Patna High Court
Sunil Kumar Puspam @ Sunil Kumar Yadav vs The State Of Bihar on 6 September, 2023
Author: Nawneet Kumar Pandey
Bench: Chakradhari Sharan Singh, Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1116 of 2019
Arising Out of PS. Case No.-851 Year-2009 Thana- SAMASTIPUR COMPLAINT CASE
District- Samastipur
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SUNIL KUMAR PUSPAM @ SUNIL KUMAR YADAV Son of Late Ram
Baran Yadav @ Nunu Prasad Yadav Resident of Village- Paridah, P.S.-
Hasanpur, District- Samastipur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : M Rama Kant Sharma, Sr. Advocate
Mr. Prashant Kumar
Mr.Abhay Shankar Singh
For the State Mrs. Shashi Bala Verma
For the Informant Mr. Ashish Gir
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY)
Date : 06-09-2023
This appeal has been preferred by the appellant
under Section 374 (2) of the Code of Criminal Procedure, 1973
for setting aside the judgment dated 19.07.2019 and the order of
sentence dated 22.07.2019 passed by the learned Additional
Sessions Judge-III/Special Court M.P./M.L.A., Samastipur in S.
T. No. 431 of 2011 arising out of Protest cum Complaint Case
No. 851 of 2009, whereby the appellant has been convicted and
sentenced as under:-
Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023
2/23
Conviction Sentence
under Section Imprisonment Fine (Rs.) In default of
fine
302 of the IPC RI for life 25,000/- RI for six
months
2. PW 5, Kabutri Devi is the informant of this case.
She happens to be the sister-in-law (gotni) of the deceased
Manju Devi. Her fardbeyan was registered on 07.08.2005. She
has mentioned in her fardbeyan that on 02.08.2005, at about
8:10 in the morning, she was going to Bithan Bazar with her
sister-in-law Manju Devi (the deceased). When they reached
near Sirisia bandh, a white-coloured Marshal vehicle, came
from the western direction. The persons, who were present in
that vehicle, asked as to why the informant and her sister-in-law
were not siding themselves from the way, despite the repeated
horn-blows upon which Manju Devi replied that there was mud
beside the road, which was the reason for not siding themselves.
The appellant, who was known to the informant from before,
got down from that vehicle. He started assaulting her sister-in-
law with the butt of a gun in her abdomen and, on outcry, the
appellant fled away in his Marshal vehicle. Initially, the victim
was treated by a village doctor, but he referred the patient to Dr.
Kamini Ray in Begusarai. As the condition of the patient
remained deteriorating, Dr. Kamini Ray referred her to Sadar
Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023
3/23
Hospital, Begusarai on 06.08.2005. The deceased died in the
way to the hospital. She has mentioned further that PW 1, PW 2
and PW 3 had also seen the occurrence.
3. On the basis of fardbeyan given by PW 5, Bithan
Hasanpura P.S. Case No. 164 of 2005 was registered on
07.08.2005for the offences punishable under Sections 302/34 of the IPC and Sections 3(i) (x) (xi), 3(2)(v) of the SC/ST Act.
4. After registration of the FIR, the investigation was carried out, and on completion of the investigation, the police did not send up the appellant for trial and submitted final form against him. The Investigating Officer submitted charge- sheet against six other accused persons who were not named in the FIR, including PW 1 Anil Yadav and PW 6 Pradeep Yadav.
5. It is pertinent to mention here that two days prior to her death on 04.08.2005, a complaint was filed by Manju Devi, the deceased, for the same incident which is Exhibit-5. Since the police submitted final form against the appellant, Kabutri Devi, PW5, filed a protest petition, on the basis whereof, the cognizance was taken and the case was committed to the court of sessions.
6. It is pertinent to mention here that the persons against whom the police had submitted charge-sheet, including Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 4/23 PWs 1 and 6, were put on trial and they were acquitted by the court of sessions, vide order dated 23.12.2011, passed in Session Trial No. 452 of 2011 since the court of sessions did not find evidence against them.
7. The charges were framed against the appellant for commission of the offence punishable under Section 302 of the IPC vide order dated 20.12.2011, to which the appellant pleaded not guilty and claimed to be tried.
