Himachal Pradesh High Court
_________________________________________________________________ vs Dr. R.D. Sharma on 1 May, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
-1- IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 136 of 2017 Reserved on: 09.04.2018 Decided on: 01.05.2018 .
_________________________________________________________________ State of Himachal Pradesh ....Petitioner.
Versus Dr. R.D. Sharma ...Respondent.
Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No. For the petitioner: Mr. Ashwani Sharma and Mr. P.K. Bhatti, Additional Advocates General.
For the respondent: Mr. Rajesh Mandhotra, Advocate. _________________________________________________________________ Chander Bhusan Barowalia, Judge The present petition is maintained by the petitioner/State under Section 482 Cr.P.C. against the order dated 04.07.2016, passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P., whereby the accused/respondent was discharged in FIR No. 70 of 2014, dated 16.05.2014, registered in Police Station Barmana, District Bilaspur, H.P., under Sections 316 and 107 read with Section 34 IPC. The petitioner/State prayed for quashing and setting aside the impugned order dated 04.07.2016, whereby the accused was discharged.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 02/05/2018 23:17:57 :::HCHP -2-2. The key facts necessary for disposal of the present petition can tersely be summarized thus:
The petitioner/State averred in the petition that on the .
basis of a complaint, so filed by the complainant, Ms. Priyanka Kapoor, FIR No. 70 of 2014, was registered by the police and upon culmination of investigation challan was presented before the learned Chief Judicial Magistrate, Bilaspur. The learned Chief Judicial magistrate committed the case to the learned Sessions Judge, Bilaspur. Thereafter, the learned Sessions Judge, Bilaspur, assigned the matter to learned Sessions Judge Ghumarsin for trial, but the learned Trial Court discharged the accused vide order dated 04.07.2016. It has been further averred in the petition that the learned Trial Court has failed to appreciate the documentary as well as the oral statements of the witnesses under Section 161 Cr.P.C.. The learned Trial court has wrongly discharged the accused (respondent), so the impugned order dated 04.07.2016, whereby the accused was discharged from the offences under Section 316 and 107 read with Section 34 IPC, be quashed and set aside.
3. Heard. The learned Additional Advocate General has argued that order dated 04.07.2016, passed by the learned Trial Court, whereby the accused/respondent has been discharged for the offences under Section 316 and 107 read with Section 34 IPC, ::: Downloaded on - 02/05/2018 23:17:57 :::HCHP -3- is without appreciating the facts, which have come on record, thus the same is liable to set aside. He has further argued that offence under Section 316 read with Section 34 IPC is in all circumstances .
is made out against the respondent. Conversely, the learned counsel for the respondent has argued that the learned Trial Court has passed the impugned order after appreciating the facts and the same is as per law, as the respondent cannot be held liable for the offence, as committed under Section 498IPC. He has further argued that no case is made out against the respondent as there is no allegation against him, so the petition, which sans merits, be dismissed.
4. In order to appreciate the rival contentions of the parties, I have gone through the record in detail.
5. This Court has to examine whether the respondent is liable for the offence under Section 316 read with Section 34 IPC and Section 107 IPC. It has come on record that FIR No. 70 of 2014, dated 16.05.2014, was registered at the instance of the complainant and the police record show that there is no allegations against the present respondent. Statement of the complainant was also recorded under Section 164 Cr.P.C., wherein she has deposed that accused Sushil Kumar and Satya Devi got conducted sex determination test from her through the respondent. The complainant did not state that the sex determination test was ::: Downloaded on - 02/05/2018 23:17:57 :::HCHP -4- conducted with an object to cause death of her fetus. Thus, the complainant did not attribute anything against the respondent, except that on 30.04.2014 he had conducted sex determination .
test on her. In fact, as per the version of the complainant, due to beatings given to her by accused Sushil Kumar and Satya Devi on subsequent day, i.e. 09.05.2014, she started bleedings excessively and the fetus died. The statement of the complainant nowhere reflects that the respondent had knowledge of the commission of the offence for causing death of fetus after the sex determination test. There are no allegations of respondent's conspiring with the other accused. Similarly, there are no allegations that the respondent aided other accused for the commission of the offence.
The complainant in her statement recorded under Section 161 Cr.P.C. also did not allege any allegations against the respondent.
6. Now, as far as the offences under PC and PNDT Act are concerned, the respondent would be prosecuted under the said law. It has also come on record that FIR No. 206 of 2014 has been separately registered against the respondent under Section 23 of PC & PNDT Act. Therefore, as far as the present proceedings are concerned, this Court after analyzing the material, which has come on record, finds that the impugned order passed by the learned Trail Court, whereby the respondent was discharged, is in accordance with law ::: Downloaded on - 02/05/2018 23:17:57 :::HCHP -5-
7. The Hon'ble Supreme Court in Chitresh Kumar Chopra vs. State (government of NCT of Delhi), (2009) 16 SCC 605, in paras 12 and 13 has held as under:
.
"12. The parameters of "abetment" have been stated in Section 107 IPC, which defines "abetment" of a thing as follows:
"107. Abetment of a thing.-A person abets the doing of a thing, who-
First.-Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.-A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."
13. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any willful misrepresentation or willful concealment of material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the ::: Downloaded on - 02/05/2018 23:17:57 :::HCHP -6- person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 IPC."
8. Applying the above law to the facts of the present case, .
the impugned order passed by the learned Trial Court is not required to be interfered with, as the same has been passed after appreciating the material, which has come on record, and also applying the law correctly to the facts of the case. Therefore, the petition sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, also stand(s) disposed of.
9. The Registry is directed to send the records of this case to the learned Trial Court forthwith.
(Chander Bhusan Barowalia)
1st May, 2018 Judge
(virender)
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