Imtiaz Ismail Shaikh vs State of Gujarat

Akil Kureshi, J.—The appellant is the original accused. By judgement and order dated 16.1.1995, learned Additional Sessions Judge, Navsari convicted the appellant for offence punishable u/s 312 of the Indian Penal Code. He was sentenced to three years of rigorous imprisonment and also directed to pay fine of Rs. 500/-

As per the charge exh.1, it was alleged against the appellant that the appellant runs a dispensary at village Kimjar, Vaghbari. On 30.3.1988, at his dispensary, he had carried out abortion of fetus of two months of one Savitaben, daughter of Chanabhai aged about 20 years without consent and had thereby committed offences punishable under Sections 312 and 313 of the Indian Penal Code.

Savitaben Chanabhai-PW3 was examined at exh.10. She stated that one Suresh who was residing in her village had promised to marry her. They had physical relations resulting into the deponent getting pregnant. After about two months, she informed her maternal uncle and aunt. They had taken her to Vaghbari where the accused whom the witness identified before the Court had given an injection. She was made to lie down and a stick was inserted (in her private part) for about one hour. She had pain in the abdomen. After about six days she had to be taken to a Government hospital. She stayed there for two days. She was shifted to Chikkli where also she was treated. The insertion of the stick was against her wish. In the cross examination, however, she stated that Suresh after having promised to get married had disappeared and she was two months pregnant. She therefore, got worried and decided to abortion. She had therefore, told her aunt to take hr to the Doctor. She specifically stated that she had consented to such abortion. She stated that fetus was of two months at that time.

Maternal uncle of Savitaben, Jasubhai Lahanubhai-PW4 was examined at exh.12. He stated that his niece was unmarried. She however, was pregnant. He therefore, met the accused, who told her to come next day. The witness therefore, went to the Doctor with his wife and Savita. He took Savita inside a room. The witness and his wife stayed outside. After an hour the Doctor came out with Savita and demanded them Rs. 250/-. Thereafter, Savita had severe pain. She had to be taken to Government Hospital for treatment.

4.1 In the cross examination, he stated that mother of Sarita had told him that abortion should be done.

Maternal aunt of Savitaben, Gangaben Jasubhai-PW5 was examined at exh. 13. Sh also gave similar account of the version.

Mother of Savitaben, Maniben Chanabhai-PW6 was examined at exh.14. She stated that Savita''s uncle and aunt had taken her to hospital. She had not gone with them. The fetus was two month old at that time.

Dr. Girishbhai Vallabhbhai Patel-PW1 was examined at exh.5. At the relevant time, he was the Medical Officer at Limjar. On 3.4.1988, Savita was brought to him for the complain of stomach pain. He had treated the patient and referred her to Chikli hospital for further treatment.

Dr. Kanubhai Vishrambhai Parmar-PW2(exh.7) was the medical officer at Chikkli Community Health Centre. He stated that on 6.4.1988, Savita was brought to his hospital in ambulance. Her condition was not good. She had high temperature. There was septic in her stomach. She had to be operated and two litres of septic had to be extracted. There was perforation in her uterus. The internal membrane had also got damaged and had to be removed and had to be removed. Perforation had to be stitched. She had to be treated as indoor patient for 22 days. He was of the opinion that damage to the uterus was caused by insertion of a metal rod or some such hard rubber object. He further stated that for carrying out abortion only sterilized instruments are being used. Unqualified person cannot carry out abortion. Training is necessary for carrying out abortion. From examination of Savita it was apparent that some unqualified person had carried out abortion.

8.1 In the cross examination, he stated that though the patient did mention that she was aborted, did not mention the person who had carried out abortion.

From the above evidence, prosecution sought to sustain the charge.

At the outset, it may be noted that though in the charge, offence punishable u/s 313 of the Indian Penal Code for causing miscarriage without women''s consent was also included, there was no evidence in this regard. From the outset the witnesses clearly stated that on account of unwanted pregnancy, unmarried lady whose lover had disappeared, the family had decided to get fetus aborted. The girl as well as her family members thus wanted the child aborted. In fact, the learned Judge has also not found the appellant guilty of offence punishable u/s 313 of the Indian Penal Code.

One more aspect of the matter which needs clarification at this stage is that admittedly the fetus was about two months old when the abortion took place. Learned Judge recorded that a women is said to be quick with child after five months of pregnancy. This also appears to be borne out from the medical jurisprudence. Learned advocate Shri Pardiwala for the appellant, relied on Modi''s Jurisprudence wherein while describing the term ''quick with child'', it is stated that quickening is the name applied to peculiar sensation experienced by a women about 4th or 5th month of pregnancy. At the first perception of "Squickening" or fetus movement by mother, she is said to be ''quick with child'' and it occurs in between 18 to 20 weeks.

In the present case, therefore, admittedly the fetus of two month old lady cannot be said to be quick with child. Section 312 of the Indian Penal Code provides for punishment for causing miscarriage in following terms:

Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Case of the present appellant even if proved would thus fall in the first part for which punishment prescribed is imprisonment of either description for a term which may extend to three years or fine or with both and not the second part where higher punishment of imprisonment for seven years and fine is prescribed when it is found that at the time of miscarriage, the woman was quick with child. Learned Judge having noted that the fetus was two months old and that quickening occurs after five months of pregnancy, held that accused was guilty of offence covered by the second part of Section 312 of the Indian Penal Code. To this extent to my mind, there was apparent error.

With respect to the conviction of the appellant however, I see no error whatsoever. There was cogent reliable evidence to record to establish that the appellant had caused miscarriage of-course with the consent of the woman. His conduct however, gets compounded in view of the fact that he was neither a qualified Doctor nor apparently took basic precautions while aborting the fetus. This led to serious complications for the lady. She had to be treated as an indoor patient for nearly 22 days. Her uterus had perforation. She also had other internal injuries. Apparently, the method used for abortion was extremely crude.

Evidence of Savitaben-PW3 and her maternal uncle and aunt i.e. PW-4 and PW-5 respectively clearly established the manner in which the appellant had carried out miscarriage. Quite apart from such miscarriage by itself being an offence, the appellant did not even have the basic qualification to carry out such abortion. The fact that he committed said offence therefore is in no doubt.

Learned Judge however, convicted him to rigorous imprisonment of three yeas and also imposed fine. As noted, learned Judge was of the opinion that the accused had committed offence punishable under the second part of Section 312 of the Indian Penal Code for which the punishment prescribed is of maximum term of seven years and fine. I however, find that woman was not quick with child at the time when abortion was carried out. He was therefore, guilty of causing miscarriage for which punishment as per the first part of Section 312 of the Indian Penal Code for which sentence prescribed is of imprisonment of either description which may extend to three years or with fine. Awarding maximum punishment for the said offence would not be justified in absence of any proof of his involvement in such similar cases in the past or some other extenuating circumstances.

Nevertheless, the appellant must be awarded some sentence and cannot be given total suspended sentence by giving benefit of probation contrary to what is urged by the learned advocate for the appellant. This is so because the appellant was totally unqualified person using extremely crude methods, carried out abortion which by itself is offence punishable u/s 312 of the Indian Penal Code. In the process, he caused serious damage to the lady and perhaps even endangered her life.

Under the circumstances, while upholding the conviction of the appellant u/s 312 of the Indian Penal Code, his sentence is reduced to six months of rigorous imprisonment. Order for payment of fine remains unaltered. Appeal is disposed of in above terms. Bail bond stands cancelled. The appellant shall have time to surrender upto 30.6.2008.