Bombay High Court

Mukundrao Deaorao Pachpute vs State Of Maha on 12 September, 2024

2024:BHC-AUG:21555


                                                                     CriAppeal-151-2004
                                                  -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                   CRIMINAL APPEAL NO. 151 OF 2004

                 Mukundrao S/o Deorao Pachpute
                 Age 30 years, Occu. Agri.,
                 R/o Jaldhara,Tq. Kinwat,
                 District Nanded.                                 ... Appellant
                                                              [Orig. Accused No.1]
                       versus

                 1.    The State of Maharashtra

                 2.    Shobha d/o Digambar Dukre,
                       Age 49 yrs, Occu. Homemaker,
                       R/o Jaldhara, Tq. Kinwat,
                       District Nanded                            ... Respondents

                                                   .....
                             Mr. S. J. Salunke, Advocate for the Appellant.
                            Mr. S. K. Shirse, APP for Respondent No.1-State
                                       Respondent No.2 is served.
                                                   .....

                                                CORAM :     ABHAY S. WAGHWASE, J.
                                                DATED :     12 SEPTEMBER 2024

                 JUDGMENT :

1. The judgment and order of conviction dated 16.02.2004 passed

by learned 2nd Adhoc Additional Sessions Judge, Nanded in Sessions

Case No. 64 of 2002 recording guilt of the appellant for offence under

Section 313 of the Indian Penal Code [IPC] is hereby assailed in the

instant appeal.

CriAppeal-151-2004

FACTS IN BRIEF, GIVING RISE TO THE INSTANT APPEAL

2. In all five accused were charge-sheeted on receipt of complaint

of PW1, who reported that she was married to Ramrao, but later on

she had obtained divorce. She had love affair with appellant Mukund.

Out of their such relation, there was physical intimacy due to which

she conceived. After she was five months' pregnant, appellant accused

took her to the hospital and got her pregnancy terminated. That, he

also did not keep his promise of performing marriage. That, she was

not willing to get her pregnancy terminated but was forced and

therefore, on her report Exhibit 22, police registered crime for offence

under Sections 313, 323, 504 r/w 34 of IPC.

3. After completion of investigation and on gathering sufficient

evidence, accused were chargesheeted and tried by learned 2 nd Adhoc

Additional Sessions Judge, Nanded vide Sessions Case No. 64 of

2002. Trial culminated into conviction of appellant Mukundrao alone,

whereas, rest of the accused were acquitted. Such judgment and order

of conviction is now the subject matter of appeal before this Court.

CriAppeal-151-2004

SUM AND SUBSTANCE OF THE EVIDENCE IN TRIAL COURT

4. In support of its case, prosecution examined in all 8 witnesses.

Their role and status and the sum and substance of their evidence can

be summarized as under :

PW1 Informant stated that one year prior to the incident, she was married. Her husband came to know her love affair with appellant Mukund and therefore he divorced her. That, out of physical relations with appellant, she conceived. When she was

5 months pregnant, accused had promised to marry her. He did not marry her and more over, against her will and wish, he got her pregnancy terminated.

PW2 Maternal aunt of informant stated that informant was married to Ramrao, however, because of her illicit relations with Mukunda, he gave her divorce. Informant was visiting appellant and she had conceived. That, later on accused threatened and forced her to terminate pregnancy.

PW3 Babusha did not support prosecution as he denied visits of informant to the field of accused.

PW4 Ramrao is husband of Informant and he stated that after marriage, informant did not cohabit with him and she used to say that she disliked him, therefore he divorced her. He identified "farkatnama" Exhibit 31.

CriAppeal-151-2004

PW5 Prakash acted as pancha to panchanama of the hospital Exhibit

33.

PW6 Dr. Savita is the medical practitioner and gynaecologist, who terminated the pregnancy. While giving evidence, she stated that she is unable to identify complainant and therefore, was declared hostile and subjected to cross-examination.

PW7 Dr. Supriya, also a doctor who examined victim on 29.09.1997 and issued certificate Exhibit 47.

PW8 API Mali is the Investigating officer, who carried out investigation and chargesheeted accused.

