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PETITIONER:

SURENDRA CHAUHAN

Vs.

RESPONDENT:

STATE OF M.P.

DATE OF JUDGMENT: 27/03/2000

BENCH:

Ruma Pal, D.P.Wadhwa

JUDGMENT:

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

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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

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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

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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

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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

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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

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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.