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2017 DIGILAW 1346 (KAR)

S. Ravikumar v. State of Karnataka

2017-10-04

RATHANAKALA

body2017
ORDER : Mrs. Rathanakala, J. This revision petition is directed against the order dated 21st April, 2016 passed in S.C.No. 100/2014 by the Additional District and Sessions Judge, Davanagere, refusing to discharge the revision petitioner/accused of the offences under Sections 498A, 506, 313 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. 2. On the complaint lodged by the second respondent against the revision petitioner herein and his family members (totally nine accused persons), the first respondent/Police registered a case in Crime No.25/2012 in respect of the offences under Sections 498A, 506, 313 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. On completion of the investigation, charge sheet is filed. 3. The petitioner filed an application under Section 227 of the Code of Criminal Procedure, to discharge him from the offences alleged against him. Said application was dismissed by the Additional District and Sessions Judge, Davangere, vide his considered order dated 8.12.2014. Aggrieved petitioner filed a revision petition before this Court in Criminal Revision Petition No.207/2015. This Court allowed the petition vide order dated 6.1.2016 and remanded the matter to the Trial Court for fresh consideration. The operative portion of the order reads thus : "The revision petition is allowed. The matter is remitted to the trial court to pass appropriate orders keeping in mind the answers submitted by the doctors of City Hospital, Shivamogga, and the relevant provision of Section 3 of The Medical Termination of Pregnancy Act, 1971, in regard to the charges framed under Section 313, I.P.C., preferably at the earliest". 4. In pursuance of the above order, the Trial Court re-considered the matter and has rejected the application. 5. The gist of the prosecution case is, the complainant Smt. Sowmya and the petitioner were married on 13.10.2010. As per the demands made by the bridegroom and his family, dowry in cash and kind was given to them. The couple resided in a rented house at Davangere. Sometime thereafter the first accused started pestering the wife for additional dowry and a site. Accused Nos.2 to 9 pressurized the complainant to undergo medical termination of pregnancy otherwise it would be a hurdle for divorce. On 8.11.2010, she was made to undergo termination of pregnancy in a Private Nursing Home against her consent. They also harassed her for additional dowry amount. The husband deserted her and issued notice for divorce. Accused Nos.2 to 9 pressurized the complainant to undergo medical termination of pregnancy otherwise it would be a hurdle for divorce. On 8.11.2010, she was made to undergo termination of pregnancy in a Private Nursing Home against her consent. They also harassed her for additional dowry amount. The husband deserted her and issued notice for divorce. On 2.6.2012 in the premises of Family Court, Davangere, the husband abused her filthily and put threat of dire consequence. 6. Sri. B.S. Prasad, learned Counsel appearing for the petitioner submits that the petitioner is restricting his prayer to discharge him of the offence under Section 313 of IPC only. It is a case of medical termination of pregnancy consequent upon the wife voluntarily failing in her attempt for abortion, even before her marriage with the petitioner. As per the prosecution papers itself, the parties were married on 13.10.2010. The complainant/wife had consumed pills for abortion firstly on 10.6.2010 and secondly on 10.9.2010. She underwent termination of pregnancy on 8.11.2010. At that time, she was pregnant by five months. After one year of abortion, a female child is born on 23.5.2011. Divorce notice is sent on 22.10.2011. The petitioner filed a petition for divorce before the Family Court at Shimoga on 2.11.2011. Subsequently, it was transferred to Davangere Court on the question of jurisdiction. On 30.1.2012, the wife filed her objection statement indicating that she will file complaint for dowry harassment and termination of pregnancy. In pursuance of the same, she filed a complaint on 25.6.2012. As per the documents collected by the Investigating Officer from the City Hospital, Shimoga, she was accompanied by her husband, her parents and her in-laws to the Hospital. She was pregnant by five months and had pain in the abdomen. She suspected that because of the drugs she had consumed, the child with defect may be born. The Doctor in his letter has categorically mentioned that, she had given her consent for termination of pregnancy, but her signature could not be obtained on the consent form because she was in severe pain. As per Section 3(2)(b)(ii) of the Medical Termination of Pregnancy Act, 1971 ('the Act' for short), medical termination of pregnancy is permissible when there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities, and would be seriously handicapped. As per Section 3(2)(b)(ii) of the Medical Termination of Pregnancy Act, 1971 ('the Act' for short), medical termination of pregnancy is permissible when there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities, and would be seriously handicapped. The second explanation to the above provision contemplates "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." The drug she has consumed twice was "Misoprostol and Mifepristone". The side effect would have caused disability to the foetus but the prosecution is relying on the documents collected from Hegde Dialysis Centre, which reflect that when examined through Ultrasound Scan, the foetus was of 19 weeks and was healthy. But the Ultrasound Scan may fail to detect major and minor anomalies at the stage of late pregnancy. In the given circumstance, the provisions of Section 313 of IPC are not attracted. The complainant being a major person with sound mind since had given her consent, the medical termination of pregnancy conducted by the Doctor was not illegal. Law does not stipulate the consent of the woman in writing. There is enormous delay of three years in lodging the complaint as a counter blast to the divorce petition filed by first accused. The court below failed to comply with the direction issued by this Court in Criminal Revision Petition No.207/2015 dated 6.1.2016. The oral submission made by the prosecution is against their own document. The impugned order may be set aside and the petitioner may be discharged of the offence under Section 313 of IPC. 7. Sri. S. Chandrashekaraiah, learned High Court Government Pleader for the prosecution and Sri. A. Hanumanthappa, learned Counsel for second respondent/de facto complainant in one tone seek to sustain the order of the court below and would submit that, no limitation is contemplated under the Code of Criminal Procedure to lodge a complaint in respect of the offences the accused are charge-sheeted. As could be seen from the documents collected from the court below, Ultrasound scan was conducted just five days prior to her medical termination of pregnancy, the foetus was healthy without any abnormalities. As could be seen from the documents collected from the court below, Ultrasound scan was conducted just five days prior to her medical termination of pregnancy, the foetus was healthy without any abnormalities. Having married the first accused/petitioner herein, who was responsible for the pregnancy, there was no need for her to undergo abortion. The very fact that there is no written consent by her itself indicates that she was subjected to forceful termination of pregnancy. Rightly the trial court on examination of the materials has found that there are materials to frame charge under Section 313 of IPC and rejected the application filed by the petitioner. 8. In the light of the above submissions, I have perused the impugned order so also the charge-sheet papers, in the light of Section 3 of the Act. The trial court has perused and discussed the reply given by the Doctor, who carried out termination of pregnancy of the complainant/wife, to the questionnaire of the Investigating Officer. The Trial Court stressed on the fact that the signature of the complainant/wife is not borne out in the consent form taken by the hospital. Since the complaint allegation is to the effect that she had not given consent for termination of pregnancy, the court opined that it was difficult to believe at that stage that the pregnancy is terminated with the consent of the complainant. Thus, the court felt that whether the consent was voluntary or not, has to be tested through the trial. The learned Judge also adverted on the fact that before carrying out the termination of pregnancy, no test was conducted. The inference drawn by the Trial Court since based on the materials available on record and it is yet to be established during the trial that the situation is covered by Section 3(2)(b)(ii), Explanation clause (2) of the Act, I find no error on the part of the court below in rejecting the application of the petitioner. Hence, the petition is dismissed.