Conviction under IPC for abortion requires credible evidence; benefits of Probation of Offenders Act granted to senior citizen first-time offenders based on societal roles.

JUDGMENT :

SIBO SANKAR MISHRA, J.

1. The present Criminal Appeal is directed against the judgment and order dated 07.11.1998 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No.218 of 1996 arising out of G.R. Case No.527 of 1994 pertaining to Lephripada P.S. Case No.14 of 1994. The learned Sessions Court, while acquitting all the three appellants of the charges under Section 3(1)(x) of the SC & ST (PoA) Act, has found the appellants guilty for the offence punishable under Part I of Section 312 of the IPC. For the said count, the appellants have been awarded Rigorous Imprisonment for two years.

2. The appellants, being aggrieved by the said judgment of conviction and the order of sentence, have approached this Court by filing a joint appeal.

3. Heard Mr. Amitav Tripathy, learned counsel for the appellants and Mr. P.K. Sahoo, learned Additional Standing Counsel appearing on behalf of the Respondent-State.

4. As preface, the prosecution story in terse and brief are enumerated hereunder:

On 02.12.1994, one Sukanti Kishan (P.W.4) an unmarried Scheduled Tribe girl, aged about 19 years, was admitted as an outpatient in the Sundargarh hospital for treatment, as she had vomiting tendency accompanied with fever. Subsequently, she was referred to the Medicine Specialist and the Medicine Specialist referred her to the Surgery Specialist. The Surgery Specialist opined it to be a case of Septic Abortion with peritonitis. Thereafter, the patient was referred to the Gynecology Specialist (P.W.11). The said doctor (P.W.11), during the course of treatment came to know from the patient (P.W.4) that the victim had an illicit sexual relationship with accused Harish Chandra Patel (Appellant No.3) and subsequently she became pregnant. After knowing about her pregnancy, she approached the mediator (Appellant No.1) Padma Kishan and the Mediator gave her some tablets to terminate the pregnancy, but the same did not work. Thereafter, the victim contacted the accused-appellant Harish Chandra to take steps to terminate her pregnancy. On being requested, the accused-appellant Harish Chandra contacted the accused-appellant Pradeep Kumar Patel, a local quack and on 30.11.1994, the victim went to Raidiha jungle with a view to terminate her pregnancy. Then in the jungle, the local quack accused-appellant Pradeep Kumar Patel in presence of the accused- appellant Harish Chandra Patel inserted a stick inside the vaginal canal of the victim (P.W.4) to terminate her pregnancy and left the victim in jungle and told her to go to her house.

5. On the basis of the aforementioned incident happened on 30.11.1994, Lephripada P.S. Case No.14 of 1994 under Section 313 of the IPC read with Section 3(1)(x) of the SC & ST (PoA) Act came to be registered on 04.12.1994.

6. After the charges were framed against the appellants for the offence as mentioned above, they were put to trial.

7. The prosecution examined as many as 11 witnesses to establish its case, whereas the defence took a stance of denial and did not opt for leading the evidence. By analyzing the evidence brought on record and appreciating the same, the learned trial Court convicted the appellants for the offence punishable under Section 312 of the IPC, however, acquitted them for the offence punishable under Section 3(1)(x) of the SC & ST (PoA) Act. Accordingly, the sentences were awarded.

8. Mr. Tripathy, learned counsel for the appellants has submitted that the entire conviction is based on the evidence of only one witness namely P.W.11, the doctor. In the present case, the victim, her father, her sisters and other relatives have turned hostile.