Holding

The Supreme Court upheld Chauhan’s conviction under Section 314/34 IPC, finding that his extra‑judicial confession was admissible and that he shared a common intention with the unqualified practitioner to cause the miscarriage, thereby justifying conviction.

Summary

Surendra Chauhan, who had an illicit relationship with a 24‑year‑old woman named Alpana, took her to the clinic of Dr. Ravindra Sharma, an unqualified electro‑homeopathic practitioner, for an abortion. Alpana died during the procedure, and Chauhan later confessed to her mother that he had arranged the abortion. The trial court convicted Chauhan under Section 314 in conjunction with Section 34 of the IPC, and the High Court upheld the conviction. On appeal, the Supreme Court held that the extra‑judicial confession was admissible, that Chauhan shared a common intention with Sharma to cause a miscarriage, and that Sharma’s lack of recognised medical qualifications made the act unlawful. The Court affirmed Chauhan’s conviction but reduced his imprisonment to 18 months, increased the fine to Rs. 25,000 payable to the victim’s mother, and ordered additional imprisonment for default of fine. The appeal was therefore partly allowed.

Issues considered

The admissibility of an extra‑judicial confession made by the accused to the victim's mother as sole basis for conviction.
Whether the accused shared a common intention with the practitioner to cause the miscarriage and consequent death, invoking Section 34 IPC.
Whether the provisions of the Medical Termination of Pregnancy Act, 1971, render the IPC provisions on miscarriage inapplicable in this case.

Legislation cited

Indian Evidence Act, 1872s. 24
Indian Medical Council Act, 1956s. 2
Indian Penal Code, 1860s. 314, s. 34
Medical Termination of Pregnancy Act, 1971s. 3

Subjects

Section 314 IPCSection 34 IPCcommon intentionextra‑judicial confessionillegal abortionMedical Termination of Pregnancy ActArticle 136Supreme Courtcriminal convictionsentence reduction

Judgment

SURENDRA CHAUHAN A
v.
STATE OF M.P:

MARCH 27, 2000

[D.P. WADHWA AND MRS. RUMA PAL, JJ.] B

Indian Penal Code, 1860 :

S.314134-Common intention-Death caused while causing miscarriage
of victim with child-Accused having illicit relations with victim-Three months
pregnancy-Accused taking victim to clinic of an Electro Homoeopathy prac-
c
titioner not competent to terminate pregnancy with intent to cause miscarriage
of victim-Victim died in the clinic while being aborted-Confession made by
accused to mother of victim-Held, accused was rightly convicted uls. 3141
34-Extra-judicial confe5·sion of accused made to mother of victim being quite
natural, conviction based thereon upheld-Sentence reduced to one and ha(f D
years R.1.-Fine enhanced-Evidence Act, 1872-S.24_.;_Extra-judicial confes-
sion-Indian Medical Counsel Act, 1958-S.2-Medical Termination of Preg-
nancy Act, I971-S.3.

Constitution of India :
E
Article 136-Jurisdiction of Supreme Court-Explained.

The appellant and another person, namely 'S' an Electro Homoeopa-
thy practitioner, were prosecuted under s.314 IPC. The prosecution case,
inter alia, was that the appellant had illicit relations with the victim. She
. was carrying pregnancy of three months. The appellant took her to 'S' for F
terminating the pregnancy. The victim died in the clinic of 'S' while she was
being aborted. The appellant was said to have confessed to the mother of
the victim. The trial court convicted 'S' under s.314 IPC and the appellant
under s.314/34 IPC. Both were sentenced to undergo rigorous imprison-
ment for seven years and a fine of Rs. 10,000 each. The appeals filed by G
them were dismissed by the High Court. They then filed petitions under
Article 136 of the Constitution. Only the appellant was granted the leave.

It was contended for the appellant that the extra-judicial confession
could not be solely made the basis for conviction; and that the appellant did
not share any common intention with 'S' to cause the death of the victim. H
515
516 SUPREME COURT REPORTS (2000] 2 S.C.R.
A Dismissing the appeal, this Court

HELD : 1.1. There is no reason not to take into consideration the
extra judicial confession of the appellant ma~e to mother of the deceased
to base his conviction. It was quite natural in the circumstances. It was the
appellant who took the deceased to the clinic of 'S' who was not a qualified
B doctor to cause abortion. [520-E-F]

1.2. There have been concurrent findings that the appellant was
having illicit relations with the deceased with the result that she became
pregnant. He accompanied her to the clinic of 'S' for her abortion. It has
also come on record that 'S' was not a medical practitioner. He did not
c possess any· recognised medical qualification as defined in clause (h) of
Section 2 of the Indian Medical Council Act, 1956. His name has not been
entered in a State Medical Register; nor has he any experience or training
in gynaecology and obstetrics. (519-D-F]

