Surendra
Chauhan Vs. State of M.P [2000] INSC 142 (27 March 2000)
Ruma
Pal, D.P.Wadhwa D.P. WADHWA, J.
Appellant
Surendra Chauhan (Chauhan) has been convicted for an offence under Section
314/34 Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment
for seven years and a fine of Rs.10,000/- and in default of payment of fine to
undergo further rigorous imprisonment for a period of two years. Chauhan and
Dr. Ravindra Kumar Sharma (Sharma) were tried together. While Sharma was tried
under Section 314 IPC Chauhan was tried under Section 314/34 IPC. Sharma had
also been convicted under Section 314 IPC and similarly sentenced as Chauhan by
the trial court. Both filed appeal in the Madhya Pradesh High Court. Their
conviction and sentence were upheld and their appeal dismissed by judgment
dated January 7, 1998. Both sought leave to appeal from
this Court under Article 136 of the Constitution against the judgment of the
High Court. Sharma was refused leave. Chauhan was granted leave and that is how
the matter is now before us.
Alpana,
a young girl of 24 years of age, was living with her mother Lalita Soni, a
teacher, along with her younger sister 18 years of age. Alpana was not married.
On March 23, 1993 Alpana told her mother that she was
feeling unwell and would herself go to the hospital. Next day in the morning
when her mother was sitting in 'pooja', Alpana told her that she was going to
the hospital. She also told her mother that she along with Chauhan would be
going to Sharma for her treatment. As noted above, Sharma stands convicted and
sentenced. Same day at about 2 or 3 p.m.
while Lalita
was resting in her home both Sharma and Chauhan came to her and told her that Alpana
was in a serious condition. Sharma told Alpana was under treatment in his hospital.
Chauhan said that condition of Alpana was serious. Lalita told them that her
husband was not in the house and when he would come they would both go to the
hospital. Both the accused, i.e., Sharma and Chauhan said that the condition of
Alpana was very serious and insisted Lalita to accompany them. On this Lalita
immediately went along with them. In the hospital of Sharma she saw her daughter Alpana lying
on the table inside the clinic.
Lalita
found that her daughter was dead. She asked what was the reason of the
treatment and death of her daughter. On that Chauhan told her that he was
having illicit relations with Alpana as a result of which she was carrying
pregnancy of two to three months. He also told Lalita that he got Alpana
admitted in the hospital for her abortion and during the treatment the
condition of Alpana became serious causing her death. Lalita then went to
inform her husband Mohan Lal and again went to the hospital of Sharma by which time police had also arrived and there was crowd
standing outside the hospital.
Dr.
D.C. Jain is the professor of Forensic Medicines in Medical College, Raipur. In his deposition he said that in
his opinion Alpana was carrying the pregnancy of three months. He did not find
any injury in uterus or vagina. He said it was possible that the abortion was
caused without applying the anaesthesia to the deceased causing her death or
her death could be due to fear. He found that the uterus was enlarged
containing blood clots. He gave his opinion as under: - "Deceased was
pregnant foetus should be in uterus.
Foetus
age is 3 months. No injury to uterus or vagina detected. it is possible that
the deceased died of vagal inhibition due to the effect of abortion without anaesthesia
or due to fear." In his cross-examination he said that shock also takes
place during the fear. Dr. H.K. Josh performed post mortem on the dead body of Alpana.
According to him cause of death was shock.
There
have been concurrent findings that Chauhan was having illicit relations with Alpana
with the result that she became pregnant. He accompanied her to the clinic of
Sharma for her abortion. It has also come on record that Sharma was having
degree of Bachelor of Medicines in Electro Homoeopathy from the Board of
Electro Homoeopathic Systems of Medicines, Jabalpur (M.P.). This entitled him
to practice in Electro Homoeopathic systems of medicines. He also possessed a
Diploma of Bachelor of Medicines and Surgery in Ayurved. Alpana met her death
in the clinic of Sharma either due to shock or without applying anaesthesia
while she was being aborted. Sharma is not a medical practitioner, who
possesses any recognised medical qualification as defined in clause (h) of
section 2 of the Indian Medical Council Act, 1956, whose name has been entered
in a State Medical Register and who has any experience or training in gynaecology
and obstetrics.
Section
314 IPC is as under: - "314. Death caused by act done with intent to cause
miscarriage. Whoever, with intent to cause the miscarriage of a woman with
child, does any act which causes the death of such woman, shall be punished
with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine;
if act
done without woman's consent and if the act is done without the consent of the
woman, shall be punished either with imprisonment for life, or with the
punishment above mentioned.
Explanation.
It is not essential to this offence that the offender should know that the act
is likely to cause death." From the record it is apparent that Sharma and Chauhan
had intent to cause miscarriage of Alpana, who was pregnant, and death was
caused to Alpana by Sharma while conducting abortion. Two questions have been
raised before us for our consideration: (1) It was the extra judicial confession
of Chauhan made to Lalita that he was having illicit relations with Alpana due
to which she got pregnant and both he and Alpana wanted to have the abortion
and for that purpose Chauhan had got her admitted to the clinic of Sharma.
