Important Point
Where in an offence u\s 313 of IPC during pendency of case complainant married appellant and both of them were living as husband and wife then sentence was reduced to period already undergone in the interest of Justice.

JUDGMENT

G. P. MATHUR, J.—

1.Leave granted.

2.This appeal, by special leave, has been preferred against the judgment and order dated 2.1.2007 of Gauhati High Court by which the appeal preferred by the appellants was disposed of with the modification that the sentence of five years R.I. and fine of Rs.7,000/- imposed upon each of the appellants under Section 313 read with Section 34 IPC by the learned Additional Sessions Judge, Kokrajhar, was reduced to three years R.I. and fine of Rs.5,000/-.

3.The case of the prosecution, in brief, is that the appellant Hasi Mohan Barman was having love affair with the first informant PW-1 Haleswari Barman, which subsequently developed into physical relationship and as a result thereof PW-1 became pregnant. The villagers put pressure upon Hasi Mohan Barman to marry PW-1 which he declined. He asked PW-1 to abort the child which she refused to do. Thereafter, in the night of the incident Hasi Mohan Barman took PW-1 Haleswari Barman to the pharmacy of co-accused Abinash Biswas, who administered certain injection whereupon PW-1 became unconscious and the child was aborted. She was administered Saline and the appellant Hasi Mohan Barman kept her at ‘Pampghar’ for about nine days wherefrom she was taken to her parents house. After few days PW-1 lodged an FIR against both the appellants. The police, after investigation, submitted charge-sheet only against Hasi Mohan Barman but subsequently co-accused Abinash Biswas was also summoned under Section 319 Cr.P.C. to face the trial.

4.In the trial PW-1 Haleswari Barman deposed that on the promise that the appellant No. 1 will marry her they entered into sexual relationship and as a result whereof she became pregnant. Thereafter, the appellant No. 1 put pressure upon her to abort the child but she did not agree. On the night of occurrence the appellant No. 1 along with his brother forcibly took her to the pharmacy of co-accused Abinash Biswas and she was forcibly administered an injection due to which she became unconscious. When she regained consciousness she saw that saline was being administered to her. After some time on the asking of appellant No. 1 co-accused Abinash Biswas administered another injection due to which she became unconscious. When she regained consciousness she found that she had lost her pregnancy and then she was taken to the house of her parents.

5.PW-4 Dr. Dilip Bhowmik, an Ayurvedic Physician, has deposed that the appellant Hasi Mohan Barman had brought PW-1 to his clinic and on examination he had found that PW-1 was running pregnancy of 4-5 months. As she had some problem he gave some medicine to her. PW-3 Dr. Rezaul Karim examined PW-1 on 22.3.1995, i.e., more than one month after the abortion and found as follows :

“There was active slight bleeding as per vagina. For confirmation D & E (Dilatation and Evacuation) done and found placental parts inside the uterine cavity which is a sign of incomplete abortion i.e. she was pregnant.”

6.The High Court, after a thorough examination of the evidence, has recorded a finding that PW-1 was pregnant through the appellant Hasi Mohan Barman who wanted PW-1 to abort the child. As PW1 declined to do so, Hasi Mohan Barman with the help of Abinash Biswas caused miscarriage of the pregnancy without the consent of PW-1. The High Court accordingly held that it was established beyond any shadow of doubt that both the appellants had committed an offence under Section 313 IPC. The High Court thus maintained the conviction but reduced the sentence from seven years R.I. and a fine of Rs.7,000/- to three years R.I. and a fine of Rs. 5,000/- of both the appellants.

7.It appears that during the pendency of the case the complainant Haleswari Barman married appellant No. 1 Hasi Mohan Barman and both of them are living as husband and wife. She filed an affidavit that she had entered into a compromise and wanted the criminal case pending against her husband Hasi Mohan Barman and the appellant No. 2 Abinash Biswas to