 Dallaram also states that when he reached on the spot, he found PW1 Sita in unconscious condition.

Thus, since the statement of PW1 Sita gets corroboration from the medical evidence, therefore, I see no reason to disbelieve her statement on the point that the accused appellant gave leg blow on her stomach, as a result of which there was miscarriage resulting in death of her 5-6 months quick unborn child. Therefore, the findings of the learned trial judge in this respect are liable to be confirmed one.

The next question for consideration is whether by causing leg blow on the stomach of PW 1 Sita, as a result of which there was miscarriage resulting'' in death of her 5-6 months quick unborn child, the accused appellant has committed the offence u/s 316 IPC or not.

To prove the charge for the offence u/s 316 IPC, the prosecution must establish the following ingredients:-

(i) that the woman was quick with child;

(ii) that the accused did an act to cause the death of such child;

(iii) that the circumstances, under which such act was done, were such as to make the accused guilty of culpable homicide, if death had been caused.

(iv) that such act did cause the death of the quick unborn child.

Before proceeding further, it may be stated here that there is no dispute on the point that the accused appellant was beating PW5 Devinath and on intervention by PW1 Sita, the accused appellant gave leg blow on the her stomach and this fact is very much clear from the statement of PW5 Devinath, who states that when he was beaten by the accused appellant and when he cried, PW1 Sita came there and she was given leg blow on her stomach by the accused appellant and she was pregnant at that time.

Thus, so far as the ingredients No. 1 and 2 for the offence under 316 IPC are concerned, they are well proved from the statements of PW1 Sita and other prosecution witnesses and from the statement of PW7 Dr. Ram Pratap Soni on the point that PVV1 Sita was quick with child and the accused appellant did an act as a result of which there was miscarriage resulting in death of her 5-6 months quick unborn child.

The next question for consideration is whether the prosecution has been able to prove the ingredients Nos.3 and 4 of Section 316 IPC or not.

Before recording the findings on ingredients No. 3 and 4 for proving the offence u/s 316 IPC, which consists of action against the mother which must be capable of causing ''culpable homicide'', I have to examine the definitions of ''culpable homicide and determine whether'' the act'' in this case could result in a culpable homicide of the mother. Culpable homicide has been defined by section 299 IPC. It involves doing of act either with the intention of causing death or with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that the act is likely to cause death. Unless the act is done against the mother with an intention or with a knowledge which brings it within the purview of Section IPC, it cannot constitute an offence u/s 316 IPC merely because the death of a quick unborn child has resulted from an act against the mother.

In the present case, when the accused appellant was beating PW5 Devinath, PW1 Site suddenly came there and on her intervention, the accused appellant gave leg blow on her stomach and therefore, no doubt the accused appellant pushed PW1 Sita with his leg, but in doing so, he had no intention to cause miscarriage of her quick unborn child or in other words, the accused appellant pushed PWI Sita as she intervened, but with no intention to cause miscarriage of her quick unborn child and thus, the act of the accused appellant, under the above circumstance, would not make him guilty of culpable homicide.

Therefore, since the aspect that the accused appellant gave leg blow on the stomach of PWI Site with an intention to cause death of her quick unborn child is missing and on the contrary, when she suddenly intervened in the matter, the accused appellant gave leg blow on her stomach, as a result of which there was miscarriage resulting in death of her quick unborn child, therefore, in these circumstances, the fact that there was intention of knowledge on the part of the accused appellant to cause miscarriage and death of quick unborn child of PWI Sita is missing and in absence of that, ingredients No. 3 and 4 for the offence u/s 316 IPC cannot be said to have been proved by the prosecution.

When this being the position, I cannot concur with the view taken by the learned trial judge that the action of the accused appellant came within the purview of Section 316 IPC. Therefore, the findings of the learned trial Judge convicting the accused appellant for the offence u/s 316 IPC are liable to be set aside.

The next question for consideration is whether in the facts and circumstances just mentioned above, a case for the offence u/s 304-A IPC can be said to have been made out against the accused appellant or not.

