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-3- 52.REVN.29.2023. Judgment.odt before taking the victim to the accused No.2, the accused No.1 met the accused No.2 and apprised him about his problem. The accused No.1, as per the case of prosecution, assured the victim that he had already spoken to the accused No.2 and the accused No.2 would give her medicine and thereafter there would be miscarriage. The accused No.1 took the victim to the accused No.2. The accused No.2 gave her medicines/tablets like HP4, Destam, Ome Tab, Dashmularist etc. The victim consumed the medicines. On the next day, there was vaginal bleeding. The informant, the mother of the victim carried the victim to the Government Hospital, Bhandara. The Medical Officer apprised the mother of the victim about the pregnancy and miscarriage. It is the case of the prosecution that the accused No.2 gave the medicines/pills to the victim and, therefore, the miscarriage was caused. The accused Nos.1 and 2 are, therefore, facing the prosecution. 06] The accused No.2 made an application before the Sessions Court, Nagpur for his discharge. According to him, he has not committed any offence. There was love affair between the accused No.1 and the victim. The victim was brought to him by the accused No.1. The accused No.2 examined the victim for stomach pain. He gave the medicine to the victim and he
-4- 52.REVN.29.2023. Judgment.odt prescribed the medicine to the victim. It was his duty to protect the victim who was brought to him as a patent. He has acted in a good faith. He has not committed any offence. The final report given by the experts stating that the miscarriage was caused due to the medicines, is vague and cannot be accepted.
07] The prosecution has filed reply and opposed the application before the Sessions Court. It is the case of the prosecution that during the course of investigation, the tablets were seized from the victim and sent for analysis and examination. The report has been received. The report clearly indicates that the miscarriage can be caused by the medicines prescribed by the accused No.2. It is further stated that the accused No.2 was not authorised to prescribe the medicine. He is not Gynecologist. He did not refer the victim to the Gynecologist. It was, therefore, contended that the accused No.2 has not made out a case for discharge.
08] The learned Additional Sessions Judge on the basis of the material placed on record found that the complicity of the accused No.2 has been prima facie made out. The learned Judge, therefore, rejected his application.
-5- 52.REVN.29.2023. Judgment.odt 09] I have heard Mr. H.G. Katekar, learned advocate for the accused No.2, Mr. A.R. Chutke, learned Additional Public Prosecutor for the State and Ms. A.M. Kshirsagar, learned advocate for the victim. Perused the record and proceedings. 10] The learned advocate for the accused No.2 submitted that the accused No.2 on the say of the accused No.1 in good faith prescribed the medicine to the victim. The learned advocate submitted that the accused No.1 prescribed the medicine for the acute pain in the stomach of the victim. The learned advocate submitted that at the relevant time he was not aware that the victim was carrying pregnancy. The learned advocate submitted that the report submitted by the expert stating that the medicines prescribed by the accused No.2 caused miscarriage, is vague and, therefore, cannot be made the basis of the prosecution. The learned advocate submitted that the learned Additional Sessions Judge has not taken all these aspects into consideration and as such has come to a wrong conclusion. The learned advocate further submitted that the provisions of the POCSO Act cannot be applied against the accused No.2, in view of the mandatory provisions of Section 41 of the POCSO Act.

-6- 52.REVN.29.2023. Judgment.odt 11] The learned Additional Public Prosecutor for the State submitted that at this stage the Court has to see the evidence available on record and not to appreciate the said evidence and record a finding of fact as to the issue involved in the trial. The learned Additional Public Prosecutor submitted that there is overwhelming evidence on record to establish the complicity of the accused No.2 in the commission of crime. The learned Additional Public Prosecutor submitted that the protection of Section 41 of the POCSO Act is not applicable to the case of the accused No.2. 12] It is to be noted that after investigation, the charge- sheet came to be filed against the accused Nos.1 and 2. During the course of investigation, the medicines/tablets prescribed by the accused No.2 to the victim were seized and forwarded to the Superintendent, Government Ayurvedic College, Nagpur. The panel consisting of three members on examination of the tablets/medicines gave the report. In the said report, it has been categorically stated that the tablets/medicines prescribed by the accused No.2 to the victim has caused miscarriage. The report dated 3rd March, 2021 is on record. It is the case of the prosecution that the accused No.1, who is not the custodian or guardian of the victim, had taken her to the doctor. It is the case of the prosecution