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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.