The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No. 445 of 2017 ------ (Against the judgment and order of conviction and sentence dated 13.02.2017, (sentence pronounced on 17.02.2017) passed by Sri Kumar Dinesh, learned District & Additional Sessions Judge-III, Dhanbad in Sessions Trial No. 547 of 2009). ----- Nimai Rawani @ Nimai Chandra Rawani. Versus … Appellant The State of Jharkhand … Respondent ------ CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY
Legal Reasoning
: HON’BLE MR. JUSTICE DEEPAK ROSHAN ------ For the Appellant : Mr. Arwind Kumar, Advocate For the State : Mr. Pankaj Kumar, P.P. ------ R. Mukhopadhyay, J. Heard Mr. Arwind Kumar, learned counsel appearing for the appellant and Mr. Pankaj Kumar, learned P.P. for the State. This appeal is directed against the judement and order of conviction 2. and sentence dated 13.2.2017, (sentence pronounced on 17.2.2017) passed by Shri Kumar Dinesh, learned District & Additional Sessions Judge- III, Dhanbad in connection with S.T. No. 547/09 whereby and whereunder the appellant has been convicted for the offences punishable under section 302/313 IPC and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/-for the offence under section 302 IPC and rigorous imprisonment for ten years and a fine of Rs.10,000/-for the offence under section 313 IPC and in default in payment of fine to undergo simple imprisonment for a further period of six months. The case of the prosecution arises out of the Fardbeyan of Anita Devi 3. recorded on 14.6.2009 wherein it has been stated that about 2-2 and ½ months back, she fell ill and she had gone for a treatment to Saraswati Clinic belonging to the appellant-Nimai Rawani. She was pregnant and was suffering from stomach pain. The accused/appellant without her consent operated upon her and aborted the fetus. This resulted in deterioration in her 1 health condition and she was taken to Nikhil Nursing Home where she is being treated. Based on the aforesaid allegations, Katras (Tetulmari) P.S. Case No. 121/09 was instituted under section 313/307 IPC and Section 304 and 302 IPC was added after the death of the informant –Anita Devi. On conclusion of investigation, chargesheet was submitted under sections 313/302 IPC and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 547/09. Charge was framed against the accused for the offence under section 313/302 IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. The prosecution has examined as many as five witnesses in support 4. of its case. P.W-1-Sangita Devi is the sister of the deceased who has not supported the case of the prosecution and has been declared hostile by the prosecution. P.W-2-Naresh Prasad has stated that on 10.05.2009 he was posted at Tetulmari P.S. and on that day he had recorded the Fardbeyan of Anita Devi at Nikhil Nursing Home, Loyabad. He has proved the Fardbeyan which is in his handwriting and bears his signature and which has been marked as Ext-1. The Fardbeyan was forwarded to Katras P.S. and such forwarding has been proved and marked as Ext-2/1. On the basis of the Fardbeyan, Katras P.S. Case No. 126/09 was registered under section 307/313 IPC. He has proved the endorsement on the Fardbeyan by the officer in charge, Katras P.S., which has been marked as Ext-2/2. The formal FIR has been proved and marked as Ext-2/3.He had taken over the investigation of the case and had recorded the restatement of the informant and the statement of some of the other witnesses. He had inspected the place of occurrence, which is Saraswati Clinic. He had come to know that the informant has died and after verification the dead body was sent for conducting autopsy. The witness Sangeeta Devi had disclosed that the informant was treated by the appellant in his clinic and without the consent of the informant the appellant had conducted an abortion as a result of which the condition of the informant became serious. Later on it came to light that the appellant is not a qualified medical practitioner. The informant was later on taken to Nikhil Nursing 2 Home and thereafter she was brought to her house where she ultimately died. He has stated that after obtaining the postmortem report and as per the supervision report of the higher police officials he had submitted chargsheet under section 313/302 IPC. In cross-examination, he has deposed that on 10.05.2009, he had recorded the statement of Anita Devi, on the basis of which, the case was instituted. On 14.06.09, he had recorded the Fardbeyan of Sangeeta Devi. The Fardbeyan was recorded after the death of Anita Devi. However, no case was registered on the basis of the Fardbeyan of Sangeeta Devi. P.W-3-Durga Ram is the brother of the deceased Anita Devi. He has stated that when the health condition of his sister became serious she was taken to the Nursing Home of the appellant where an abortion was carried out without the consent of his sister. After 2-3 months, his sister suffered from stomach pain and she was taken to Nikhil Nursing Home where the doctor had disclosed that improper treatment was extended to his sister at the time of abortion. She died during treatment. Later on, it came to light that the appellant is a quack. He has proved the signature of Anita Devi in the Fardbeyan, which has been marked as Ext-2/4. In cross-examination, he has deposed that during treatment his sister died in Nikhil Nursing Home. He had not stated before the police that it was the appellant who had carried out the abortion on his sister. P.W-4-Dr. Sushil Kumar has stated that on 13.04.2009 at 12 A.M., police had got Anita Devi in his Nursing Home known as Nikhil Nursing Home. He was informed that Anita Devi was suffering from stomach pain and that after abortion her uterus was not cleared. After the operation, it came to light that her stomach was filled with faeces and intestine was perforated. He has stated that she had remained in the Nursing Home from 13.04.09 to 22.05.09 and three operations were carried out on her. She was thereafter referred to a higher medical centre. He had prepared the injury report, which has been proved by him and marked as Ext-4. In cross-examination, he has deposed that the deceased was discharged from his Nursing Home on 22.05.09. P.W-5-Dr. Swapan Kumar Sarak was posted as a tutor in F.M.T., PMCH, Dhanbad where on 14.06.2009 he had conducted autopsy on the dead body of Anita Devi and had found the following:- 3 1. 