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2012 DIGILAW 1299 (GAU)

Dharmendra Das v. State of Assam

2012-11-29

P.K.MUSAHARY

body2012
1. Heard Mrs. R. Phukan, learned counsel for the appellant and also heard Mr. K. Munir, learned Addl. Public Prosecutor, Assam appearing for the State Respondent. 2. This appeal is directed against the judgment and order dated 30.3.2005 rendered by the learned Sessions Judge, Morigaon in Sessions Case No.9 of 2004 arising out of GR Case No.269 of 2001 convicting the appellant under section 493/313, IPC and sentencing him to undergo rigorous imprisonment for seven years and also to pay fine of Rs.40,000 to the victim girl and in default to suffer rigorous imprisonment for another three years for the offence under section 313, IPC. 3. The prosecution case in brief is that the victim girl had intimacy and love affairs with the appellant and they also indulged in sexual relationship out of which she got conceived. The appellant refused to accept her as wife, however, on some understanding the appellant brought to his parent's house and after living with her he started torturing her. The victim girl alleged that she was admitted in the Morigaon Civil Hospital and without her consent abortion was carried out. Having come to know about such illegal termination, she filed a complaint before the learned CJM, Morigaon which was forwarded to the police for investigation and report. The police registered a case which was ultimately registered as GR No.269/2001 under section 493/4207 313, IPC. The investigation culminated into filing of charge sheet, committal of the case by the Magistrate and framing of charge by the learned Court of Sessions. The appellant pleaded not guilty and claimed to be tried. The prosecution examined 8 witnesses while the appellant examined none. He took the stand of complete denial. The learned trial Court at the close of the trial convicted and sentenced the appellant as indicated above. 4. The victim girl was examined as PW3. She herself was the informant. In her evidence she admitted the fact that she had physical intimacy with the appellant and out of such intimacy she got conceived. At the time of termination she was carrying five months pregnancy. It is in her evidence that mother and sister of the appellant did not allow her to enter into their house and then the appellant brought her to her parent's house. Then she discussed the matter with her mother. At that stage the prosecution declared her as a hostile witness. 5. It is in her evidence that mother and sister of the appellant did not allow her to enter into their house and then the appellant brought her to her parent's house. Then she discussed the matter with her mother. At that stage the prosecution declared her as a hostile witness. 5. PW6, Smti Horemai Das, mother of PW6, in her evidence stated that prior to the alleged abortion, a boy from Nalbari came forward to marry her daughter and after discussion amongst the family members, the termination was done in the hospital. The other important witness is the Medical Officer, Dr. Arup Baruah, PW1, who was working as M&HO at Morigaon Civil Hospital during the said period. In his evidence he admitted that he had carried out the abortion in the civil hospital. The victim was admitted as a patient before 1.3.2001 and the abortion was carried out at the stage of 20 weeks pregnancy as the victim girl wanted to terminate her pregnancy 'on social ground'. The informant Dharmendra Das was present and he gave the consent for termination of the pregnancy. The patient was discharged on 12.3.2001. 6. I do not want to appreciate the evidence of other witnesses inasmuch as for disposal of this case it is only necessary to find out whether there was a consent in carrying out the abortion. 7. What is revealed from the evidence of mother of the victim girl is that while her daughter was carrying child without marriage, the family members discussed about absorption. The abortion became a necessity inasmuch as, a proposal for marriage, in the meantime, came from a boy and accordingly, she was taken to Morigaon Civil Hospital and she was admitted therein. So the fact of carrying out abortion stood admitted. It is on record that the doctor carried out the abortion in presence of the appellant. There is no evidence that the written consent of the girl as contemplated under clause IV(b) of the Medical Termination of the Pregnancy Act, 1971 was obtained but the medical report, Ext.1, speaks about the consent of the victim girl on social ground. The contents of the Ext.1 is quoted hereunder : "The patient was admitted in the Septic Ward, Morigaon Civil Hospital through M and H OPD at 2.10 p.m., 9.3.2001. Mrs. The contents of the Ext.1 is quoted hereunder : "The patient was admitted in the Septic Ward, Morigaon Civil Hospital through M and H OPD at 2.10 p.m., 9.3.2001. Mrs. Jan Das was carrying 20 weeks pregnancy, and wanted termination of pregnancy on social ground, consent for termination was given by Sri Dharmendra Das, Mrs. Jan Das, and the matter was known to Smti Promila Das (mother of the patient). Medical termination of pregnancy was done, and the patient was discharged from the hospital on 12.3.2001. Health of the patient at the time of discharge was good. Sd/- Dr. A.K. Baruah Dated Morigoan the 15.10.2001 Sr. Medical and Health Officer, Morigoan Civil Hospital, Morigaon, Assam." 8. From the above evidence of PW1 and the report (Ext.1) it is clearly established that there was a collective consent of the victim girl as well as her mother and the appellant before abortion was carried out in the hospital. With the evidence that has come out from the mouth of the victim's mother that a boy came forward to marry her, it can be presumed that termination of the pregnancy was an absolute necessity before giving her in marriage to a boy. It cannot be said that there was no consent of the victim girl at the time of carrying out the termination. 9. The learned trial court has failed to properly appreciate the evidence on record and in my considered view the order of conviction and sentence was passed without taking into consideration the aforesaid evidence on record. In view of the aforesaid evidence the conviction and sentence cannot be sustained. The judgment under challenge convicting and sentencing the appellant is liable to be set aside and quashed. It is ordered accordingly. The appellant is acquitted. It is stated at the bar that the appellant is on bail. The bail bond stands discharged. Appeal stands allowed and disposed of. 10. Return the LCRs.