DEBOLA BISWAS Vs. STATE

JUDGEMENT

(1.) The present appeal is directed against the judgment of conviction 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.

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

(3.) 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.