8. In order to prove its case, the prosecution has examined altogether 8 witnesses including the informant Kabutri Devi, P.W. 5, who was with her gotni (the deceased) at the time of occurrence. PW 1 Anil Yadav and PW 6 Pradeep Yadav, who were made accused by the police and ultimately, acquitted by the sessions court, have deposed in favour of the prosecution. PW 7 is Doctor Ajay Lal, who conducted the post- mortem on the dead body of the deceased. PWs 2, 3 and 4 were declared hostile. Ram Lagan Lal, PW 8, is a formal witness, who has typed the protest petition made by Kabutri Devi (PW
5). The protest petition is exhibit-4. The following documentary evidences have also been adduced by the prosecution in support of its case:-
Exhibit-1 Signature of PW 6
Pradeep Yadav on
Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 5/23 fardbeyan Exhibit-2 Signature of PW 6 Pradeep Yadav on Inquest Report Exhibit-3 Post-mortem report Exhibit-4 Protest cum Complaint Case No. 851 of 2009 Exhibit-5 C.C. of C.R. 693 of 2005
9. PW 5, the informant, during her depositions, has stated that on the date of occurrence, at about 8 AM, she was on Sirisia bandh. She was going to Bithan Bazar along with her sister-in-law Manju Devi. When they reached on Sirisia bandh, they noticed a white-coloured Marshal vehicle which was coming from western direction. As there was mud in the way, her sister-in-law could not side herself despite blowing of the horn of the vehicle. The appellant came out from the vehicle and started assaulting Manju Devi with the butt of gun on her abdomen and waist. Manju Devi was then pregnant of four months. Having sustained injuries, Manju Devi fell on the ground. The informant assisted her and with her support, Manju Devi was brought to her house. There was profuse bleeding. She was treated in Samastipur whereafter she was referred to Begusarai as her condition continued deteriorating. During the course of treatment in Begusarai hospital, she died. The statement of this witness was recorded in Begusarai hospital, on Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 6/23 the basis whereof the present case was registered. The present case, as per the statement of the witness, proceeded on the basis of the protest petition lodged by her. She identified the appellant, who was present in the dock at the time of her deposition. During her cross-examination, she deposed that she was an illiterate woman. The name of her father-in-law is Battan Sada, who had two sons, namely, Ram Chandra Sada (her husband) and Thakko Sada. The deceased was residing in the same house, in which this witness resided. She deposed further that five persons were there in that vehicle, two of them were in police uniform. In para 31 she deposed that the name of brother of her husband is Vinod Sada. She further deposed that for two days, Manju Devi was treated by a village doctor in her house. She mentioned further that Manju Devi, the deceased, in her complaint petition no. 693 of 2005 had stated that she was brought in the Sub-Divisional Hospital, Rosera and due to her serious condition, she was referred to Samastipur Hospital for better treatment. She has also testified that before filing of the complaint petition, the pregnancy of Manju Devi was aborted. She denied the suggestion that the doctor, who had initially treated Manju Devi in the village had caezered out her intra uterine foetus and after killing it again inserted some part of Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 7/23 foetus into her uterus.
10. P.W.1 Anil Yadav is an eye-witness. The police had made him an accused in this case, but ultimately he was acquitted by the court of sessions. This witness has stated that on 02.08.2005 at about 8.am, he was present at Sirisia bandh. He saw a white-coloured Marshal vehicle coming from the western direction. Due to mud, the deceased could not side herself, despite horn-blow, whereupon the appellant got down from the vehicle and started assaulting her with the butt of the gun on her abdominal region. The deceased Manju Devi, sustaining injury became unconscious. Firstly, she was treated by a village doctor, whereafter she was referred to Begusarai hospital. She died during the course of treatment. After her death, the FIR was registered. The police exonerated the real culprit (the appellant) and had made accused this witness. This witness identified the accused appellant present in the dock. During his cross-examination, he has stated that the appellant, at the time of deposition, was an MLA of his constituency. This witness was not on litigating terms prior to the occurrence with the appellant. He has stated further that the police had also made accused Birendra Yadav, Pradeep Yadav, Sanjay Kumar Yadav, Maheshwar Yadav and Gopal Sharma, all were acquitted on Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 8/23 23.12.2011. In that case, Kabutri Devi had lodged a protest petition. He has stated further that he was not present at all the places where the treatment of Manju Devi was going on, but he was present in Begusarai, during her treatment in Begusarai hospital.