For convenience, Section 304-A IPC is quoted here:-

304-A. Causing death by negligence.-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.

In my considered opinion, when intention or knowledge on the part of the accused appellant that his act of causing leg blow on the stomach of PW1 Sita would result in causing miscarriage and death of her quick unborn child was missing, therefore, in these circumstances, the act of the accused appellant pushing defenseless pregnant woman would certainly amount to rash and negligent act although it did not amount to culpable homicide and when this being the position, it can easily be concluded that he has committed the offence u/s 304A IPC in place of 316 IPC.

In this respect, a decision of the Allahabad High Court in Jabbar and Others Vs. State, may be referred to where the Allahabad High Court observed that Section 316 IPC refers to act done against mother with intention or knowledge which brings it within purview of Section 299 and act does not constitute offence u/s 316 IPC merely because it was directed against mother and death of quick unborn child has resulted and it was held on facts that the action of the accused of that case did not come within the purview of section 316 IPC but offence committed by him was one u/s 304A IPC. I am fully in agreement with the view taken by the Allahabad High Court.

Thus, it is held that by giving leg blow on the stomach of PW1 Sita which causes miscarriage resulting in death of her quick unborn child, the accused appellant has committed the offence u/s 304A IPC and therefore, he is convicted u/s 304A IPC in place of 316 IPC.

On point of sentence

The next question for consideration is what sentence should be awarded to the accused appellant for the offence u/s 304A IPC.

It may be stated here that the sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The discretion has to be properly exercised along accepted judicial line.

In the present case, no doubt the accused appellant has remained in PC & JC for the period from 3.4.1983 to 4.6.1983 and from 4.6.1987 to 6.7.1987 (for about more than three months), but since PW1 Sita, after receiving legal blow on her stomach from the accused appellant resulting in miscarriage and death of her quick unborn child, did not conceive pregnancy later on, therefore, it would not be just and proper to award the sentence to the accused appellant for the period already undergone by him. Furthermore, accused should not be sentenced to the period already undergone on the ground that incident took place so many years back, but that ground may be available to accused for the purpose of imposing some lesser punishment.

Thus, looking to the entire facts and circumstances of the case, ends of justice would be met if for the offence u/s 304A IPC, the accused appellant is sentenced to one year RI and to pay fine of Rs. 500/-, in default of payment of fine to further undergo six months RI.

So far as the convictions passed by the learned Sessions Judge against the accused appellant for the offence u/s 325 and 447 IPC are concerned, the same are maintained. However, looking to the entire facts and circumstances of the case, it would be just and proper to reduce the sentence of the accused appellant for the offence u/s 325 IPC from two years RJ to one year RI.

For the reasons stated above, the appeal filed by the accused appellant Ramjiram is disposed of in the following manner: -

(i) That the conviction and sentence of the accused appellant for the offence u/s 316 IPC passed by the learned Sessions Judge, Merta through impugned Judgment and order dated 4.6.1987 are set aside and in place of 316 IPC, the accused appellant is convicted for the offence u/s 304A IPC.

For the offence u/s 304A IPC, the accused appellant is sentenced to undergo one year RI and to pay fine of Rs. 500/-, in default of payment of fine to further undergo six months RI.

(ii) That the convictions of the accused appellant for the offence under sections 325 and 447 IPC passed by the learned Sessions Judge, Merta through impugned Judgment dated 4.6.1987 are maintained.

However, the sentence of the accused appellant for the offence u/s 325 IPC awarded by the learned Sessions Judge, Merta through impugned order of sentence dated 4.6.1987 is reduced from two years RI to one year RI.

The sentence of the accused appellant for the offence u/s 447 IPC awarded by the learned Sessions Judge, Merta through order of sentence dated 4.6.1987 is maintained.

(iii) That all the sentences for the offence under sections 304A, 325 and 447 IPC shall run concurrently.

(iv) That since the accused appellant is on bail, he shall surrender before the learned trial court for serving out the remaining period of sentence.

(v) That the impugned judgment and order dated 4.6.1987 passed by the learned Session Judge, Merta stand modified accordingly to the extent indicated above.