Allowed

Kanto Gorain v. State of Jharkhand

Jharkhand HC13 Sept 2018Cr.A(SJ)/148/2007

Case brief

AI extract

What is this about?

The High Court allowed appeals against conviction under Sections 313 and 314 IPC. The court found insufficient evidence to prove the deceased died from a miscarriage induced by the appellants, noting medical witnesses were equivocal about the cause of death and the body was disposed of before a post-mortem.

What did the court decide?

Judgment of conviction and order of sentence set aside; appellants acquitted and discharged from bail bonds.

Kanto Gorain Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2018)

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Cr. Appeal (SJ) No. 23 of 2007 With

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Cr. Appeal (SJ) No. 148 of 2007

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Against the judgment of conviction dated 17.11.2006 and order of sentence dated 18.11.2006 passed by learned 1^st Addl. Session Judge, Rajmahal, in Session Case No. 110 of 2003/ Session Trial No. 16 of 2003.

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………. 1. Karno Gorain ...Appellant (in Cr. Appeal No.23/2007) 2. Kanto Gorain ...Appellant(In Cr. Appeal No.148/2007) Versus The State of Jharkhand … … ... Respondents (in both cases).

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P R E S E N T

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HON'BLE MR. JUSTICE ANANDA SEN.

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For the Appellants: Mr. Din Dayal Saha, Advocate. For the State: Mr. Pankaj Kumar, Addl. P.P.

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Ananda Sen, J: These appeals arise out of a common judgment therefore, the same are being heard together and disposed of by this common judgment.

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The appellants of both appeals have challenged the judgment of conviction dated 17.11.2006 and order of sentence dated 18.11.2006 passed by learned 1^st Addl. Session Judge, Rajmahal, in Session Case No. 110 of 2003/ Session Trial No. 16 of 2003, by which, they, having been found guilty of offence under Sections 313/34 and 314/34 of the Indian Penal Code, have been convicted and sentenced to undergo R.I. for six years under Section 313/34 and 314/34 IPC each with a fine of Rs.2,000/- each for both the offences and in default of payment of fine, they have also been sentenced to R.I. for three months. It has further been directed that both sentences shall run concurrently.

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The prosecution case is based on the fardbeyan of Niwasi Devi (P.W.10), where she stated that her younger daughter was staying with her. She alleged that appellant-Karno Gorain, who happens to be her cousin sonin-law, came to her house and thereafter had taken her daughter who then started residing in his house. She further states that thereafter she received information on 19.9.2002 that her daughter was murdered and dead body was thrown in the Ganges. After receiving the said information, she went there but could not find her daughter. On the basis of the aforesaid fardbeyan a case being Ranga P.S. Case No. 40/2002 dated 26.9.02 was instituted against the appellants for committing offence under Sections 302, 201 and 34 of the Indinal Penal Code.

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After registering the FIR, the police investigated the case and filed chargesheet. Charge was framed against the appellants under Sections 313/34 and 314/34 IPC, to which, they pleaded not guilty and denied their involvement. Thereafter, the appellants were put on trial.

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Altogether 12 witnesses have been examined in this case on behalf of the prosecution, as P.W.1: Dr. Keshav Prasad, P.W.2: Dr. Saryug Prasad, P.W.3: Usha Devi, P.W.4: Marwari Turi, P.W.5: Subash Gorain, P.W.6: Jogesh Gorain, P.W.7: Shiwanand Bhagat, P.W.8: Ajit Gorain, P.W.9: Drabal Turi, P.W.10: Niwasi Devi (the informant), P.W.11: Muniram Turi, and P.W.12: Gujru Sah.

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After closure of the evidence of the prosecution, the statements of the appellants were recorded under Section 313 Cr.P.C. They denied all the question and circumstances put to them. The defence has produced five witnesses in their support. D.W.1: Sudhir Chandra Saha, D.W.2: Lakhi Saha, D.W.3: Radhey Shyam Pandit, D.W.4: Bidshi Sah and D.W.5: Jhagru Sah.

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The Trial Court, after considering the evidence of the parties, concluded that the appellants were guilty for the offence under sections 313/34 and 314/34 of the Indian Penal Code and thereafter passed the impugned judgment of conviction and the order of sentence.

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Against the aforesaid judgment of conviction and order of sentence, this appeal has been filed.

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I have heard learned counsel for the parties and gone though the entire record of this case and found that there is no procedural latches in this case. 12 witnesses were examined in this case on behalf of the prosecution.

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The conviction of the appellants is under Sections 313/314 IPC. To bring home the charge under Sections 313 and 314 IPC, the prosecution has to prove (i) there was a miscarriage (ii) the miscarriage is not in a good faith, (iii) the said miscarriage has voluntarily done by the accused for the purpose of saving the life of a woman, (iv) without consent of the woman and (v) any act, which causes death of women while causing miscarriage.

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Keeping in mind, the aforesaid provisions of the law, this case has to be decided.

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Two doctors i.e. P.W.1 and P.W. 2 have been examined in this case as they had treated the deceased. They stated that the deceased was suffering from tetanus. They never stated the cause of excess bleeding and they stated that it can be due to miscarriage by administering some herbal medicine or by termination of pregnancy. P.W.2 in his cross-examination also stated that he does not know whether any herbal medicine was administered to the deceased or not and the cause of death of the deceased is tetanus. Thus no one said convincingly that there was miscarriage. They deposed in “ifs” and “buts”.

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P.Ws. 3 in para 4 stated that she got information that health condition of the deceased was deteriorating and her pregnancy was terminated

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by Karno Gorain and save and except this statement, there is no other material to suggest that the deceased died due to termination of pregnancy and her pregnancy was terminated after administering some herbal medicine. The other witnesses have stated that they had seen the appellants and others taking the deceased to the Doctor. On inquiry, they were told that the deceased was ill and they were going to the Doctor. Another witness i.e. P.W.- 7 who had seen the deceased in the clinic of the Doctor has stated that the Doctor had told that the deceased was suffering from Tetanus. This witness never stated about the miscarriage or about the cause of death of the deceased.

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It is pertinent to mention here that the prosecution case is that the dead body of the deceased was thrown in the Ganges and therefore no postmortem was conducted. Further no one came forward to depose that they saw the dead body is thrown in the Ganges. No charge has been framed against the appellants under Section 201 IPC. The only charge has been framed against the appellants under Sections 313/34 and 314/34 IPC.

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After going through the entire materials on record, I find that there is no sufficient evidence on record to suggest that the deceased under went miscarriage, resulting in her death. The prosecution has failed to prove the fact that the deceased died due to miscarriage and therefore, I am constraint to allow these appeals.

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In view of the aforesaid facts, I find that there is merit in these appeals. In the result, the appeal is allowed by setting aside judgment of conviction dated 17.11.2006 order of sentence dated 18.11.2006 passed by learned 1^st Addl. Session Judge, Rajmahal, in Session Case No. 110 of 2003/ Session Trial No. 16 of 2003 and the appellants, above named, are acquitted of the charges. Since the appellants are on bail, they are discharged from the liability of their bail bonds.

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(ANANDA SEN, J.)

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Jharkhand High Court, Ranchi. Dated 13.09.2018. Anu/NAFR

Kanto Gorain v. State of Jharkhand

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Kanto Gorain v. State of Jharkhand

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