DEEPA SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal under sec. 374(2) of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the judgment dated 30.1.1993 passed by Shri Sriprakash Rai, 4th Addl. Sessions Judge, Vaishali at Hajipur convicting the appellants under sec. 313 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for five years each and also to pay a fine of Rs. 500/ - each in default to further undergo imprisonment for six months each.

(2.) THE prosecution case, in short, is that on 4.12.1985 a station diary entry no. 68 was lodged at the police station. Another station diary entry no. 29 dated 2.1.1986 was also lodged there. On the basis of these two entries Bhagwanpur P.S. Case No.1 of 1986 was lodged.

(3.) ON behalf of the appellants it has seriously been contended that no miscarriage as alleged by the prosecution did ever take place. In this connection my attention has been drawn to Exhibit 5 which is the injury report of the Doctor who examined the wife of the informant at 5.45 P.M. on 4.12.1985. This shows that no injury was found on the abdomen. The Doctor also did not find any bleed ing taking place. In this connection a reference may be made to the evidence of the Doctor S.C. Jaisawal (P.W. 8). He has stated that on 4.12.1985 he had examined Sushila Devi the wife of the informant and had found only three superficial injuries on her person so much so that she was discharged from the hospital on 6.12.1985. He has further stated that at the time of admission in the Hospital she did not complain of any pain in the abdomen and no blood was coming out from her private part. No doubt he has stated that on 6.12.1985 Sushila complained of pain in the abdomen but she was not advised any pathological test. No pathological test report is on the record. Thus the medical evidence on this point is far from satisfactory, Ac against this the defence has examined D.W.1 Nagendra Choudhary to state that the injured Sushila Devi gave birth to a son and Ext.. A is the birth certificate of her son. Subsequently according to him the child died and Ext. A/1 is her death certificate. D.W.1 has been put to the test of the cross -examination but it has nowhere suggested to him that Exts. A and A/1 are forged and fabricate documents. On the strength of these documents the appellants have contended that actually no miscarriage has taken place. On the other hand Sushila Devi gave birth to a healthy child though subsequently he died as will appear from 'Ext. A/1. This completely goes against the case of the prosecution.