ALKA SHARMA Vs. STATE

JUDGEMENT

(1.) By virtue of these petitions, the petitioners are challenging the order on charge dated 3.8.2005 as well as the formal charge which has been drawn up against them on 8.8.2005. The petitioners are the sister-in-law (Alka Sharma), father-in-law (Om Dutt Sharma), brother-in-law (Arun Sharma) and mother-in-law (Krishna Kumari Sharma) and the husband (Manoj Kumar Sharma) of the complainant (Smt Kamini Sharma). The charges have been framed against all these petitioners by virtue of the impugned orders, firstly under Sections 498A/34, IPC and, secondly, under Sections 315/34, IPC and, thirdly, under Sections 506/34, IPC. Insofar as the mother-in-law, namely, Krishna Kumari Sharma is concerned, an additional charge under Section 406, IPC has also been framed.

(2.) Mr. Luthra, who appears for all the petitioners, submits that, first of all, the case under Section 315, IPC is hot made out inasmuch as before it could be said that the offence under Section 315, IPC is made out, It must be established that the child has either been prevented from being born or has died after his birth. He states that the factual position is that the child was born and is still alive, therefore, the basic ingredients of Section 315, IPC have not been satisfied. As such, the charge under Section 315, IPC requires to be done away with. As regards this submission, Mr. Malik, who appears for the State, submitted that while it is a fact that the child was born and that the child is still alive, as is borne out from the charge-sheet itself, the offence under Section 315, IPC is still made out. According to him, it is not at all necessary that the child ought to have died for the formation of the offence under Section 315, IPC. I have examined the provisions of Section 315 and I find that the arguments advanced by Mr. Luthra are tenable and those by Mr. Malik are not tenable. The said Section 315 reads as under:

(3.) Reading the above section, it becomes clear that it pertains to two stages,one prior to birth of the child and the other after the birth of the child. Insofar as the stage prior to birth of the child is concerned, if an act is done with an Intention to prevent the child from being born alive, the offence is made out only If by such act, the child is prevented from being born alive. In the present case, the allegation is against the mother-in-law and the sister-in-law to the effect that on 26.3.2003, they gave her (the complainant) one sachet containing some powder/medicine which she was required to take. This was administered to her on the ground that it would be good for her. However, the petitioner's case is that it was some sort of medication or drug to induce abortion in the said Smt. Kamini Sharma. In fact, the prosecution's case is that after she took the said substance, it induced bleeding and she was taken to hospital and she was treated there. The child, however, was born on 19.8.2003. Therefore, the twin conditions of doing an act to prevent the birth of the child and the actual prevention of birth of the child have not been satisfied. As such, on a reading of the material on record itself, the offence under Section 315 is not made out. However, since as per the allegation, there was an attempt to carry out an intention which might have resulted in the offence under Section 315, it would be appropriate if the charge is modified to one under Section 315 read with Section 511 and 34,IPC as against the mother-in-law and the sister-in-law. Insofar as the other petitioners are concerned, there is no such allegation against them and, therefore, this charge against them requires to be dropped.