TMI Blog2000 (3) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... arma was refused leave. Chauhan was granted leave and that is how the matter is now before us. 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 hospital. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause (h) of section 2 of the Indian Medical Council Act, 1956, whose name has been entered in a State Medical Register and who has any experience or training in gynaecology and obstetrics. Section 314 IPC is as under: - 314. Death caused by act done with intent to cause miscarriage. Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; if act done without woman's consent and if the act is done without the consent of the woman, shall be punished either with imprisonment for life, or with the punishment above mentioned. Explanation. It is not essential to this offence that the offender should know that the act is likely to cause death. From the record it is apparent that Sharma and Chauhan had intent to cause miscarriage of Alpana, who was pregnant, and death was caused to Alpana by Sharma while conducting abortion. Two questions have been raised before us for our consideration: (1) It was the extra judicial confession of Chau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence. He gave the answer as under: - I am a driver. In connection with my work I use to visit Kusumkasa. So I know the parents of the deceased. On the day of incident I was going to motor stand. Then I saw Dr. Sharma standing outside his hospital. He called me there and took me inside the hospital where the deceased was lying and asked me whether I recognised her. I said that I knew her. Then we both went to Kusumkasa inform the mother of the deceased by one scooter and after informing brought her to the hospital. At that time there was lot of crowd and police was also present. Mother of the deceased found that her daughter was dead and she along with the police people went to the police station. Prosecution version that I had illicit relations with the deceased is a wrong version. This is also not true that I took the deceased to the hospital of Dr. Sharma for abortion. This is also not true that she came to my house when she visited Rajhara (where clinic of Sharma is situated). Witnesses speak lies to get the persons involved. We may also note the defence set up by Sharma. In answer to the question if he wanted to say something he sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. {Ramaswami Ayhangar Ors. vs. State of Tamil Nadu [(1976) 3 SCC 779]}. 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 intention can develop even during the course of an occurrence. {Rajesh Govind Jagesha vs. State of Maharashtra [(1999) 8 SCC 428]}. 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 ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant women's actual or reasonable forseeable environment. (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman. Under Section 4 of the Act termination of pregnancy shall be made in accordance with the Act and at a hospital established or maintained by the Government or a place approved by the Government for the purposes of the Act. Rule 4 of the Medical Termination of Pregnancy Rules, 1975, framed under the Act, provides as to how a place under Section 4 could be approved and how inspection etc. of such place is to be carried out. A place shall not be approved under Section 4: (i) unless the Government is satisfied that termination of pregnancies may be done therein under safe and hygienic conditions; and (ii) unless the following facilities are pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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