Sunil Kumar Puspam @ Sunil Kumar ... vs The State Of Bihar
2023 Latest Caselaw 4328 Patna

     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
======================================================

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

====================================================== 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

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

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

07.08.2005 for 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

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

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

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

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

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

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

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

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

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

                     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

Exhibit-F C.C. of FIR Hasanpura P.S. Case No. 240 of

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

(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

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

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

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

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

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

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

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

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

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