Bombay High Court

Bombay High Court: While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

An order of the Special Court (POCSO) had been challenged whereby the application for discharge came to be rejected by the Special Court.

Factual Matrix

Informant aged 17 years got acquainted with accused who was residing in the area of Christ Church and friendship blossomed into love. The accused promised to marry her and later called her to his house and demanded sexual favour from her.

In view of the promise of marriage, the informant consented to sexual intercourse and the said act was repeated multiple times. In fact, every time she consented to sexual intercourse only for the reason that the accused had promised to marry her. Later, she realized that she was pregnant.

When the mother of the informant realized that the applicant was pregnant, she aborted her foetus and on the said allegations, an FIR against the applicant and accused was filed.

Analysis and Decision

High Court noted that under Section 227 of the Code of Criminal procedure a duty is cast on the Judge to apply his mind to the material on record and if on examination of the record, he does not find sufficient ground for proceedings against the accused he must discharge the accused.

“For framing charge mere suspicion is not enough.”

The applicant is accused of committing offence under Sections 315 and 316 of the Penal Code, 1860.

Ingredients of Section 315 of the IPC are as under:

(i) Woman must be pregnant.

(ii) Before the birth of any child the accused does any act

with the intention of preventing that child from being born alive or causing it to die after its birth.

(iii) Such act must not be done in good faith for the purpose of saving the life of the mother.

In terms of Section 316 IPC such an act is treated as amounting to culpable homicide.

The applicant was Doctor by profession and according to him he was a Child Specialist and possessed the certificate under the Bombay Nursing Home Registration Act, 1949 authorizing him to run a nursing and maternity home.

Therefore, trial court was justified in holding that the applicant was authorized to run a nursing home and maternity home.

As per the record of medical examination, the hymen of the victim was ruptured.

The Bench also noted that the past pregnancy can be determined on account of permanent changes in the body of a woman, in fact the mother of the victim stated that she was pregnant of six months.

The Court stated that, there was a delay of more than 1 year in lodging the FIR. However, the aspect of delay could be considered during trial. In such cases, women generally do not come forward to lodge a report soon after the incident.

“…victim was less than 17 years when the intercourse happened. After her alleged termination of pregnancy, she attained majority.”

Hence, even at the prima facie stage it could be said that delay was properly explained, and Trial Court did not commit any error in dismissing the application for discharge of the applicant. [Balwantrao Haridasrao Bhise v. State of Maharashtra, 2022 SCC OnLine Bom 828, decided on 7-4-2022]

Advocates before the Court:

Shri. Sudarshan J. Salunke, Advocate for the applicant Shri. S. D. Ghayal, APP for the respondent/State

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