SUBMISSIONS

On behalf of the appellant :

5. Learned counsel for the appellant pointed out that there is false

implication. According to him, here, prosecution has failed to

establish beyond reasonable doubt that there was any forceful

termination of pregnancy so as to attract Section 313 of IPC. He

pointed out that there was even no iota of evidence in support of

conception of informant only due to physical intimacy with appellant.

He took this court through the testimony of victim and other

witnesses and pointed out that FIR is after one month. He also CriAppeal-151-2004

pointed out that, from the evidence of informant, it is clearly

emerging that contents of the FIR were not narrated by her but were

rather at the behest of one Tukaram Shirde, who was from rival

political group, and therefore implication is at his instance. According

to him, FIR is afterthought and with sole intention to implicate. He

strenuously submitted that in report Exhibit 22, on the strength of

which crime is registered, name of appellant is not appearing as

accompanying victim to the hospital of Dr. Bhalerao, where there was

said to be alleged medical termination of pregnancy. That, learned

trial court has not appreciated and analyzed the evidence as required

by law and has not considered that essential ingredients for attracting

Section 313 of IPC are not available in prosecution evidence.

Therefore, according to him, such findings and judgment cannot be

allowed to be sustained.

On behalf of the respondent-State :

6. While resisting the appeal, learned APP pointed out that victim

has categorically stated that there was promise of marriage and

therefore there was physical intimacy. That, victim had reported that

she had conceived from appellant. In spite of she to be five months'

pregnant, without her consent, medical termination of pregnancy was

performed and therefore, clearly offence of 313 IPC is made out.

CriAppeal-151-2004

Thus, according to learned APP, learned trial court has correctly

appreciated the evidence and by assigning sound reasons, conviction

has been rendered. That, judgment is infallible and hence he prays to

dismiss the appeal.

7. Here conviction is for offence under Section 313 of IPC. The

said provision reads as under :

"313. Causing miscarriage without woman's consent.- Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine."

8. Evidence of PW1 informant is crucial in this case, because

precise story of prosecution is that without her consent, her

pregnancy was terminated. Therefore, it would be desirable to deal

with her testimony in the court which is at Exhibit 21. PW1

informant, after deposing about her love relations with appellant

Mukunda, prior to and post marriage with Ramrao, stated as under ;

"After the divorce, I had continued to stay at the house of my parents in village Jaldhara. I had love affairs with CriAppeal-151-2004

appellant Mukunda since prior to my marriage with Ramrao Dhakre. Since my divorce with Ramrao Dhakre, accused Mukunda went on visiting me at my parents house as well as at land of the accused Mukunda. Accused Mukunda had sexual intercourse with me during one year prior to my marriage with Ramrao and also subsequent to my marriage with Ramrao. Due to the said sexual relations, I conceived. When I was pregnant of more than 5 months, deceased Nilabai, wife of brother of accused Mukunda, took me to the hospital of Dr. Bhalerao at Nanded. Nilabai brought me to the hospital of Dr. Bhalerao for abortion as I had told her that I had conceived due to sexual relations with accused Mukunda. At that time Nilabai and myself were accompanied by accused Mahadu Zalke and Pramod Ramji Davare. At the hospital of Dr. Bhalerao, accused Mukunda gave my fake name Renuka Satwa Wanole. Accused Mukunda, Mahadu, Pramod, deceased Nilabai and Dr. Bhalerao terminated my pregnancy. Then I was taken to Jaldhara. My parents did not allow me to stay with them and asked me to accompany accused Mukunda at his house. Thereafter accused Mukunda allowed me to stay at his house for two days and thereafter kept me at gotha (cattle shed). After the said one month, accused Mukunda, Devrao, Panchafulabai abused and beat me and drove me out of their house. The parents of accused Mukunda also drove me out of their house. After incident of beating to me, I lodged complaint at Islapur police station. The complaint bears my signature. I am now read over the complaint. The contents are true and correct. It is at Exh. 22...."

CriAppeal-151-2004

She further deposed that :

"I was admitted in the hospital of Dr. Bhalerao for seven days. Dr. Bhalerao gave me medicines and injections and terminated my pregnancy. Mahadu Zalke, Pramod Davre and Nilabai gave their signatures at Dr. Bhalerao but they did not allow me to know what papers they have signed. At the hospital of Dr. Bhalerao, my signatures were not obtained on any papers. At the hospital of Dr. Bhalerao accused Mukund told me that he will marry with me if I gave consent for termination of pregnancy. He also told me that he will not marry with me unless I consent for termination of pregnancy. I was not willing for termination of my pregnancy. Accused Mukund forced me for termination of my pregnancy."

