The court ruled that evidence did not establish medical negligence by the appellant, who acted in good faith under the MTP Act, leading to acquittal under Section 312 of IPC while being previously acquitted of negligence charges.

JUDGMENT :

GITA GOPI, J.

1. Sole accused of Sessions Case no.146 of 2002, decided by the Joint District Judge and Additional Sessions Judge, Fast Track Court, Bharuch on 31.5.2004 is the appellant, found guilty for the offence under Section 312 of the INDIAN PENAL CODE , 1860 (IPC) who was granted benefit of probation under Section 360 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and Section 4 of the Probation of Offenders Act, 1958.

2. The trial against the accused was under Sections 312 , 314 and 304A of the IPC. The Trial Court acquitted the accused for the charge under Sections 314 and 304A of the IPC finding him guilty under Section 312 of the IPC. Section 312 of IPC is reproduced hereinbelow to read along with the punitive provision.

“312. Causing miscarriage.— 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.”

3. The FIR being CR no.I-12 of 2000 was filed at Jambusar Police Station under Sections 3 12 , 314 and 304A of the IPC by the Police Head Constable – Hafizkhan Ismailkhan on 7.3.2000. The deceased – Rukhsana had come for termination of pregnancy, which led to complications and she breathed last in the hospital at Vadodara on 11.1.2000.

4. Learned advocate Mr. Kirtidev R. Dave has submitted that the appellant is a qualified gynecologist. On 27.11.1999, one female patient under a false name came for treatment. The history given was of pregnancy with an attempt to remove the foetus by a quack. Mr. Dave submitted that the condition of the deceased was not good and continuation of pregnancy involved the risk of life of the pregnant woman and therefore, under the consent of PW3–Yakub Valikhan, who introduced himself as the husband of the deceased, the appellant as a gynecologist with the necessary consent of deceased, admitted her in his hospital and when the case of the appellant was found complicated, the appellant summoned Dr. Mayank Virendrabhai Parikh – PW2 for his opinion, and it was found that the deceased was in need of more treatment and therefore, she was referred to SSG Hospital at Vadodara. After getting treatment for about a month at SSG Hospital, the patient an unmarried teacher after about 10-12 days of treatment at a private clinic in Vadodara, survived till 11.1.2000. Mr. Dave submitted that when no medical negligence of the Doctor was found and when he was acquitted under Section 304A of the IPC and also under Section 314 of the IPC, then, no condition can sustain under Section 312 of the IPC, which is under the heading of causing miscarriage. Mr. Dave, referring to Exh.18, submitted that the appellant is a M.D. (Gynecologist) and FRSH (London) and has submitted that Shreeji Hospital and Maternity Home had recognized MTP Center under Code no.09P. Advocate Mr. Dave submitted that the appellant is a qualified Doctor and also had his practice from London and stated that it is not a case of any illegal medical termination. Form-I and Form-II as per the regulations were taken on 27.11.1999, under Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as “MTP Act”). Mr. Dave su