D 2. It is not possible to believe the defence version that the victim just
died lying on the table in the clinic of 'S'. She was a normal girl. No
explanation is forthcoming either from 'S' or the appellant as to in what
circumstances the deceased died. It was something within their knowl-
edge. In the circumstances of the case, the defence set up either by 'S' or
the appellant could not be true and had to be rejected. [520-G; 522-C]
E
3.1. To apply Section 34 IPC apart from the fact that there should be
two or more accused, two factors must be established : (i) common inten-
tion and (ii) participation of the accused in the commission of the offence.
However, in every case, it is not possible to have direct evidence of a
common intention. It has to be inferred from the facts and circumstances
F
of each case. From the record it is apparent, and there is concurrent
finding, that 'S' and the appellant had intent to cause miscarriage of the
victim who was pregnant, and death was caused by 'S' while conducting
abortfon. [522-H; 523-A-C]

G Ramaswami Ayhangar & Ors. v. State qf Tamil Nadu, [1976) 3 SCC 779
and Rajesh Govind Jagesha v. State qf Maharashtra, [1999] 8 SCC 428,
relied on.

3.2. After coming into force of the Medical Termination of Preg-
nancy Act, 1971, provisions of IPC relating to miscarriage became subser-
H vient to that Act because of non-obstante clause in Section 3. In the present
S. CHAUHAN v. STATE [D.P. WADHWA, J.J 517
case 'S' was certainly not competent to terminate the pregnancy of t~e/ A
deceased nor his clinic had the approval of the Government. Even basic
facilities for abortion were not available in his clinic. The appellant took
the deceased to the clinic of 'S' with intent to cause her miscarriage and
then her death was caused by 'S' while causing abortion, which act was
done by 'S' in furtherance of the common intention of both 'S' and the
B
appellant. The appellant was, therefore, rightly convicted under Section
314/34 IPC. [523-C-D; 525-C-D]

4. This Court does not, when hearing appeals under Article 136 of the
Constitution, sit as a court of further appeals on facts and does not interfere
with findings given on a consideration of evidence, unless they are perverse C
or based on no evidence. [520-.C-D]

Dinabandhu Sahu v. Jadunwni Mangaraj and Others, [1955] 1 SCR
140, reiterated.

5. The sentence awarded is rather on the higher side. The sentence of D
imprisonment is reduced to one and half years (18 months) rigorous
imprisonment, but the fine is enhanced to Rs. 25,000, which if realised
should be paid to the mother of the deceased. [525-D-E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 342
of 1998. E

From the Judgment and Order dated 7.1.98 of the Madhya Pradesh
High Court in Crl.A. No. 1656 of 1997.

Ranjit Kumar and Ms. Anu Mohla, for the Appellant.
F
Ms. Kamakshi S. Mehlwal, Ms. V. Dias and Uma Nath Singh for the
Respondent.

The Judgment of the Court was delivered by

D.P. WADHWA, J. Appellant Surendra Chauhan (Chauhan) has G
been convicted for an offence under Section 314/34 Indian Penal Code
(IPC) and sentenced to undergo rigorous imprisonment for seven years and
a fine of Rs.10,000 and in default of payment of fine to undergo further
rigorous imprisonment for a period of two years. Chauhan and Dr. Ravindra
Kumar Sharma (Sharma) were tried together. While Sharma was tried under H
518 SUPREME COURT REPORTS (2000] 2 S.C.R.
A Section 314 IPC Chauhan was tried under Section 314/34 IPC. Sharma had
also been convicted under Section 314 IPC and similarly sentenced as
Chauhan by the trial court. Both filed appeal in the Madhya Pradesh High
Court. Their conviction and sentence were upheld and their appeal dis-
missed by judgment dated January 7, 1998. Both sought leave to appeal
B from this Court under Article 136 of the Constitution against the judgment
of the High Court. Sharma 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
c was not married. On March 23, 1993 Alpana told her mother that she was
feeling unwell and would herself go te> 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,
D 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
E 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 with them. In the hospital of Sharma she saw her daughter •
'\
Alpana lying on the table inside the clinic. Lalita found that her daughter
was dead. She asked what was the reason of the treatment and death of
F
her daughter. On that Chauhan told her that he was having illicit relations
with Alpana as a result of which she was carrying pregnancy of two to three
months. He also told Lalita that he got Alpana admitted in the hospital for
he~ abortion and during the treatment the condition of Alpana became

serious causing her death. Lalita then went to inform her husband Mohan
G Lal and again went to the hospital of Sharma by which time police had
also arrived and there was crowd standing outside the hospital.

