Bench:
R Gupta
Issue:
Is the offence of destroying the evidence punishable under Section 201 of IPC and connected with offence of Section 313 of IPC?
Facts:
• The applicants, who are Doctors, have been charge-sheeted by the learned Sessions Judge, Raisen in S.T. No. 227/98, for offences punishable under Sections 313, 201, and 376 of the I.P.C.
• There was five accused standing trial, these two are Doctors. One of the accused had rapeda minor girl aged about 12 years and made her pregnant. The allegations were that two other co-accused took this girl, who was carrying five months' pregnancy, to Bhopal to these two doctors, i.e. applicants.
• They terminated her pregnancy so the charge on them is firstly causing miscarriage without the consent of the girl or even her guardian and thus causing the disappearance of evidence of rape, which was committed by the accused Riyaz Ahamad. Secondly, they committed miscarriage.
Appellant's contentions:
• The submission made was two-fold submissions - one that the rape was committed allegedly in Raisen District while the miscarriage had taken place at Bhopal. It was argued that carrying out miscarriage without consent is a distinct offence and not connected with rape in any manner, and not a part of the same transaction. So far the offence of miscarriage was concerned, these two Doctors, i.e. applicants, allegedly terminated the pregnancy.
• The second argument was that in fact, there was a consent of the mother of the girl that she will be in a mental worry for the girl of 12 years to deliver a child, but particularly when she was an unmarried girl and in such circumstances, Section 3 of the Medical Termination of Pregnancy Act, 1971 provides protection to these doctors, even if they carried out miscarriage.
Respondent's contentions:
• The submission of the mother of the prosecutrix given to the Police was placed before this Court and she said that she was never agreed for this miscarriage. There was no material to show that the girl (prosecutrix) herself gave any consent. Since this miscarriage cannot be said to be prima facie on consent, the second part of the argument of the learned counsel for the applicants fails.
Judgment:
The court observed that miscarriage punishable under Section 313 of the IPC cannot be necessarily said to be connected with rape. But it depends on facts and circumstances of each case as to whether the persons carrying out miscarriage will be deemed to be acting in the course of the same transaction as rape or not. After considering the facts and circumstances, prima fade, it appears to this Court that in this case, the act of miscarriage can be taken to destroy evidence and any charge under Section 201 has to be tried with the main charge of rape also. Section 313 is the act, by which offence under Section 201 has been committed. So doctors can be tried together with other accused. They were tried under Sections 201 of IPC along with 313 of IPC. Section 180 of the Code of Criminal Procedure was a relevant provision in this regard. (Para 6)
The court further opined that the offence of destroying the evidence punishable under Section 201 of IPC and this offence is connected with offence of Section 313 in this particular case, as miscarriage, is the methodology by which offence under Section 201 was done allegedly. So, these offences can be tried together under this provision. Thus, in the facts and circumstances of the case, the applicants had been charged properly along with othersaccused and the case was prima facie against them as the prosecutrix was denying having consent for the miscarriage. (Para 7)The revision was dismissed accordingly.