Confession
could not be solely made basis for conviction, and (2) Chauhan did not share
any common intention with Sharma to cause the death of Alpana.
As far
back in 1954 this Court in Dinabandhu Sahu vs.
Jadumoni
Mangaraj and others [1955 (1) SCR 140] said that Supreme Court does not, when
hearing appeals under Article 136 of the Constitution, sit as a court of
further appeals on facts, and does not interfere with findings given on a
consideration of evidence, unless they are perverse or based on no evidence.
During
the course of investigation police also recovered some instruments from the dicky
of the scooter of Sharma allegedly used for causing abortion. One Hindi book
containing the literature on abortion, contraceptives and one Hindi book
containing an illustrative abortion guide were seized from the clinic of
Sharma. When the Investigating Officer Y.K. Shukla (PW-9) stated that he
recovered the instruments from the dicky of the scooter of Sharma on his
disclosure statement, he had not been cross-examined. There is no reason for us
not to take into consideration the extra judicial confession of Chauhan made to
Lalita, mother of Alpann to base his conviction. It was quite natural in the
circumstances. It was Chauhan who took Alpana to the clinic of Sharma, who was
not a qualified doctor to cause abortion. Chauhan was known to Alpana and had
illicit relations with her. It is not possible to believe the defence version
that Alpana just died lying on the table in the clinic of Sharma. She was a
normal girl.
No
explanation is forthcoming either from Sharma or Chauhan as to in what
circumstances Alpana died. It was something within their knowledge. Court in
normal circumstance does accept the explanation of the accused consistent with
his innocence even though he has not been able to prove his defence by positive
evidence. But when the explanation offered by the accused or the defence set up
by him which is not only inconsistent with his conduct but is palpably false,
it cannot be worth consideration. When examined under Section 313 of the Code
of Criminal Procedure Chauhan was asked if he wanted to say anything in his defence.
He gave the answer as under: - "I am a driver. In connection with my work
I use to visit Kusumkasa. So I know the parents of the deceased. On the day of
incident I was going to motor stand. Then I saw Dr. Sharma standing outside his
hospital. He called me there and took me inside the hospital where the deceased
was lying and asked me whether I recognised her. I said that I knew her. Then
we both went to Kusumkasa inform the mother of the deceased by one scooter and
after informing brought her to the hospital. At that time there was lot of
crowd and police was also present. Mother of the deceased found that her
daughter was dead and she along with the police people went to the police
station.
Prosecution
version that I had illicit relations with the deceased is a wrong version. This
is also not true that I took the deceased to the hospital of Dr.
Sharma for abortion.
This is also not true that she came to my house when she visited Rajhara (where
clinic of Sharma is situated).
Witnesses
speak lies to get the persons involved." We may also note the defence set
up by Sharma. In answer to the question if he wanted to say something he said:
- "After opening my hospital I was examining the patients and prescribing
them medicines. After some time deceased came there and sat with the patients.
When I was examining the patients the deceased said that she was not feeling
well. I told her that she could lay down on the dressing table and after
examining the patients on her turn I went to her and asked about the problem
she had. She did not reply and after examining I found that she was dead.
Then I
came out of my hospital. Incidentally, Surender @ Bunty met me there. I took
him to that girl and asked whether he knew the deceased. He said that he knew
the deceased. Then I asked Surender @ Bunty to inform the parents of the
deceased about the incident. Then I asked somebody to go to police station and
lodge the report and I along with Surender @ Bunty went to inform the parents
of the deceased. We asked her mother that the deceased was serious and brought
her to the hospital where police was already present and lot of persons
gathered. Mother of deceased found that her daughter was dead. Thereafter she
along with police personnel went to the police station.
I had
not given any treatment to the deceased and I did not know why she had come to
the hospital.
Prosecution
version that I was trying to do the abortion of the deceased due to which she
died is false. I am innocent and I have been wrongly involved. " In the
circumstances of the case the defence set up either by Sharma or Chauhan could
not be true and had to be rejected.
It is
contended that Chauhan could not be convicted with the aid of Section 34 IPC.
Section 34 IPC is as under:
-
"34. Acts done by several persons in furtherance of common intention. When
a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same
manner as if it were done by him alone." Under Section 34 a person must be
physically present at the actual commission of the crime for the purpose of
facilitating or promoting the offence, the commission of which is the aim of the
joint criminal venture. Such presence of those who in one way or the other
facilitate the execution of the common design is itself tantamount to actual
participation in the criminal act. The essence of Section 34 is simultaneous
consensus of the minds of persons participating in the criminal action to bring
about a particular result. Such consensus can be developed at the spot and
thereby intended by all of them. {Ramaswami Ayhangar & Ors. vs. State of Tamil Nadu [(1976) 3 SCC 779]}. The
existence of common intention can be inferred from the attending circumstances
of the case and the conduct of the parties. No direct evidence of common
intention is necessary. For the purpose of common intention even the
participation in the commission of the offence need not be proved in all cases.
