APPELLANT {m Jai§> M§ Kashyap (Mahendra Singh) :3’0 M :Viui'hai'am 1/ naSiip‘ai’}, L. Egéu A abOLii. s 3. r7 ‘y‘éa.w. at presem resident ‘Sahavak Vikas V§star Adhikari, Lohar1d§guda, Bis‘kricf Ba a 3w, permaneni resident of Viiiage Mahua‘, D$ Charama; Di$trict Kaaker (CG), Verws $tate of Chhgtti$garm Through The -..1..- -_._g,l.. RESPONDENT Dismw: Magistrate Bamar at Jugumpur (cg). APPEAL UNDER SECTION 37mm GF CODE OF CRIMWAL PROCEBURE {Sinule Bench; Hoa’bie Mr. T‘P. Shanna. JJ Present: Shri Gautam Khetrapali Advocate for the apneEEant‘ Shi’i ‘v :l u .J Temm, I T3 .- I l £ Ad. (‘L A. f‘ié'l iaW'jEi’ :Gi' we ataté. ORAL JUBGMENT (Passed rm 11‘“ ef Au H: (i By this appaai, the appellant has chai£e¢sged the {egality and pregariety of the Qudgment dated 313,2(305 passed by the. First Additiana! $ession$ Judgei Baetar at Jagdaipur: in Sessio.s Trial Nat 2&41134 by which the Ieemeef First Additiongl Sessiens Judge aftet hoiding the appellant guiity for cemmission of offence punishabie under Sections 37$ am: 31.3 of the Indian Panel. Qodei convicted and sentenced him to underge tigerous imprisonment for 7 years and to pay a tine of Rs 5QQI—3 in deiauit of payment of fine to further undergo rigemus imprisonment fer one menth under eection 376. of the indian Pena! Code and rigemus imgrieonment for 7 years and to pay a tine of Rs 500i—, in default of payment of tine; to further undergo rigerous. imptieenment for 1. month under seetien 313 of the lndian Penal {Jade Beth the sentences were ordered ta run soncurrantlyr mew} HIGH COURT OF CHHATHSGARH AT BLASPUR, Crimina§ Mama? New 321 cf 2%5 b 2h ConViCtion is challenged on the ground that prosecutrix is a consenting partyk lntereourse has not been committed by the appellant with prosecutrix—Kamla Bai (Phil-2) against her wiil and eensent and 10 to 12 weeks fetus was found nSde the uterus end to save her life, with consent of the prosecutrix abortion has heen caused by dontor but the triet court has not consideredlthis fact and ’ canvinted and $entanced the appeiiant as aforementioned and thereby committed illegality, 3, Ca$sa of :he prasecution‘ in brief; is that PW—2 Kamla Bai was working in the hause 0f The appeliant for 2—3 years imiar to iodging FIR dated 16,5M2QD4o Under tho pmmioe of mandago the appellan: oommitted intercourse againot her wil! and consent and used to commit intemauise with hero She conceived and thereafteri appeiiant and pro$ecutrix went to Jagdalpur for medical cheok up where appellant without consent cf the p.osecutrix caused miscarriage with the help of the doctor; They returned ta their home theneppeilaht refueed to keep the prosecutrix as his wife, Prosecutrix complained the marker to the $uperintendent of Police; Bastar Vide Ex ’9 She was examined by Dr. $mtn S, Thakur (PW-6) who opined vide ExPl5 their she ie habitual to intercourse and ehe was pregnant as a result of intereoursei but she hes not given any opinion relating to miscarriage on terminatien of the pregnancy: «W 4r Aiier completion of investigation, charge sheet was filed in the Court of Chief JUdioial Magistrates Jagdaipnr who in turn committed the ease to the Court of $essions Judge} Jagdaipur from where First Additional Sessions Judge, Bastar at .lagdaipnr received the same on transfer for trials 5o in order to prove the guilt of the apheliant/acoused‘ the prosecution has examined as many as 'lt witnesses Statement of the accused! appellant was recorded under Seotien 313 of the Gode of Criminal Procedurei 1973i in whioh he denied the material appearing against him" He stated that he is innocent and has been falsely implicated in the crime in question. The appellant has examined defence witness $mt. Dharamvati (DW-1) who has stated that the appellant and prosecutrix were restding as husband and wife and as a result of marital relation, she conceivedi but she does not want to give birth to the child, Thereafteri she went to Jagdalpur and terminated her pregnancy with the help of doctors 6t Learned First Additional $essions Judge after hearing counsel for the respective parties, convicted and sentenced the accusediappellant as aforem ention ed, 7t l have heard Shri Gautam Khetrapal, counsel for the appellant and Shri Vinod Tekam. Penal lawyer for the State and perused the record of the trial court. 8. it i$ arguad an behalf 0f the appellant that the agpellant and pro$ecutrix PW-Z Kama Bat whc is aged aimut 2Q yeam, were living a§ hu5band and wife; She conceived and theraafter, they went to Dr" S‘ Bansai (PW-8) for examinaionn She found two fetus cf 10 ta 12 week$ inside the uterus‘ Same were taken. out Proseeutrix is a consenting party and alleged miecarriage hae been done with the consent of the prosecutrix and to save her life, 9, On the ether hand; judgment is supported on behalf af the reepondent: 10‘ ln the present case; termination of pregnancy/miscarriage and intercourse by the appellant with prosecutrix is not dieputed Age of the proeeoutrixIKamie Bai x (PW—2) is aeaertained by the Court and by the medical evidenoe ae 21 years; The only question for consideration, in the inStant case, is whether the appellant has committed interoourse with prosecutrix without her will and consent and he has caused miscarriage without her consent: PW-2 Kamla Bai who is prosecutrix has stated that she was working in the house of the appellant. $he used to go to his house daily to work and on the promise of marriage) appeliant used to intercourse with her and as a. result of intercourse she conceived and was pregnant about 8 months Thereafter, appellant and prosecutrix went to Jagdaipur for treatment; 1.1“ Dr: S Bansai (PW-8) has examined her whom she stated that she wiil not terminate her pregnancy, but after discussion of the appeliant With the doctor} the doctor took her inside the hospital and after giving some medicine and. injunctions the doctor terminated her pregnancy and caused miscarriage. The appellant took her in his house and after 2—3 daysi she refused to keep her with him Thereafter, she reported the matter to the police station-Lohandigunda, in her cross-examination: she has specifically admitted that she iive with the appellant for 2-3 years as husband and wife and they went to Jagdalpur for termination of her pregnancy by bus: PW-S Dr: Sr Bansal has stated that prosecutrix along with her husband came to her and complaint about the pregnancyt§he examined and found that there was pregnancy about 18 weeks and two fetus were inside and paipitation of the fetus was not audible Prosecutrix was complaining paint On the internal examinationg she found that mouth of uterus was open and that was at the stage of abortion, $he treated and takes out two fetus of 10 to 12 weeks and second day she discharged the prosecutrix, $he has also stated that she has recorded the case of the abortion \Jide ExPJ'i, in her cross-examinationj she has admitted that condition of the fetus was not goods Prosecutrix has consented for termination of pregnancy and on the basis of consent and condition of the complainant/prosecutrix, she terminated the pregnancy ProsecutrixlKamia Bai has ey used to live with the appeilam‘, as hu$band and wife: r for iermination of pregaancy, Doctnr has examined her and specifmally admitted that th They went to Jagda!pu stated that two fetu$ if not requirgd in any other case‘ sw- > _€J I, A ”T.p.sHARMA~”* Judge Bl- q J_.__ i