11. PW 2 Shiv Pujan Yadav, PW 3 Bishundeo Sada and PW 4 Gopal Yadav were declared hostile at the prayer of the prosecution, as they did not support the prosecution's case.
12. PW 6 is Pradeep Yadav. He was also made accused in this case but was ultimately acquitted. This witness is also an eye-witness. At the time of occurrence, he was going to bazar. When he reached near Bajrangbali temple, he saw a white-coloured Marshal vehicle coming from western direction, blowing horn. 3-4 persons were passing through that path and there was mud in the way. When Manju Devi was crossing the way through mud, the appellant got down from Marshal vehicle and started assaulting her. She fell down on the ground. Her sister-in-law (P.W.5) along with other persons brought her to the hospital. She had sustained injuries on her abdomen, waist etc. Firstly, she was brought to Rosera hospital wherefrom she was referred to Samastipur hospital and from Samastipur hospital she was referred to Begusarai hospital where she died in course Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 9/23 of the treatment. He has stated further that he was also an accused in Sessions Trial No. 452 of 2011. He has also deposed that he was an accused Hasanpur P.S.Case No. 240 of 2005, and there was allegation against him to attempt to fire at the appellant.
13. PW 7 is Doctor Ajay Lal, who conducted the postmortem on the deadbody on 06.08.2005 and he found the following ante mortem injuries:-
1. (i) No external injury present over the body
(ii) Blood and blood clots present in vaginal canal and cervical os open and admitted two finger.
2. On Dissection- Skull NAD Thoracic cavity- Heart Right chamber- full of blood, left chamber- empty.
Lung- Both lungs pale Abdominal cavity-lower abdominal cavity full of blood and blood clots Liver- Pale, spleen-pale, kidney-congested. Stomach- 50-60 ml gastric juice.
Bladder was empty. After mopping the lower abdominal cavity, the fundus of the uterus was lacerated with a hole size about 2"x1" going inside the uterine cavity.
Only the head portion of the foetus was found lying in lower abdominal cavity right side. Rest portion of the body of the foetus, placenta and umbilical cord was not found neither in the uterine cavity nor in the abdominal cavity.
3. Time elapsed since death - within 6 to 12 hours.
4. Cause of death- due to hemorrhage and shock as a result of rupture of the uterus, probably caused by attempted abortion.
Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 10/23
14. PW 8 is a formal witness, who identified the signature of the advocate on the protest petition.
15. After conclusion of the prosecution evidence, the appellant was questioned under Section 313 of the CrPC to enable him to explain the incriminating circumstances appearing in the prosecution evidence against the appellant. The appellant answered the questions in negative and pleaded his complete innocence.
16. The defence has also examined four witnesses. DW 1 is the I.O. of this case who had earlier submitted final form against the appellant. He deposed that after the investigation, on the orders of senior officers, he had submitted charge-sheet against 6 persons namely Birendra Yadav, Anil Yadav, Maheshwar Yadav, Sanjay Kumar Yadav, Gopal Sharma and Pradeep Yadav. The appellant, as per the evidence of this witness, was found innocent, based on the investigation done by him. In paragraph no. 2, this witnesses has deposed that he did not come to depose at the order of the court rather he had come on the asking of some persons. This witness, as per his statement in para 3, had not recorded the statement of any witness.
17. DW 2 is Doctor Satish Prasad Singh, who at the Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 11/23 time occurrence, was in-charge Superintendent of Rosera Hospital. He has stated that on 01.08.2005, he was posted in that hospital. The treatment of the deceased was done and it was found that she was carrying a pregnancy of 22 weeks. After two days, this witness was apprised by the attendant of the patient that her O.D. slip was missing and on his request, a duplicate O.D. slip was issued. The nurse apprised this witness that there was no external injury on the person of the deceased and only it was the case of bleeding. During his cross-examination, he has stated that he did not mention the name of the attendant of the patient in his report, neither he mentioned the factum of issuance of second O.D. sleep.
