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2014 DIGILAW 969 (MP)

Sumita Mukherjee v. State of M. P.

2014-08-07

G.S.SOLANKI

body2014
ORDER 1. This revision has been filed by the applicants under section 397 read with section 401 of the CrPC being aggrieved by order dated 27.2.2013 passed by Fifteenth Additional Sessions Judge, Jabalpur in S.T. No. 567/2011 whereby the charges under sections 312, 201 of the IPC have been framed against the applicants. 2. The facts, in short, giving rise to this revision are that co-accused Prakash Soni had been performing sexual intercourse with prosecutrix for about two years till February, 2011. Last sexual intercourse was performed between them in the month of February, 2011, thereafter, the prosecutrix became pregnant. On 12.5.2011 co-accused Prakash Soni had taken the prosecutrix to the Nursing Home of applicant No. 1, where applicant No. 1 aborted the prosecutrix with the help of other applicants. On the basis of aforesaid allegation, offence under sections 376, 312, 201 of the IPC has been registered against the co-accused and the applicants. 3. It is not in dispute that after investigation co-accused Prakash Soni was charge sheeted, however, an application under section 169 of the CrPC was filed by the prosecution itself for releasing the applicants because no sufficient evidence or reasonable ground of suspicion was found by the prosecution against the applicants. It is also on record that committal Court has not disposed of the aforesaid application filed by the prosecution and it appears that he has committed the case to the Court of Session. 4. At the time of framing of charge, it was argued on behalf of the applicants that there is no sufficient evidence on record for framing the charge against the applicants, therefore, the applicants be discharged from the alleged offences. 5. The learned trial Court after considering the rival contentions, framed the charges under sections 312, 201 of the IPC against the applicants, hence this revision. 6. Learned senior counsel for the applicants has submitted that the trial Court has committed illegality in framing the aforesaid charges against the applicants. The prosecution itself filed an application under section 169 of the CrPC, which was based on the report of investigation made by the Additional Supdt. Of Police wherein it was specifically found that on 12.5.2011, prosecutrix visited the Nursing Home of applicant No.1 along with her mother Munni. She was wearing a Mangalsutra and having Sindoor on her forehead, which shows that she was married. Of Police wherein it was specifically found that on 12.5.2011, prosecutrix visited the Nursing Home of applicant No.1 along with her mother Munni. She was wearing a Mangalsutra and having Sindoor on her forehead, which shows that she was married. Mother of the prosecutrix told that her daughter has come from her matrimonial house and she was bleeding continuously, therefore, she requested to examine her, thereafter, applicant No.1 examined the prosecutrix and found that she was having acute pain, therefore, she administered an injection to her, thereafter, at about 10:30 p.m., applicants No.2 and 3 informed to applicant No.1 that prosecutrix is bleeding heavily and her blood pressure is very low, thereafter, applicant No.1 after obtaining consent from the prosecutrix as well as her mother, which has found place in the register, performed abortion of the prosecutrix. It has been further mentioned in the aforesaid report that the abortion was done due to possibility of spreading poison in her body and if the abortion would not have been done, her life would have been in danger. Learned Senior Counsel has further submitted that the trial Court has failed to appreciate the aforesaid report on record, therefore, the trial Court has committed illegality in framing the charges under sections 312, 201 of the IPC, therefore, the applicants be discharged from the aforesaid charges. 7. Learned Panel Lawyer for the State has supported the order passed by the trial Court, however, he has conceded that the prosecution itself has filed an application under section 169 of the CrPC. 8. I have heard the learned counsel for the parties at length and gone through the application filed by the prosecution under section 169 of the CrPC and the report filed by the Additional Supdt. of the Police. The application filed by the prosecution under section 169 of the CrPC was solely based on investigation conducted by Additional Superintendent of Police wherein he recorded the statements of so many witnesses and reached to the conclusion that prima facie no case under section 312, 201 of the IPC is made out against the applicants. For the purpose of ready reference, section 312 of the IPC is reproduced below:- 312. For the purpose of ready reference, section 312 of the IPC is reproduced below:- 312. Causing miscarriage.- Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with the child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation.- A woman who causes herself to miscarry, is within the meaning of this section. 9. In the instant case, it has come on record that the prosecutrix and her mother herself went to the Nursing Home of applicant No.1 on 12.5.2011 and at that time the prosecutrix was wearing a Mangalsutra and was having Sindoor on her forehead, which is the sign of married lady in our society and mother of the prosecutrix requested that the prosecutrix is pregnant and she is bleeding heavily, therefore, applicant No. 1 after examining the prosecutrix found that she was having foetus of 6-7 months and administered two injections. The prosecutrix and her mother stayed in the Nursing Home at night and at about 10:30 p.m., applicants No.2 and 3 informed applicant No.1 that the prosecutrix is bleeding heavily, her blood pressure is very low and her pulse is also decreasing, thereafter, applicant No.1 examined the prosecutrix and in order to save her life after obtaining consent from the prosecutrix and her mother, which is available on record, caused miscarriage of the prosecutrix. 10. It appears that the trial Court has failed to consider the aforesaid aspect of the case wherein it has come on record that the miscarriage was caused in good faith to save the life of the prosecutrix. Thus, no case under section 312 of the IPC is made out against the applicants. Further nothing has been found on record that the applicants were involved in causing disappearance of any evidence to screen offender, therefore, no case under section 201 of the IPC is made out against the applicants. Thus, no case under section 312 of the IPC is made out against the applicants. Further nothing has been found on record that the applicants were involved in causing disappearance of any evidence to screen offender, therefore, no case under section 201 of the IPC is made out against the applicants. In my opinion, the trial Court has committed illegality in dismissing the application filed by the prosecution under section 169 of the CrPC and further committed illegality in framing the charges under section 312, 201 of the IPC against the applicants. 11. Consequently, this revision is allowed. Impugned order dated 27.2.2013 passed by Fifteenth Additional Sessions Judge, Jabalpur in S.T. No. 567/2011 is hereby set aside. The applicants are discharged from the charges under section 312, 201 of the IPC. Let a copy of this order be sent to the trial Court for information and necessary action. .......................