Surendra Chauhan VS State of Madhay Pradesh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000(2) Crimes 117 (SC)
Supreme Court of India
(From Madhya Pradesh High Court)
D.P. Wadhwa & Ruma Pal, JJ.
Surendra Chauhan —Appellant
versus
State of M.P. —Respondent
Criminal Appeal No. 342 of 1998
Decided on 27-3-2000
Counsel for the Parties :
For the Appellant : Ranjit Kumar and Ms. Anu Mohla, Avocates.
For the Respondent : Ms. Kamakshi S. Mehlwal, Ms. V. Dias and Uma Nath Singh, Advocates.

Headnote:Indian Penal Code, 1860—Section 314/34—Causing death with intent to cause miscarriage of a woman—Appellant accused had illicit relation with deceased—Deceased became 3 months’ pregnant—Appellant taking her to co-accused a Electro Homoeopathy Doctor for abortion—Deceased died while abortion was being done—Conviction by trial Court of both Doctor and appellant under Section 314/34—High Court upholding conviction—Appellant’s case that he had no intention to cause death of deceased and infact he did not have illicit relation—Appellant telling lie—Co-accused was not competent to terminate pregnancy—Concurrent finding of lower Courts that act of miscarriage of deceased in furtherence of common intention of appellant—Appellant rightly convicted under Section 314/34 IPC.
       Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case. (Para 9)
       There is concurrent finding that Sharma with intent to cause the miscarriage of Alpana with child by his act caused her death and the act was done in furtherance of the common intention of Chauhan. He has thus been rightly convicted under Section 314/34 IPC. Sharma was certainly not competent to terminate the pregnancy of Alpana nor his clinic had the approval of the Government. Even basic facilities for abortion were not available in his clinic. Chauhan took Alpana to the clinic of Sharma with intent to cause her miscarriage and then her death was caused by Sharma while causing abortion, which act was done by Sharma in furtherance of the common intention of both Sharma and Chauhan. There is no escape from the conclusion that Chauhan had been rightly convicted under Section 314/34 IPC. (Paras 10 and 13)

Judgment

D.P. Wadhwa, J.—Appellant Surendra Chauhan (Chauhan) has been convicted for an offence under Section 314/34 Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for seven years and a find of Rs. 10,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of two years. Chauhan and Dr. Ravindra Kumar Sharma (Sharma) were tried together. While Sharma was tried under Section 314 IPC Chauhan was tried under Section 314/34 IPC. Sharma had also been convicted under Section 314 IPC and similarly sentenced as Chauhan by the trial Court. Both filed appeal in the Madhya Pradesh High Court. Their conviction and sentence were upheld and their appeal dismissed by judgment dated January 7, 1998. Both sought leave to appeal from this Court under Article 136 of the Constitution against the judgment of the High Court Sharma was refused leave. Chauhan was granted leave and that is how the matter is now before us.

2. Alpana, a young girl of 24 years of age, was living with her mother Lalita Soni, a teacher, along with her younger sister 18 years of age. Alpana was not married. On March 23, 1993 Alpana told her mother that she was feeling unwell and would herself go to the hospital. Next day in the morning when her mother was sitting in ‘pooja’, Alpana told her that she was going to the hospital. She also told her mother that she along with Chauhan would be going to Sharma for her treatment. As noted above, Sharma stands convicted and sentenced. Same day at about 2 or 3 p.m. while Lalita was resting in her home both Sharma and Chauhan came to her and told her that Alpana was in a serious condition. Sharma told Alpana was under treatment in his hopital. Chauhan said that condition of Alpana was serious. Lalita told them that her husband was not in the house and when he would come they would both go to the hospital. Both the accused i.e., Sharma and Chauhan said that the condition of Alpana was very serious and insisted Lalita to accompany them. On this Lalita immediately went along with them. In the hospital of Sharma she saw her daughter Alpana lying on the table inside the clinic. Lalita found that her daughter was dead. She asked what was the reason of the treatment and death of her daughter. On that Chauhan told her that he was having illicit relations with Alpana as a result of which she was carrying pregnancy of two to three months. He also told Lalita that he got Alpana admitted in the hospital for the abortion and during the treatment the condition of Alpana became serious causing her death. Lalita then went to inform her husband Mohan Lal and again went to the hospital of Sharma by which time police had also arrived and there was crowd standing outside the hospital.

3. Dr. D.C. Jain is the professor of Forensic Medicines in Medical College, Raipur. In his deposition he said that in his opinion Alpana was carrying the pregnancy of three months. He did not find any injury in uterus or vagina. He said it was possible that the abortion was caused without applying the anaesthesia to the deceased causing her death or her death could be due to fear. He found that the uterus was enlarged containing blood clots. He gave his opinion as under:—

“Deceased was pregnant foetus should be in uterus. Foetus age is 3 months. No injury to uterus or vagina detrected. It is possible that the deceased died of vagal inhibition due to the effect of abortion without anaesthesia or due to fear.”

In his cross-examination he said that shock also takes place during the fear. Dr. H.K. Josh performed post mortem on the dead body of Alpana. According to him cause of death was shock.

4. There have been concurrent findings that Chauhan was having illicit relations with Alpana with the result that she became pregnant. He accompanied her to the clinic of Sharma for her abortion. It has also come on record that Sharma was having degree of Bachelor of Medicines in Electro Homoeopathy from the Board of Elect

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Cases Referred (3)