18. DW 3 is other I.O. of the case. He has stated that the witnesses, whose names have been mentioned in his deposition, apprised this witness, that the incident of marpit (drubbing) had not taken place. This witness did not find mud, etc. on the place of occurrence. He has stated further that Dr. Manju Sahay ( PW 4), had reported to him that Manju Devi was pregnant and the foetus was in right condition.
19. DW 4 is Doctor Manju Sahay, who was posted at Samastipur Hospital. She has stated that Manju Devi was admitted on 03.08.2005 in emergency ward and later on, she Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 12/23 was referred to a lady doctor, on duty, for examination. This witness examined her at 2:30 P.M. She did not find injury on external part of her body. As per the abdominal examination, the patient was gravid. Uterus was 14 to 16 weeks' size. No tender i.e. no pain was found. After vaginal examination, uterus was 16 weeks' size, there was no bleeding or discharge present. Uterus was anteverted and antiflexed. The patient was advised for ultrasonographic of abdomen. Ultrasonography was done at RB Ultrasonography centre, Kashipur, Samastipur, which shows gravid uterus with single live foetus of approximately 20 weeks of gestational age.
20. Some documentary evidences have also been adduced by the defense, which are as follows:-
Exhibit-A C.C. of C.R. 693 of 2005
Exhibit-B C.C. of FIR of Hasanpur
(Bithan) P.S. Case No.
164 of 2005
Exhibit-C C.C. of final form of
Hasanpur (Bithan) P.S.
Case No. 164 of 2005
Exhibit-D C.C. of Cognizance
order dated 29.04.2008
in Hasanpur (Bithan)
P.S. Case No. 164 of
2005
Exhibit-E C.C. of Cognizance
order with FIR of
Hasanpur (Bithan) P.S.
Case No. 240 of 2005
Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 13/23 Exhibit-F C.C. of FIR Hasanpura P.S. Case No. 240 of 2005
21. Mr. Rama Kant Sharma, the learned senior counsel, appearing on behalf of the appellant, has submitted that it is an apparently false case lodged for ruining the career of the appellant, as he is an emerging politician of the locality and as admitted by the prosecution's witnesses, at the time of occurrence, he was the sitting MLA of that constituency. He has submitted further that the police did not find implication of the appellant in this case and he was not sent up by the police for trial. During investigation, other six persons were found culprits by the Investigating Authorities but ultimately, they had been acquitted by the court of sessions. The present case has proceeded on the protest petition filed by PW 5 with some ulterior motive. He has submitted further that there are contradictions in evidences of prosecution's witnesses which makes the prosecution case doubtful. PW 1, in his Examination-in-Chief, has stated that Manju Devi was treated firstly at her home and subsequently, she was taken to Begusarai, where she died in course of treatment. This witness has deliberately suppressed about her treatment in the Sub- Divisional Hospital, Rosera and Samastipur by Dr. Manju Sahay Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 14/23 (DW 4). He has also submitted that it is surprising that the husband of the deceased, Vinod Sada, was not made witness in this case. He has further submitted that the Investigating Officer was not examined, rather was produced by the defence as DW 1 and he deposed against the prosecution itself. The next submission of the learned counsel is that DW 4 Dr. Manju Sahay has categorically stated that the victim (deceased) was treated by her on 03.08.2005. At that time, the intra uterine foetus was alive. There was no external injury on the body of the victim. He has also submitted that P.W.6, Pradeep Yadav, who was an accused in this case, was on inimical terms with the appellant and he was an accused in a case of Arms Act. The next argument of the learned counsel is that PW 6 has named Kabutri Devi in place of the deceased and has stated that the appellant had assaulted Kabutri Devi, who died in course of treatment. The next submission of the learned counsel for the defence is that the doctor (PW 7) did not find any external injury on the dead-body.