The common intention can develop even during the course of an occurrence. {Rajesh
Govind Jagesha vs. State of Maharashtra
[(1999) 8 SCC 428]}. To apply Section 34 IPC apart from the fact that there
should be two or more accused, two factors must be established: (I) common
intention and (ii) participation of the accused in the commission of an
offence. If a common intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as essentially it involves
vicarious liability but if participation of the accused in the crime is proved
and a common intention is absent, Section 34 cannot be invoked. In every case,
it is not possible to have direct evidence of a common intention.
It has
to be inferred from the facts and circumstances of each case.
There
is concurrent finding that Sharma with intent to cause the miscarriage of Alpana
with child by his act caused her death and the act was done in furtherance of
the common intention of Chauhan. He has thus been rightly convicted under
Section 314/34 IPC.
There
is another aspect of the matter. After coming into force of the Medical
Termination of Pregnancy Act, 1971 provisions of IPC relating to miscarriage
became subservient to that Act because of non obstante clause in Section 3
which Section is as under: - "3. (1) Notwithstanding anything contained in
the Indian Penal Code, a registered medical practitioner shall not be guilty of
any offence under that Code or under any other law for the time being in force,
if any pregnancy is terminated by him in accordance with the provisions of this
Act.
(2)
Subject to the provisions of sub-section (4), a pregnancy may be terminated by
a registered medical practitioner, - (a) where the length of the pregnancy does
not exceed twelve weeks, if such medical practitioner is, or (b) where the
length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks,
if not less than two registered medical practitioners are, of opinion, formed
in good faith, that (i) the continuance of the pregnancy would involve a risk
to the life of the pregnant woman or of grave injury to her physical or mental
health; or (ii) there is a substantial risk that if the child were born, it
would suffer from such physical or mental abnormalities as to be seriously
handicapped.
Explanation
1. Where any pregnancy is alleged by the pregnant woman to have been caused by
rape, the anguish caused by such pregnancy shall be presumed to constitute a
grave injury to the mental health of the pregnant woman.
Explanation
2. Where any pregnancy occurs as a result of failure of any device or method
used by any married woman or her husband for the purpose of limiting the number
of children, the anguish caused by such unwanted pregnancy may be presumed to
constitute a grave injury to the mental health of the pregnant woman.
(3) In
determining whether the continuance of a pregnancy would involve such risk of
injury to the health as is mentioned in sub-section (2), account may be taken
of the pregnant women's actual or reasonable forseeable environment.
(4) (a)
No pregnancy of a woman, who has not attained the age of eighteen years, or,
who, having attained the age of eighteen years, is a lunatic, shall be
terminated except with the consent in writing of her guardian.
(b)
Save as otherwise provided in clause (a), no pregnancy shall be terminated
except with the consent of the pregnant woman." Under Section 4 of the Act
termination of pregnancy shall be made in accordance with the Act and at a
hospital established or maintained by the Government or a place approved by the
Government for the purposes of the Act.
Rule 4
of the Medical Termination of Pregnancy Rules, 1975, framed under the Act,
provides as to how a place under Section 4 could be approved and how inspection
etc. of such place is to be carried out. A place shall not be approved under
Section 4:
"(i)
unless the Government is satisfied that termination of pregnancies may be done
therein under safe and hygienic conditions; and (ii) unless the following
facilities are provided therein, namely: - (a) An operation table and
instruments for performing abdominal or gynaecological surgery;
(b) anaesthetic
equipment resuscitation equipment and sterlisation equipment;
(c) drugs
and parenteral fluids for emergency use." In the present case Sharma was
certainly not competent to terminate the pregnancy of Alpana nor his clinic had
the approval of the Government. Even basic facilities for abortion were not
available in his clinic. Chauhan took Alpana to the clinic of Sharma with
intent to cause her miscarriage and then her death was caused by Sharma while
causing abortion, which act was done by Sharma in furtherance of the common
intention of both Sharma and Chauhan. There is no escape from the conclusion
that Chauhan had been rightly convicted under Section 314/34 IPC.
The
question then arises of the sentence awarded to Chauhan. We are of the opinion
that the sentence awarded is rather on the higher side. We would, therefore,
reduce the sentence of imprisonment to one and half years (18 months) rigorous
imprisonment but would enhance the fine to Rs.25,000 and in default of payment
of fine Chauhan to undergo further rigorous imprisonment for a period of one
year. In case fine is realised the same shall be payable to Lalita Soni, mother
of Alpana.
The
appeal is thus partly allowed.
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