2. Old infected incised wound 1 ½” long in mid live x ¼” wide cavity deep full of Pusn and fowl selling. Old infected wound 2” x 1”x muscle deep of Pus over Rt. Iliac fossa. No other external wound found. On Dissection:- Skull found normal, Brain & meninges found pale, Both lungs found pale, Rt. Ventricle of bent full and left empty. Abdominal & peritoneal cavity full of fowl swelling pus. Stitched old infected gangrenous wound found near appendix ½” 1 distal to it. Uterus found having old perforation over posterior part of body. A part of small intestine found gangrenous and few stitches found over perforation of the uterus. Bladder found empty and all internal organs found pale. Time elapsed since death:- 4 to 8 hours. The cause of death was opined to be due to Septicemic shock as a result of perforation of uterus and intestine and their complications caused by surgical interference. He has proved the postmortem report, which has been marked as Ext-5. In cross-examination, he has deposed that he does know the exact time of perforation. The statement of the accused was recorded under section 313 Cr.P.C. 5. in which he has denied the allegations leveled against him. It has been submitted by Mr. Arwind Kumar, learned counsel 6. appearing for the appellant, that the prosecution has miserably failed to prove its case against the appellant. It has been submitted that the deceased was taken to the Nursing Home of P.W-4 and thereafter she was taken to her house where she died and therefore the appellant cannot be held responsible for her death. Mr. Arvind Kumar, learned counsel for the appellant, has in the alternative argued that no case under section 302 IPC is made out against the appellant and at best the appellant could have been convicted for the offence under section 304 Part II IPC. 4 Mr. Pankaj Kumar, learned P.P., has submitted that the appellant is a 7. quack who had carried out an abortion without the consent of the deceased and in spite of the family members of the deceased making their best efforts she could not be saved. Such act of the appellant does invite a conviction under section 302 IPC and 313 IPC. 8. We have considered the submissions advanced by the respective counsels and have also perused the Lower Court Records. The evidence of the witnesses adduced by the prosecution 9. categorically proves the death of the informant on account of a reprehensible act of the appellant. The Fardbeyan of Anita Devi is itself a dying declaration as she had categorically stated about the appellant aborting her fetus without her consent and which led to rapid deterioration in her health. P.W- 4 is the owner of Nikhil Nursing Home who has stated about perforation in the uterus of the deceased which can be attributed to the appellant. He has further stated about referring the patient to a higher medical centre. The entire episode of the treatment of the deceased has also been narrated by P.W-3, the brother of the deceased. The evidence of the witnesses’ encaptulates the act of the appellant in carrying out an operation on the deceased without being sufficiently qualified to do so. 10. This brings us to the next question as to whether the act of the appellant would attract an offence under section 302 IPC or one under section 304 IPC. The extenuating circumstances do not reveal about any intention on the part of the appellant to commit the murder of the informant. The appellant admittedly is a quack and it is common in rural areas even in these days of medical advancement and availability of well equipped Government Hospitals and private Nursing Homes that people repose their faith on such quacks. The victim/informant had wanted an abortion to be performed which was perhaps all the more reason for the informant to have approached the appellant seeking privacy for such act. However, the operation carried out by the appellant became a nightmare for the informant as chronicled by the witnesses and even her subsequent treatment by a qualified medical practitioner could not reverse the precarious medical condition of the victim who ultimately succumbed to the damage caused to her vital organs by the appellant. Such act of the appellant cannot be termed to be intentional for causing death of the informant. In the given circumstances, the appellant could at best be convicted under section 304 5 Part II IPC. So far as conviction under section 313 IPC is concerned the same requires no interference by us. 11. The appellant has been given the maximum sentence of ten years rigorous imprisonment for the offence under section 313 IPC. The appellant has remained in custody since 6.1.2017. In view of the peculiar circumstances of the case, the sentence of the 12. appellant is reduced to seven years rigorous imprisonment for the offence under section 313 IPC. As regards the modified conviction of the appellant under section 304 Part II IPC is concerned, he is also sentenced to undergo rigorous imprisonment for seven years. 13. This appeal is accordingly dismissed with the aforesaid modification in the conviction and sentence dated 13.12.2017 (Sentenced passed on 17.2.2017) by the learned District & Additional Sessions Judge-III in connection with S.T. No. 547/09. 14. Since the appellant is in custody and has completed the modified sentence imposed upon him, he is directed to be released immediately and forthwith if not wanted in any other case. 15. Pending I.As, if any, stand closed. (Rongon Mukhopadhyay,J) (Deepak Roshan, J) High Court of Jharkhand at Ranchi Dated, the 6th May, 2024 Rakesh/NAFR 6