Dr. D.C. Jain is the professor of Forensic Medicines in Medical
College, Raipur. In his deposition he said that in his opinion Alpana was
H carrying the pregnancy of three months. He did not find any injury in uterus
S. CHAUHAN v. STATE [D.P. WADHWA, J.] 519
or vagina. He said it was possible that the abortion was caused without A
applying the anaesthesia to the deceased causing her death or her death
could be due to fear. He found that the uterus was enlarged containing
blood clots. He gave his opinion as under: -

"Deceased was pregnant foetus should be in uterus. Foetus age is 3
months. No injury to uterus or vagina detected, it is possible that the
B
deceased died of vagal inhibition due to the effect of abortion without
anaesthesia or due to fear."

In his cross-examination he said that shock also takes place during the fear.
Dr. H.K. Josh performed post mortem on the dead body of Alpana. According C
to him cause of death was shock.

There have been concurrent findings that Chauhan was having illicit...
relations with Alpana with the result that she became pregnant. He
accompanied her to the clinic of Sharma for her abortion. It has also come
on record that Sharma was having degree of Bachelor of Medicines in D
Electro Homoeopathy from the Board of Electro Homoeopathic Systems of
Medicines, Jabalpur (M.P.). This entitled him to practice in Electro
Homoeopathic systems of medicines. He also possessed a Diploma of
Bachelor of Medicines and Surgery in Ayurved. Alpana met her death in
the clinic of Sharma either due to shock or without applying anaesthesia E
while she was being aborted. Sharma is not a medical practitioner, who
possesses any recognised medical qualification as defined 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
m gynaecology and obstetrics. p

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 G
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. H
520 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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
B for our consideration: ( 1) It was the extra judicial confession of Chauhan made
to Lalita that he was having illicit relations with Alpana due to which she got
pregnant and both he and Alpana wanted to have the abortion and for that
purpose Chauhan had got her admitted to the clinic of Sharma. Confession
could not be solely made basis for conviction, and (2) Chauhan did not share
c any common intention with. Sharma to ca,use the death of Alpana.

As far back in 1954 this Court in Dinabandhu Sahu v. Jadumoni
Mangaraj and Others, [1955] 1 SCR 140 said that Supreme Court does not,
when hearing appeals under Article 136 of the Constitution, sit as a court of
further appeals on facts, and does not interfere with findings given on .a
D consideration of evidence, unless they are perverse or based on no evidence.

During the course of investigation police also recovered some instru-
ments from the dicky of the scooter of Sharma allegedly used for causing
abortion. One Hindi book containing the literature on abortion, contraceptives
and one Hindi book containing an illustrative abortion guide were seized from
E the clinic of Sharma. When the Investigating Officer Y.K. Shukla (PW-9)
stated that he recovered the instruments from the dicky of the scooter of
Sharma on his disclosure statement, he had not been cross-examined. There
is no reason for us not to take into consideration the extra judicial ~_?nfession
of Chauhan made to Lalita, mother of Alpana to base his conviction. It was
F quite natural in the circumstances. It was Chauhan who took Alpana to the
clinic of Sharma, who was not a qualified doctor to cause abortion. Chauhan
was known to Alpana and had illicit relations with her. It is not possible to
believe the defence version that Alpana just died lying on the table in the clinic
of Sharma. She was a normal girl. No explanation is forthcoming either from
Sharma or Chauhan as to in what circumstances Alpana died. It was something
G
within their knowledge. Court in normal circumstance does accept the expla-
nation of the.accused consistent with his innocence even though he has not
been able to prove his defence by positive evidence. But when the explanation
offered by the accused or the defence set up by him which is not only
inconsistent with his conduct but is palpably false, it cannot be worth
H consideration. When examined under Section 313 of the Code of Criminal
S. CHAUHAN v. STATE [D.P. WADHWA, J.] 521
Procedure Chauhan was asked if he wanted to say anything in his defence. A
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 B
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 bro~ght 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 c
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 D
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 said: - E

"After opening my hospital I was examining the patients and
prescribing them medicines. After some time deceased came there
and sat with the patients. When I was examining the patients the
deceased said that she was not feeling well. I told her that she could
F
lay down on the dressing table and after examining the patients on
her tum I went to her and asked about the problem she had. She did
not reply and after examining I found that she was dead. Then I
came out of my hospital. Incidentally, Surender @ Bunty met me
there. I took him to that girl and asked whether he knew the
deceased. He said that he knew the deceased. Then I asked Surender G
@ Bunty to inform the parents of the deceased about the incident.
Then I asked somebody to go to police station and lodge the report
and I along with Surender @ Bunty went to inform the parents of
the deceased. We asked her mother that the deceased was serious
and brought her to the hospital where police was already present and H
-
522 SUPREME COURT REPORTS [2000] 2 S:.C.R.
A lot of persons gathered. Mother of deceased found that her daL;ghter
was dead. Thereafter she along with police personnel went to the -
police station.