22. Lastly, the learned counsel has submitted that neither motive nor premeditation of mind or any kind of intention has been proved against the appellant and thus the prosecution has miserably failed to establish that it was the Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 15/23 intention of the appellant or he had knowledge that there is likelihood of cause of death by that assault in ordinary course of nature. Though not admitted, but even the prosecution case is assumed to be true, there is a complete lack of mens rea and guilty mind of the appellant, he reiterates.
23. Per contra, Ms. Shashi Bala Verma, the learned APP as well as the learned counsel for the informant have submitted that it is a case of glaring example by the Investigating Authorities tilting in favour of the appellant. The Investigating Authorities not only exonerated the appellant, who is real culprit but also falsely implicated the innocent persons, who are eye-witnesses of this case. Ultimately, those witnesses were acquitted by the court of sessions in Trial No. 452 of 2011. The eye-witness PWs 1, 5 and 6 have categorically stated that for the reason that the deceased could not side herself from the way, as there was mud, despite the horn blown by the Marshal vehicle, the appellant, in rage, started assaulting her by the butt of his gun on her abdomen and waist, injuring her badly, which caused her death, in course of treatment. The postmortem report corroborates the ocular evidence. The doctor (PW 7), who conducted the autopsy on the deadbody, found blood clots in the vaginal canal. Her abdominal cavity was found with full of Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 16/23 blood and blood clots. The uterus was lacerated with hole size injury about 2"x1" going inside the uterine cavity which suggested a case of criminal abortion, as suggested by Modi's Medical Jurisprudence.
24. She has submitted further that the husband of the deceased was not an eye-witness, so his non-examination is of no relevance. She has submitted further that so far as the submission of the learned counsel for the appellant that PW 6 Pradeep Yadav had taken the name of Kabutri Devi (PW 5) as deceased in place of Manju Devi is concerned, it is nothing but merely a slip of tongue and this fact does not go to the root of the matter.
25. A conjoint reading of medical as well as ocular evidences adduced by the prosecution, clearly establishes the fact that the appellant, in rage, had badly assaulted the deceased with the butt of the gun and made her injured. Due to assault made by the appellant, her pregnancy was terminated and ultimately she died.
26. There is nothing on record which shows that there was any dispute between the parties prior to the occurrence, as such, there is no reason or motive for false implication of the appellant. The eye-witnesses PWs 1, 5 and 6 Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 17/23 have fully corroborated the case of the prosecution by stating that when the deceased was not siding herself to clear the way to the Marshal vehicle of the appellant, he in rage, badly assaulted her on her abdomen and waist. PW 7 Dr. Ajay Lal has mentioned in the postmortem report (Exhibit-3) the cause of death was due to hemorrhage and shock as a result of rupture of uterus.
27. The argument on behalf of the defence that there was no external injury on the person of the deceased is of no much relevance. The nature of assault itself shows that there could be probability of internal injury and the absence of external injury on the dead-body is of no much relevance. The medical evidence is not only corroborated by the ocular evidence, but also it is corroborated by the contents of Complaint No. 693 (Exhibit-5) filed by none else than the deceased herself, two days prior to her death.
28. Section 32 of the Indian Evidence Act, 1872, which makes the statement made by a person who is dead or cannot be found etc. would be relevant fact when it relates to the cause of death of the person making statement or as to any of the circumstances of the transaction which resulted in his death. The relevant portion of Section 32 of the Indian Evidence Act is Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 18/23 extracted hereinbelow:-
"Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death.-
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
29. It has been held by the Hon'ble Supreme Court in the case of Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, (2010) 8 SCALE 477 and also in the decision of Sri Bhagwan Vs. State of Uttar Pradesh, (2013) 12 SCC 137 that even a statement under Section 161 of the CrPC can be treated as dying declaration.
30. The sanctity of the complaint made by the Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 19/23 deceased, in the present case, is much more than a statement made under Section 161 of the CrPC. In the statement under Section 161 of the CrPC, the signature of the maker of the statement is not taken, whereas in the present case, it is not a disputed fact, rather is an admitted fact that the deceased had filed Complaint Case No. 693 of 2005 in the court of CJM two days prior to lodging of the present case, in which she has stated that due to mud, she could not side herself despite the horn made by the vehicle, in which the appellant was present. Then, the appellant got down from the vehicle and he badly assaulted her on her abdomen, due to which her pregnancy was terminated.
