Topic: Dr.Nisha Malviya v/s State of M.P - causing miscarriage without consent of girl

Dr. Nisha Malviya And Anr. vs State Of M.P
Madhya Pradesh High Court - Equivalent citations: 2000 CriLJ 671 - Bench: R Gupta – Date of Judgment: 5 August, 1999


R.P. Gupta, J.

1. Parties are heard finally.

2. The applicants, who are Doctors, have been charge-sheeted by the learned Sessions Judge, Raisen in S.T. No. 227/98, for offences punishable under Sections 313, 201 and 376 of the I.P.C. There are five accused standing trial, these two are Doctors. One of the accused had committed rape on minor girl aged about 12 years and made her pregnant. The allegations are that two other co-accused took this girl, who was carrying five months pregnancy, to Bhopal to these two doctors, i.e. applicants. They terminated her pregnancy. So the charge on them is firstly causing miscarriage without consent of girl or even her guardian and thus causing disappearance of evidence of rape, which was committed by the accused Riyaz Ahamad. Secondly they committed miscarriage.

3. There are two fold submissions made by the learned counsel for the applicants against the framing of charges - one that the rape was committed allegedly in Raisen District while the miscarriage had taken place at Bhopal. It is argued that carrying out miscarriage without consent is a distinct offence and not connected with rape in any manner, and not a part of the same transaction. So far the offence of miscarriage is concerned, these two Doctors, i.e. applicants, allegedly terminated the pregnancy. The second argument is that in fact, there is a consent of the mother of the girl that she will be in a mental worry for the girl of 12 years to deliver a child, but particularly when she was a unmarried girl and in such circumstances, Section 3 of the Medical Termination of Pregnancy Act, 1971 provides protection to these doctors, even if they carried out miscarriage.

4. The submission of the mother of the prosecutrix given to the Police, has been placed before this Court and in fact, she said that she was never agreeable for this miscarriage and has never given any consent. There is no material to show that the girl (prosecutrix) herself gave any consent. Since this miscarriage cannot be said to be prima facie on consent, the second part of the argument of the learned counsel for the applicants fails.

5. It may be pointed out that the miscarriage punishable under Section 313 of the IPC cannot be necessarily said to be connected with rape. But it depends on facts and circumstances of each case as to whether the persons carrying out miscarriage will be deemed to be acting in the course of same transaction as rape or not. The material factor in this case is that the girl of 12 years was subject matter of sexual act, that would be a rape whosoever committed on her, and that persons related (other co-accused) took her to Bhopal to get miscarriage when she was carrying five months pregnancy. The prosecution assertion is that this was got done to conceal or destroy the evidence of rape, as pregnancy is certainly an evidence of sexual intercourse having been committed on her. So the termination of this pregnancy was concealing or destroying that evidence. Thus, it will be a part of the same transaction as the rape, being an act of destroying evidence. It is also an act punishable under Section 313 of IPC being without consent. The Doctors, who terminated the pregnancy of the girl, have committed the offence under Section 313 of the IPC in the process of destroying the material evidence i.e. offence under Section 201, C.P.C.

6. After considering the facts and circumstances, prima fade, it appears to this Court that in this case, the act. of miscarriage can be taken to destroy evidence and any charge under Section 201 has to be tried with the main charge of rape also. Section 313 is the act, by which offence under Section 201 has been committed. So doctors can be tried together with other accused. They are being tried under Sections 201 of IPC along with 313 of IPC. Section 180 of the Code of Criminal Procedure is a relevant provision, reads as follows : "Section 180: Place of trial where act is offence by reasons of relation to other offence:- When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, the first-mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done."

7. Now, the offence of destroying the evidence punishable under Section 201 of IPC and this offence is connected with offence of Section 313 in this particular case, as miscarriage, is the methodology by which offence under Section 201 was done allegedly. So, these offences can be tried together under this provision. Thus, in the facts and circumstances of the case, the applicants have been charged properly along with other (accused and the case is, prima facie against them as. the prosecutrix is denying having cqnsentect for the miscarriage.

8. This revision is dismissed accordingly.