9. She is subjected to extensive cross and in the relevant cross, she

answered that she is not married with accused Mukund and that, he

was already married in 1996 and he has two children. She admitted

that when she gave police complaint, Tukaram Shirde and Punjabai

had accompanied her. Her complaint is written by Tukaram Shirde.

Punjabai is sister of her mother. She answered that she does not know

why it is not mentioned in her complaint that appellant Mukund was

also accompanying her in the hospital of Dr. Bhalerao.

CriAppeal-151-2004

10. Next crucial witness is PW2 Punjabai, maternal aunt of

informant, and she too stated that, after Ramrao gave divorce to

informant on learning about her illicit relations with Mukunda,

accused Mukunda visited house of informant even after her marriage

and after her divorce. Informant used to visit land of accused for

agricultural work. She conceived from accused Mukunda. Thereafter,

accused took informant to hospital of Dr. Bhalerao and got her

pregnancy terminated. Later on she was allowed to stay in their house

for two to three days, and then kept in cattle shed for one months and

then beaten by Mukunda, Devrao and Panchfulabai. Thereafter

informant went to the house of her parents. Since then she was

residing with her mother. This witness stated that when informant

returned from Nanded, she informed this witness that accused and his

family members threatened her and forced her to undergo

termination of pregnancy.

11. PW3 Babusha did not support.

12. PW4 husband of victim merely stated that he gave divorce to

victim on 30.05.1996.

CriAppeal-151-2004

13. PW6 Dr. Bhalerao is the medical practitioner, in whose hospital

victim allegedly underwent medical termination of pregnancy. In her

evidence at Exhibit 34, initially after going through papers article A,

and C, she stated that pregnancy of one Renuka Satwaji Wanole was

terminated in her hospital on 05.08.1997. As a routine oral consent of

the lady was obtained and pregnancy was terminated . The lady was

pregnant for 14 to 16 weeks. She is unable to state whether lady was

accompanied by any woman but she identified articles A, B and C to

be of her hospital. She also deposed that she does not remember

whether she had personally terminated pregnancy. Exhibit 34 shows

that learned trial Judge took note in the evidence itself as under :

"Note: In the light of statement made by witness on oath, it is necessary to call the complainant in the Court so that the witness recollects her memory and deposes truly in the interest of justice. Complainant be called. Witness shall appear for her further evidence on 14.11.2003."

When examination-in-chief was resumed, PW6 deposed that

she is unable to identify complainant and whether she is the same

lady whose abortion was performed by her on 06.08.1997. Therefore,

not finding her supporting, learned APP sought permission of the

court to cross examine her, during which she identified CriAppeal-151-2004

articles/Exhibits 36, 37 and 38. She answered that she does not

remember whether she verified the name of the patient and her

husband. She admitted that she did not obtain signature of the lady

for her consent, but further stated that she might have obtained oral

consent of the lady. In further cross, she denied that she terminated

pregnancy of the lady though lady had no consent for termination of

pregnancy.

14. Another important witness is PW7 Dr. Supriya who is also a

private practitioner. In her evidence she stated that on 29.09.1997,

she examined informant who was referred by police, and she noticed

"presence of mondgomeripuberplus on breast, presence of lentor

nigra on abdomen and her perspecula examination show parous

cervix", and she identified document Exhibit 47. In cross she

answered that according to her, pregnancy of informant must have

been aborted or it must be pre-term delivery before about 6 months.