31. Two days after filing of the complaint, the deceased died. Her statement made through the complaint petition two days prior to her death, is a disclosure of the cause of her death, as well as the circumstances of the transaction, which resulted into her death.
32. Thus, we do not find any reason to disbelieve the statement of the witnesses in respect of the assault made by the appellant on abdominal region of the deceased, resulting in her premature termination of pregnancy, due to which she died ultimately.
Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 20/23
33. The learned counsel for the defence has submitted that the allegation itself shows, though not admitted, that the appellant assaulted the deceased, but there is no motive or intention to cause the death of the deceased. The manner in which the occurrence is alleged to have taken place cannot be said that it was a premeditated and pre-planned act. At worst, it could be only a case of road rage for not giving space for smooth passing of the vehicle of the appellant. As such, it cannot be said that the appellant had intention/mens rea or guilty mind to cause the murder of the deceased.
34. Mr. Ashish Giri, the learned counsel for the informant has submitted that even if there is no motive or intention to kill, but the act of the appellant proves that he had full knowledge (though not intention), which must, in all probability, cause death, or such bodily injury as is likely to cause death, is enough for constituting a 'Murder', as provided under fourth clause of Section 300 of the IPC, which is reproduced hereinbelow:-
"300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-....
4thly.- If the person committing the act Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 21/23 knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
35. In support of his submission, Mr. Giri has relied upon a decision of Hon'ble the Supreme Court, reported in (2021) 1 SCC 596 Shatrughna Baban Meshram Vs. State of Maharashtra. The paragraph no.28 of the decision is relevant which is extracted hereinbelow:-
"28. According to clause fourthly under Section 300 IPC, the offence may come under the category of culpable homicide amounting to murder "if the person committing the act knows that it is so imminently dangerous that must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk or causing death or such injury as aforesaid."
36. In our view, the decision of the Hon'ble Supreme Court in Shatrughna Baban Meshram (supra) is not applicable in the present facts and circumstances. For bringing the case in clause 4 of Section 300 of the IPC, it must be proved Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 22/23 that the accused had at least the knowledge that his act is so imminently dangerous that it must, 'in all probability', cause death, or such bodily injury as is likely to cause death.
37. Now, the pertinent question is that whether the appellant had knowledge that the deceased was carrying a pregnancy and even if he had, had he knowledge that the act done by him must, 'in all probability', shall cause the death or such bodily injury to her, which in all probability shall cause the death of Manju Devi.
38. The phrase used in clause 4 of Section 300 of the IPC 'in all probability' shows that the felony must have intention that there is not even a little bit chance of survival of the deceased from the act done by him. In the present case, it cannot be assumed that the appellant had knowledge about the state of pregnancy of the deceased. Even if it is assumed that he had knowledge, it cannot be assumed that he acted with a knowledge there would not be even a little bit chance of her survival at any cost. In our considered opinion, the case of the prosecution does not fall under Section 300 of the IPC. As such, the appellant's conviction for commission of the offence punishable under Section 302 of the IPC recorded by the trial court cannot be sustained.
Patna High Court CR. APP (DB) No.1116 of 2019 dt.06-09-2023 23/23
39. In our opinion, the act done by the appellant comes under the purview of part II of Section 304 of the Indian Penal Code which provides punishment for commission of an offence of culpable homicide not amounting to murder. The appellant is convicted accordingly and the sentence of life imprisonment (R.I.), inflicted by the learned Additional Sessions Judge-III/Special Court M.P./M.L.A., Samastipur in S. T. No. 431 of 2011 arising out of Protest cum Complaint Case No. 851 of 2009, as noted above, is modified to the extent of rigorous imprisonment for five years and six months. We do not find any reason to interfere with the quantum of fine imposed by the learned trial court.
40. With these observations, the appeal is partly allowed.
(Nawneet Kumar Pandey, J) I agree Chakradhari Sharan Singh, J.
(Chakradhari Sharan Singh, J)
HR/-Kundan
AFR/NAFR NAFR
CAV DATE 23.08.2023
Uploading Date 08.09.2023
Transmission Date 08. 09.2023