Orissa High Court
Md. Sharif vs State Of Orissa on 28 February, 1996
Equivalent citations: 1996CRILJ2826
ORDER R.K. Dash, J.
1. The petitioner (hereinaftcr referred to as "the accused") assails the judgment of the learned Additional Sessions Judge. Rourkela. passed in Criminal Appeal No. 94/3 of 1989/90 whereby heconfirmed the conviction recorded against him by the learned Assistant Sessions Judge. Rourkela.
2. The prosecution case brought out during trial was that the accused had an intrigue with Sabina Khatun (P. W. 10) as a consequence the latter became pregnant. On 15-7-88 he without the knowledge of her parents brought Sabina to a nursing home at Rourkela and disclosing his identity to the doctor, P.W. 1 as her husband, got her pregnancy terminated. The parents of Sabina Khatun on coming to know of this came to the nursing home and ascertained the truth on a report being lodged at the police station, a case was registered and after usual investigation, charge-sheet was laid against the accused to face trial under Sections 366 and 312, I.P.C.
3. The accused refused the indictment.
4. The prosecution, in order to bring home the charge, examined a good number of witnesses and the learned trial Court on assessment of the evidence convicted the accused under Sections 363 and 312. I.P.C. and sentenced him to suiter three years' rigorous imprisonment on each count. On appeal, the learned Additional Sessions Judge, while acquitting the accused of the charge under Section 363, I.P.C. confirmed the conviction and sentence for the offence under Section 312. I.P.C. It is against that judgment of the appellate Court that the present revision has been preferred.
5. Earlier the revision was heard and disposed of by judgment dated 20-8-93 and the Hon'ble single Judge while upholding the conviction of the accused under Section 312, I.P.C. reduced the sentence of three years rigorous imprisonment to one year. Feeling aggrieved, the accused approached the Hon'ble apex Court and their Lordships upon hearing the counsel for parties, set aside the judgment and remitted the matter back for fresh consideration. This is how the revision has come before me for fresh disposal.
6. Two contentions have been raised assailing the ultimate conclusions of both the Courts below : first, that it being the evidence of the prosecution that to save the life of the victim girl, it was felt necessary to cause abortion, an offence under Section 312, I.P.C. cannot be said to have been made out and secondly, the available evidence on record does not prove beyond doubt that the accused had any role to pay in the alleged miscarriage.
7. A cursory look at the evidence of the victim girl, Subina Khatun, P.W. 10 would show that there was an intrigue between her and the accused, as a result, she became pregnant and being afraid of any social stigma, she agreed and gave her consent to terminate her pregnancy. The question then arises whether such termination of pregnancy falls within the mischief of Section 312. I.P.C. As the sections stands, one who voluntarily causes a woman with child to miscarry, shall be liable if such miscarriage is not caused in good faith for the purpose of saving the life of the woman concerned. The expression 'causing miscarriage" would include anything done or given to procure abortion. So the person directly responsible for causing miscarriage as well as the woman whocaused herself to miscarry arc liable for the offence. This being the position of law, in the present case both doctor and the girl (P.W. 10) ought to have been arrayed as accused. Instead, the prosecution thuoght it prudent to proceed against the accused only, since according to it, he played the vital role and abetted the commission of the offence; inasmuch as he brought P.W. 10 to the nursing home and got her aborted. In this context it is necessary to have a bird's eye view on the evidence of the doctor, P.W. 1. As would be seen from his evidence, on clinical examination of P.W. 10 he found that there was profuse bleeding from uterus which could happen as she attempted to terminate her pregnancy through a village quack and this being a case of emergency, he terminated the pregnancy to save her life. In view of his such evidence. I am of the opinion that termination of pregnancy of P.W. 10 in the circumstances falls within the exception of Section 312, I.P.C.
8. The above being my finding, the next question that is whether the accused had any role to play in causing miscarriage becomes academic. As I have stated earlier, the intrigue between P.W. 10 and the accused reached the climax; as a result P.W. 10 became pregnant. It was therefore, possible that she being unmarried decided to terminate her pregnancy and for that she took the help of the accused, her lover, to consult the doctor, P.W. 1. It is no doubt true that the accused accompanied P.W. 10 to the nursing home, but evidence is lacking that pregnancy of P.W. 10 was terminated on his instruction. It may be that he had passive support for the same, but for that he cannot be held criminally liable when both victim girl (P.W. 10) and the doctor (P.W. 1) have not been arraigned as accused.
9. Having given my anxious consideration to the materials on record, I would hold that the prosecution has failed to bring home the charge under Section 312. I.P.C. against the accused. In that view of the matter, the conviction and sentence recorded by the Trial Court and confirmed by the appellate Court are set aside.