STATE OF MAHARASHTRA Vs. JOAQUIM ANTONIO DSILVA

JUDGEMENT

(1.) THE respondent was tried for the death of Sajida Bi aged 18 years while causing miscarriage under section 314 of the Indian Penal Code. The prosecution had examined 8 witnesses in support of the charge. The respondent was acquitted of the charge by impugned judgment and State has come in appeal against the said acquittal.

(2.) BRIEFLY stated, the prosecution case is that the respondent had caused the death of Sajida Bi aged about 18 years while terminating the pregnancy in his clinic unauthorisedly. The death is reported to have taken place on 28th November 1989 at about 11. 30 a. m. The respondent came to the house of Sajida Bi on the same day at about 5. 30 p. m. and informed her father Sayed Abdul Rahim P. W. 3 that she had expired in his clinic at about 10. 30 a. m. Sayed Abdul Rahim P. W. 3 wanted that the postmortem of Sajida Bi be conducted and the respondent told him that it will take three days and the dead body will start smelling. The respondent agreed to give death certificate. The respondent handed over a letter to P. W. 3. According to P. W. 3, in the certificate, the cause of death was shown as low blood pressure and jaundice. In the circumstances, F. I. R. was lodged with the police by Shaikh Abdul Wahab P. W. 2, who is nephew of P. W. 3 Sayed Abdul Rahim. The F. I. R. was lodged at 10. 30 p. m. on the same day. The investigation into the matter was conducted by the police and the respondent was put up for trial for the offence under section 314 I. P. C.

(3.) LEARNED Public Prosecutor Shri Faria urged before us that the points to be determined in this case are whether the miscarriage in question was carried out by the respondent and whether the death was due to negligence of the respondent. He submitted that the fact that the deceased Sajida Bi died in the clinic of the respondent is not disputed, but the respondent disputes the factum of the miscarriage carried out by him. According to learned Public Prosecutor, the cause of death, according to certificate P. W. 1/d issued by the respondent, is stated to be hypotension (low blood pressure), jaundice and general debility, whereas, according to Dr. Silvano Dias Sapeco P. W. 1, who conducted the postmortem on the dead body of Sajida Bi, the cause of death was due to shock during termination of early pregnancy and it was a case of unnatural death. It was further urged by him that the respondent is not qualified to terminate the pregnancy and that inspite of over-whelming evidence on record, the learned Additional Sessions Judge acquitted the respondent taking into consideration factors which are not material. Thus, according to learned Public Prosecutor, the acquittal of the respondent cannot be sustained and is liable to be set aside. He, therefore, contends that the respondent be punished for the offence under section 314 I. P. C. , which had been duly proved by the prosecution.