The main legal point established is that the accused were guilty of causing miscarriage under Section 313 IPC, based on the evidence of pregnancy and the victim's testimony.

P.G. Agarwal, J.

1. Heard Mr. Z. Kamar, learned Counsel for the petitioner and Mr. K. Munir, learned Public Prosecutor, Assam.

2. In Sessions Case No. 10/96 two accused appellants Hasi Mohan Barman and Abinash Biswas were tried by the learned Additional Sessions Judge, Kokrajhar (FTC) and on conclusion of trial both the accused were convicted under Section 313 IPC read with Section 34 IPC and sentenced to undergo imprisonment for 5 years and to pay fine of Rs. 7000/- each, in default, to undergo further imprisonment for one year and hence the present appeal.

3. Prosecution case, in brief, is that accused Hasi Mohan had love affair with the informant Haleswari Barman (PW1) which extended to physical relationship and as a result of which, the PW-1 became pregnant. Thereafter, the villagers forced Hasi Mohan to marry PW-1. But, after some time, the husband Hasi Mohan asked the PW-1 to abort the child, which PW-1 refused to do. Thereafter, on the night of occurrence, the accused Hasi Mohan forcibly took her to the pharmacy of the co-accused Abinash Biswas, who administered certain injection and whereupon the PW-1 became unconscious and the child was aborted. She was administered saline etc. and the accused Hasi Mohan kept her at 'Pampghar' for about 9 days wherefrom she was taken to her parents house. Subsequently, she filed complaint that her abortion has been caused without her consent. The Doctor examined the victim and the police submitted charge sheet. Initially, the case was charge sheeted against the accused Hasi Mohan Roy @ Barman only and the case was committed to the Court of Sessions. Thereafter, on the prayer of the Public Prosecutor, the learned trial Court summoned accused appellant Abinash Biswas under Section 319 Cr.P.C. vide order dated 07.04.1997 and thereafter the trial Court proceeded against both the accused persons.

4. Learned Counsel for the appellant has challenged the order of conviction of Abinash Biswas on the ground that Abinash has been arrayed as accused in violation of the provisions of Section 319 Cr.P.C. as he was summoned as accused under Section 319 Cr.P.C. solely on the basis of the police investigation itself and without recording the evidence of the witnesses.

5. It may be mentioned here that the present case arose out of a complaint filed by the informant PW-1, wherein the name of the accused Abinash Biswas was mentioned as accused. The said complaint was sent to police, who after investigation submitted charge sheet against accused Hasimohan only. The learned Public Prosecutor therefore submitted that there is material against the accused Abinash Biswas and accordingly Abinash Biswas was summoned under Section 319 Cr.P.C.

6. During the trial, after certain witnesses were examined, accused Abinash Biswas raised an objection regarding arraying him as an accused. The learned trial Court vide order dated 07.09.98 held that the mistake, if any, in compliance with the provisions of Section 319 Cr.P.C. cannot be corrected by the Court itself as it has no power to review. Further, the accused did not file any revision against the said order whereby the accused Abinash Biswas was summoned. In the order dated 07.09.1998, the Court also held that from the evidence of PW-1 it appears that there are materials to suggest involvement of Abinash Biswas in the above crime. We thus find that neither the order dated 07.04.97 nor the order dated 07.09.98 was challenged by the appellant Abinash Biswas. On perusal of the above two orders, we find that although the order dated 07.04.97 was passed prior to the recording of evidence, as is required under Section 319 Cr.P.C. the subsequent order dated 07.09.1998 was passed after the statements of witnesses were recorded and there is specific mention in the order that from the evidence of PW-1 also involvement of accused Abinash Biswas is disclosed.

7. In the case of State of Kamataka v. Kuppuswami Gownder 1987 CriLJ 1075, the Apex Court held:

In this view of the matt