I had not given any treatment to the deceased and I did not know
why she had come to the hospital.
B _,.
Prosecution version that' I was trying to do the abortion of the
deceased due to which she died is false. I am innocent and I have
been wrongly involved. "

c In the circumstances of the case the defence set up either by Sharma.
or Chauhan could not be true and had to be rejected .
•
It is contended that Chauhan could not be convicted with the aid of
Section 34 IPC. Section 34 IPC is as under:-

D "34. Acts done by several persons in furtherance of common
intention. - When a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it were done by him
alone."

E Under Section 34 a person must be physically present at the actual
corrimission of the crime for the purpose of facilitating or promoting the
offence, the commission of which is the aim of the joint criminal venture.
Such presence of those who in one way or the other facilitate the execution
of the common design is itself tantamount to actual participation in the '
.
F criminal act. The essence of Section 34 is simultanequs consensus of the ._
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 Aylzangar & Ors. v. 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.
G 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 v. State of
.
Maharashtra, [1999] 8 SCC 428. To apply Section 34 IPC apart from the fact
H that there should be two or more accused, two factors must be established: (i)
S. CHAUHAN v. STATE [D.P. WADHWA, J.] 523
common intention and (ii) participation of the accused in the commission of A
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 every case,
it is not possible to have direct evidence of a common intention. It has to be
B
inferred from the facts and circumstances of each case.

There is concurrent finding that Sharma with intent to cause the
miscarriage of Alpana with child by his act caused her death and the act was
done in furtherance of the common intention of Chauhan. He has thus been
rightly convicted under Section 314/34 IPC. C
There is another aspect of the matter. After coming into force of the
Medical Termination of Pregnancy Act, 1971 provisions of IPC relating to
miscarriage became subservient to that Act because of non obstante clause
in Section 3 which Section is as under: -
D
"3. (1) Notwithstanding anything contained in the Indian Penal
Code, a registered medical practitioner shall not be guilty of any
offence under that Code or under any other law for the time being
in force, if any pregnancy is terminated by him in accordance with
the provisions of this Act.
E
· (2) Subject to the provisions of sub-section (4), a pregnancy may be
terminated by a registered medical practitioner, -

(a) where the length of the pregnancy does not exceed twelve
weeks, if such medical practitioner is, or
F
(b) where the length of the pregnancy exceeds twelve weeks but
does not exceed twenty weeks, if not less than two registered
medical practitioners are,

of opinion, formed in good faith, that -
G
(i) the continuance of the pregnancy would involve a risk to the
life of the pregnant woman or of grave injury to her physical
or mental health; or

(ii) there is a substantial risk that if the child were born, it would
suffer from such physical or mental abnormalities as to be H
524 SUPREME COURT REPORTS [2000] 2 S.C.R.
A seriously handicapped.

Explanation I. - Where any pregnancy is alleged by the pregnant
woman to have been caused by raP.e, the anguish caused by such
pregnancy shall be presumed to constitute a grave injury to the mental
health of the pregnant woman.
B
Explanation 2. - Where any pregnancy occurs as a result of
failure of any device or method used by any married woman or her
husband for the purpose of limiting the number of children, the
anguish caused by such unwanted pregnancy may be presumed to
c constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would
· involve such risk of injury to the health as is mentioned in sub-
section (2), account may be taken of the pregnant women's actual
D 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.
E
(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
_F 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:
G
"(i) unless the Government is satisfied that termination of preg-
nancies may be done therein under safe and hygienic condi-
tions; and

H (ii) unless the following facilities are provided therein, namely:-
S. CHAUHAN v. STATE [D.P. WADHWA, J.] 525
(a) An operation table and instruments for performing abdominal A
or gynaecological surgery;

(b) anaesthetic equipment resuscitation equipment and sterlisation
equipment;

(c) drugs and parenteral fluids for emergency use." B
In the present case Sharma was certainly not competent to terminate the
pregnancy of Alpana nor his clinic had the approval of the Government. Even
basic facilities for abortion were not available in his clinic. Chauhan took
Alpana to the clinic of Sharma with intent to cause her miscarriage and then
her death was caused by Sharma while causing abortfon, which act was done c
by Sharma in furtherance of the common intention of both Sharma and
Chauhan. There is no escape from the conclusion that Chauhan had been
rightly convicted under Section 314/34 IPC.

The question then arises of the sentence awarded to Chauhan. We are
of the opinion that the sentence awarded is rather on the higher side. We
D
would, therefore, reduce the sentence of imprisonment to one and half years
(18 months) rigorous imprisonment but would enhance the fine to Rs.25,000
and in default of payment of fine Chauhan to undergo further rigorous
imprisonment for a period of one year. In case fine is realised the same shall
be payable to Lalita Soni, mother of Alpana. E
The appeal is thus partly allowed.

R.P. Appeal partly allowed.