15. PW8 is the investigating officer.

ANALYSIS

16. On complete re-appreciation of evidence of PW1 informant, it is

emerging and she has categorically stated in her substantive evidence

that she had love affair with Mukunda and said relation continued in CriAppeal-151-2004

spite of her marriage with Ramrao (PW4). It is pertinent to note that

in chief itself she had stated that, accused Mukunda used to have

sexual intercourse with her during one year prior to her marriage

with Ramrao and also subsequent to the marriage with Ramrao, as a

result of which she had conceived. Her such testimony explicitly

shows that there used to be physical relations between appellant

Mukunda and informant even prior to marriage of informant with

Ramrao and even subsequent to marriage. How many days there was

cohabitation with Ramrao has not come on record. But considering

her evidence that there was physical intimacy with Mukunda even

after her marriage with Ramrao, there is reason to hold that she was

having physical relations simultaneously with both, Mukunda as well

as Ramrao. She claims to have conceived through physical relation

with appellant Mukunda, but except her such bare words, that she

conceived only through Mukunda is not established. Apparently, no

DNA test has been done to ascertain as to from whom or with whose

intimacy she had gained pregnancy. Moreover, as pointed out by

learned counsel, she has accompanied deceased Nilabai to the

hospital, as according to her, Mukunda had promised to perform

marriage with her. But there is nothing to show that at that point of

time she was already separated or divorced by Ramrao. Her evidence

that, because of promise of marriage and condition that he would CriAppeal-151-2004

marry her only if she terminates her pregnancy, clearly shows that she

herself proceeded to the hospital to get her pregnancy terminated.

Had she been not willing, she would not have visited the hospital and

got medical termination of pregnancy performed. Even as pointed out

by learned counsel, presence of appellant at the hospital is not stated

by her in her report Exhibit 22, and regarding which omission is also

brought in her cross para 2.

17. What Section 313 contemplates is, medical termination of

pregnancy without consent. Here, this necessary ingredient is not

established by prosecution and is also evident from her above

discussed testimony. Therefore, there is weak evidence on the point of

commission of offence under Section 313 of IPC.

18. It is also pertinent to note that the doctor in whose hospital the

pregnancy was terminated i.e. PW6, has stated that the lady's oral

consent was obtained. It has also come in the evidence that appellant

is not signatory to the necessary consent papers at the hospital.

Taking such material into consideration, defence of appellant that he

was not present at the time of abortion and as such, at first count

ought not to have been chargesheetd and tried of offence under

Section 313 of IPC, has force.

CriAppeal-151-2004

19. Apparently, FIR is not prompt, rather it is after almost a period

of one month of alleged medical termination of pregnancy and only

when she was allegedly driven out not only by appellant but even by

her parents. Thereafter she seems to have reported her maternal aunt

PW2 Punjabai, and then steps seem to have been taken. Further, even

she has admitted that Tukaram Shirde is the author of complaint and

she herself had not written or narrated contents of Exhibit 22, which

was the basis of registration of crime. This aspect also weakens

prosecution version.

20. Therefore, on complete re-appreciation of evidence, here, it is

noticed that victim has admitted that at the time of her marriage with

Ramrao, she was having love affair with appellant Mukunda. She

clearly stated that even after marriage, she continued her affair and

had developed physical intimacy with appellant i.e. during

cohabitation with Ramrao. Though she claims to have conceived,

except her bare allegation that said conception was only and only

from Mukund, it cannot be said that the pregnancy is attributable to

him. There is no scientific evidence that the conception was out of her

intimacy only and only with Mukunda. Secondly, in the report, she

has not named him for taking her to the hospital. His presence at

hospital is patently missing when alleged medical termination of CriAppeal-151-2004

pregnancy was performed. Her evidence also shows that she has

undergone the procedure of termination believing offer of marriage.

Therefore, it cannot be said that the pregnancy was terminated

against her wish. Even there is nothing in black and white to show

that appellant had consented for medical termination of pregnancy

before the procedure was conducted at hospital. On the contrary,

PW6 deposed about obtaining oral consent of PW1.

21. Under such circumstances, required ingredients that

termination of pregnancy was without her consent, does not stand

established. Apart from FIR to be after inordinate delay, there is no

evidence of any injury so as to attract Section 323 of IPC. For such

reasons, case of prosecution does not stand.

22. Perused the judgment. Above aspects are not taken into account

by learned trial Judge while appreciating the evidence. Therefore,

interference is called for. Hence, the following order is passed :

ORDER

I. The appeal is allowed.

II. The conviction awarded to the appellant Mukundrao, by learned 2nd Adhoc Additional Sessions Judge, Nanded in Sessions Case CriAppeal-151-2004

No. 64 of 2002 under Section 313 of IPC on 16.02.2004 stands quashed and set aside.