SARASWATHAMMA Vs. MULBAGAL POLICE STATION

JUDGEMENT

(1.) THE appellants have challenged their conviction and sentence for the offence punishable under Section 314 IPC on a trial held by the Sessions Judge, Kolar.

(2.) THE facts relevant for the purpose of this appeal are as under: The appellants are the A.N.M. [Auxiliary Nurse Midwife] and staff nurse respectively serving in Primary Health Centre at Mulbagal, Kolar District. Jayamma [deceased], daughter of Venkatachari, resident of Mallanayakanahalli, Dommasandra, Mulbagal, who lived with her husband for 5 years, later was residing with her parents and her husband used to visit Jayamma's house now and then. She was pregnant for the second time after she started living with her parents and as she had no desire to have another child, approached the Government Hospital at Mulbagal. It is alleged by the prosecution that appellant No.1 took Jayamma [deceased] to the residence of appellant No.2 and on the said day i.e., on 29.04.1992 both the appellants said to have caused abortion by terminating the pregnancy of Jayamma and she was sent to home on the next day. On 02.05.1992, as Jayamma suffered severe pain in the abdomen, she came to the hospital and complained the same to and got admitted. It is alleged that on 03.05.1992 the appellants threatened her not to disclose the termination of the pregnancy. On 04.05.1992, P.W.11-Dr.Chandrakala examined Jayamma [deceased] and found tenderness in the lower abdomen and bleeding in the vagina. It was not a menstrual bleeding and she was advised to get admitted for treatment. But, she did not disclose about the termination of pregnancy or abortion underwent at the hands of the appellants. As Jayamma [deceased] refused to get admitted, P.W.11 did not give any treatment. On 07.05.1992, when Jayamma again came to the hospital, P.W.11- Dr.Chandrakala asked the history of the complaint and at that time, she disclosed having underwent induced abortion on 29.04.1992 at the hands of the appellants. She was admitted in the Primary Health Centre for treatment of septic abortion and was administered with antibiotics, I.V. fluids and monitored. At this juncture, on an intimation from the hospital the Police came to the hospital and recorded her complaint-Ex.P6 in the presence of P.W.7-Dr. S.N.Vijaykumar. So also her statement was recorded as per Ex.P2 in the presence of P.W.2-Dr.P.Rathnamma. Jayamma [deceased] was sent to S.N.R. Hospital, Kolar for further treatment by the higher-ups. On the basis of the complaint- Ex.P6 recorded on 08.05.1992 at about 3.30 p.m., the crime was registered and while Jayamma was under treatment at S.N.R. Hospital, Kolar, died due to septicemia. The Police held inquest on the body of Jayamma as per Ex.P1 in the presence of P.W.1 and other witnesses, the spot-mahazar was held as per Ex.P5 in the presence of P.Ws.4 and 10, the statements of the witnesses were recorded, autopsy on the body of Jayamma was held, Ex.P3- post-mortem report was collected, the statement of P.W.8 and other witnesses were recorded and the viscera was sent to forensic laboratory for examination and report-Ex.P4 was collected. After completion of the investigation, charge sheet came to be filed by P.W.9-PSI. During the trial, the prosecution examined P.Ws.1 to 11 and got marked the documents Exs.P1 to 10. The statements of the accused were recorded under Section 313 Cr.P.C. They took the defence of total denial and no defence evidence was led. Against conviction and sentence Crl.A. No.548/2003 was filed and this Court allowed the appeal and set aside the conviction and remitted the matter to the trial Court. Thereafter, the trial Court framed the charge afresh for the offence punishable under Sections 304 Part II and 314 IPC. The said Order was challenged before this Court in Crl.R.P. No.253/2006 and the revision came to be allowed in part vide order dated 19.04.2006 and this Court directed the trial Court to frame the charge only for the offence under Section 314 IPC. It is under these circumstances, that the witnesses were recalled on the request of the appellants and after completion of the evidence, the trial Court heard learned counsel for the parties and convicted the appellants for the charge under Section 314 IPC and ordered the appellants to undergo simple imprisonment for one year and to pay a fine of Rs.25,000-00 each with a default sentence. Aggrieved by the conviction and sentence, the present appeal has been filed.

(3.) LEARNED counsel for the appellants would contend that there is no acceptable material for the charge under Section 314 IPC. As the only witness-P.W.8-Thippakka turned hostile, he would submit that Ex.P6-Statement of Jayamma [deceased] alone is insufficient to award conviction for the said charge. Further, it is his contention that Ex.P6 cannot be said to have proved as Jayamma was not in a condition to give statement and therefore, the reliance on Ex.P6 by the trial Court is improper and erroneous. It is also his contention that the death of Jayamma has no nexus with termination of the pregnancy and therefore, Section 314 IPC is not attracted. Alternatively, he submits that the appellants have faced the criminal proceedings for the last more than 20 years and in the circumstances, the fine amount would be meet the ends of justice. On the other hand, learned High Court Government Pleader supporting the Judgment and Order of the trial Court submits that Ex.P6 is the statement of Jayamma before her death and as the said document has been proved satisfactorily, there is no reason to reject it. He would further submits that the medical evidence led is sufficient to prove that the death was due to illegal termination of the pregnancy and therefore, the conviction is based on acceptable material placed on record by the prosecution.