Crl.A. 144/2003 BEFORE THE HON’BLE MR. JUSTICE P.K. MUSAHARY Heard Mr. A.M. Bora, learned counsel appearing for the accused appellant . Also heard Mr. B.B. Gogoi, learned Addl. P.P. Assam. 2. This appeal has been preferred by the appellant against the judgment and order dated 31.3.2003 rendered by learned Sessions Judge, Nagaon in Sessions C ase No. 5(N)/2001 convicting the accused appellant u/s. 304(A) IPC and sentenci ng her to undergo SI for 3 months. 3. The prosecution case, in brief, is that on 30.7.1999 one shri Ajit Borah brother of the deceased lodged an FIR with the officer in-charge of Morikolong Police Outpost informing that his unmarried sister Arati Bora died in the house of accused appellant Smti. Niru Das, a mid wife attached to Nagaon Civil Hospit al, while conducting delivery of a child in her house. On the basis of the said FIR a crime being Nagaon P.S. Case No. 524/99 was registered u/s. 314 IPC and af ter completion of investigation, charge-sheet was submitted against the accused appellant u/s. 314 IPC. The corresponding G.R. Case No. 1262/99 was committed to the Court of Sessions, Nagaon for disposal. The learned Court of Sessions frame d charge against the accused appellant u/s. 314 IPC which on being read over an d explained, the accused appellant denied the charge and pleaded not guilty. The learned Trial Court on completion of the trial and on consideration of the evid ence and materials on record and upon hearing the learned counsel for the partie s, convicted and sentenced the accused appellant as already mentioned above. 4. The prosecution examined altogether 4 witnesses including the I.O. and t he Medical Officer who conducted the post mortem examination on the dead body of the deceased Arati Bora. The defence examined none. 5. The accused appellant was however examined u/s. 313 Cr.P.C. from which the following positions have been found admitted : 1). The deceased Arati Bora came to the house of the accused appellant and she was pregnant of 8 months. 2). She stayed one night in the house of the accused appellant. 3). She gave birth to a still born child in the next morning and died in her house. 6. PW-1 and 2 are the brothers of the deceased. These two brothers did not accompany the deceased while she came to the house of the appellant. Nothing has been said by them for what purpose their deceased sister visited the house of t he appellant. They have not mentioned in their deposition whether their sister A rati Bora died due to any negligent action on the part of the accused appellant. These two PWs are not the eye witnesses. They could not throw any light under what circumstances the deceased died. 7. The I.O. was examined as PW-3. During investigation he visited the place of occurrence and sent the dead body of the deceased for post mortem examinatio n. He also seized one plastic saline pipe (Saline Set), which was found lying ne ar the dead body in the house of the accused appellant but there is no mention i n his deposition whether he found any still born child. The I.O. did not examine any neighbours as witnesses from the locality. Even the seizure witnesses were not examined by the prosecution. During investigation, the I.O. examined the fat her and mother of the deceased u/s. 161 CrP.C. and they were cited as witnesses in the charge-sheet but they were not produced before the learned trial court t o record their evidence. No reason has been assigned by the prosecution why the father and mother of the deceased, who are the vital witnesses were not examined . 8. The medical officer who conducted the post mortem examination was examin ed as PW-4. On examination he found signs of recent expulsion of foetus (deliver y) and in his opinion death was due to haemorrhage and shock following expulsion of foetus. In the cross-examination the Doctor stated that it was a case of nor mal delivery and nothing could be gathered from the medical evidence that Arati Borah died of malina or any other disease. 9. It is an admitted position that the accused appellant has been working a s a ’Dhai’ (mid wife) in the Civil Hospital, Nagaon. She had experience in condu cting delivery and she was authorized to conduct such delivery. It can be presum ed that the deceased who was carrying 8 months pregnancy came to the house of th e appellant, being an unwed mother, to take advice from her. It may also be pre sumed that the deceased was in such a condition who needed immediate treatment w hile she visited the house of the accused appellant. In the statement u/s. 313 C r.P.C. the accused appellant clearly stated that she pushed a saline into the bo dy of the deceased and it is also found that the saline set was recovere d and seized from her house. This is implied that she gave medical aid to the de ceased who unfortunately died after giving birth to a still born child. 10. There is nothing in the evidence of PW-1 and 2, both brothers of the dec eased, that due to negligence, not to speak of gross negligence of the accused a ppellant, their sister died nor did the doctor PW-4 opine that a wrong medical a id/ treatment was rendered by anybody, farless, by the accused appellant or negl igence on the part of the accused appellant causing death to the deceased. It is only the finding and conclusion of the learned Trial Court that death was cau sed due to gross negligence of the accused appellant. Such finding and conclusio n has no backing of the evidence on record. Moreover, as already observed earlie r that the prosecution, for some reasons known to it only, preferred not to exam ine the father and mother of the deceased although they were named as witnesses in the charge-sheet. In my considered view, it amounts to withholding of witnes ses. Such withholding of witness/ witnesses may be due to the reasons that had t he father and mother of the deceased were produced and examined before the lear ned Trial Court, they would not have supported the case of the prosecution and i t would have rather helped the defence. Without further discussion on the afore said aspect it can be said that the prosecution made no serious attempt in disch arging its duties and responsibilities in proving its case. Thus, in my consider ed view, the prosecution failed to prove its case beyond reasonable doubt, not t o speak of beyond all reasonable doubts, as required under the criminal jurispru dence. The Apex Court in Jacob Mathew Vs. State of Panjab and another reported i n (2005) 6 SCC 1, held that the accused doctor did something or failed to do som ething which in a given facts and circumstances no medical professional in his o rdinary senses and prudence would have done or failed to do, the result of which was most likely imminent danger. Further, it is necessary to show that death sh ould have been the direct result of a rash and negligent act of accused, and tha t act must be the proximate and efficient cause without the intervention of anot her’s negligence. The expression rash and negligent act within the meaning of section 304-A has to be read as qualified by word grossly . In the spresent ca se no such case, not to speak of criminal negligence, against the accused appel lant, has been made out. 11. In view of the above, I differ from the findings and conclusion arrived at by the learned Trial Court and I am disinclined to affirm/confirm the convic tion recorded and sentence imposed by the learned Trial Court vide impugned judg ment and order dated 31.3.2003. The prosecution, as I could find and concluded a s above, could not prove its case beyond reasonable doubt and the benefit of suc h doubt should be given to the accused appellant. Accordingly the judgment and o rder dated 31.3.2003 convicting and sentencing the accused appellant stands set aside and quashed. The accused appellant stands acquitted on benefit of doubt. A ppeal, accordingly, stands allowed. 12. Return the LCR.