KOCHU Vs. STATE

JUDGEMENT

(1.) This revision arises out of a case where a poor young woman, a divorcee, had to die ultimately in the Maternity Hospital, Trichur, where she was taken days after a criminal abortion after being turned away from three hospitals in the local area. Kochu, 28, the first accused, a distant relative of Saffiya, 28, the deceased in the case, was in illicit intimacy with her which resulted in her pregnancy. This was aborted without her consent by Kochupennu, the second accused, 42, an unqualified native abortionist at the instance of Kochu, in furtherance of their common intention to cause criminal miscarriage, by administering certain medicine in the vagina of Saffiya. Saffiya was given in marriage while she was very young and two children, Sukkur, aged 14 (P. W. 1) and Salim, 12, were born to her during the wedlock. While P. W. 1 was about 2 or 3 years of age Saffiya was divorced by her husband. Since then she was residing in a small thatched shed consisting of a small room and a kitchen thinly partitioned by cadjan leaves, along with her children. She was eking out her livelihood as an agricultural labourer. Kochu, a married man who was conducting a tea shop about half a kilometre away from the residence of Saffiya, used to make nocturnal visits to her which in due course resulted in her pregnancy. While she was five months' pregnant, Saffiya informed Kochu of it. But he was not prepared either to marry her or accept the paternity of the child in her womb. Kochu sought the assistance of Kochupennu to terminate the pregnancy. At about 9.30 p. m. on September 13, 1975 Kochu and Kochupennu came to the house of Saffiya and Kochu wanted Saffiya to save his honour and submit to abortion. Much against her will Saffiya was compelled to submit to the wishes of Kochu and at the instance of Kochu, Kochupennu administered some medicine into the vagina of Saffiya. Before doing this, P. W. 1 and his younger brother who were sleeping with their mother on the same mat were asked to go to the kitchen. After an hour, both Kochu and Kochupennu left the house. The next day evening Saffiya developed fever and pain and became restless. As directed by Saffiya, P. W. 1 conveyed information of her plight to Kochu. In the evening, Kochu came along with Kochupennu to the residence of Saffiya who was thereafter taken to the Mission Hospital at Karanchira. She was denied admission there. They took her to two other hospitals where also they could not secure admission to her. Kochu then took her back to her house and left her there without any treatment leaving her to suffer herself the excruciating pain and agony. When her condition deteriorated, she sent a chit through P. W. 1 to P. W. 4, the President of the local mosque seeking assistance. P. W. 4 directed P. W. 5, the Secretary, to take Saffiya to the Government Hospital and P. W. 5 accordingly removed her immediately in a car to Trichur where he contacted one Dr. Ibrahim who accompanied him to the Maternity Hospital, Trichur. Dr. Vijayalakshmi (P. W. 9) examined Saffiya at 10. 30 p. m. on September 21, 1975 and admitted her in the hospital for treatment. On examining Saffiya, P. W. 9 suspected criminal abortion and gave intimation of the same (Ext. P2) to the Town East Police Station. P. W. 6, Sub Inspector of Police, on receipt of the intimation on 23rd September 1975 visited the hospital at 6.30 p. m. and recorded Ext. P3 statement of the deceased. The F. I. R. prepared in this regard was transferred to the Valappad Police Station within the limits of which the occurrence took place. P. W. 10, the Sub Inspector of Police, Valappad, during investigation prepared a scene mahazar Ext. P9 and questioned P. Ws. 1 and 2 and others. While under treatment Saffiya died in the hospital at 10.20 a. m. on October 25, 1975. P. W. 7, Head Constable, who held inquest, prepared inquest report Ext. P1. Autopsy was conducted by Dr. Jayaprakash who issued Ext. P6, post mortem certificate. This, in short, is the prosecution case.

(2.) The accused denied the prosecution case and pleaded not guilty.

(3.) The Additional Assistant Sessions Judge, Trichur, who tried the case, relying on the evidence of P. W. 1 and Ext. P3, the medical evidence and other circumstances in the case found both the accused guilty under S.314 read with S.34 I. P. C. and convicted them thereunder. The first accused was sentenced to suffer rigorous imprisonment for 2 years and the second accused to suffer simple imprisonment for six months. On appeal the Court of Session, Trichur, confirmed the convictions of the accused, but reduced the sentence passed on the first accused to rigorous imprisonment for 18 months while confirming the sentence passed against the second accused.