dismissed and all the accused acquitted of the charges framed against them more so when the accused are facing trial for the last ten years.
Keeping in mind the facts of the case and summing up the arguments of the rival parties, the material available on record, collected by the investigating agencies during investigation and the circumstances brought on record during the course of trial right from the date of framing of charge against the accused what emerges is as under:
a) that the deceased, Mst. Rafiqa and accused No.1 Altaf Ahmad Hajam were working in police department, had developed illicit relations with each other as a result of which the deceased conceived and was in her advanced stage of pregnancy on the day of occurrence;
b) that accused No.1 and the deceased decided to abort the child to conceal/hide their illicit relations and in this regard consulted accused No.3, Dr. Ghulam Nabi Bhat, at his clinic Jehlum Diagnostic center to terminate the child through illegal abortion;
c) that the doctor accused No.3 agreed to abort the child of the deceased at the advanced stage of pregnancy at his clinic at HSHS with the aid and assistance of accused No.6 and 7 working with him at his clinic;
d) that during the course of inducing the illegal abortion at an advanced stage the deceased died due to shock and hemorrhage in the clinic of accused No.3 and
e) that under a well knit conspiracy the accused shifted the dead body of the deceased to SMHS Hospital Srinagar in a Maruti car driven by accused No.5 Reyaz Ahmad Dar and left it there in the Hospital corridor where from it was subsequently recovered by the local police as an unclaimed/unidentified dead body.
Now coming to the question of illegal/illicit relations between the accused Altaf and deceased Rafiqa it is manifestly clear and proved by the prosecution that the two were working in police together and at one point of time Altaf has asked for the hand of the deceased Rafiqa and had gone to their house as well and the home people of Rafiqa had agreed to the proposal with a condition that the parents of Altaf must also consent to the relation. Though the learned counsel for the accused has denied about any relations of accused No.1 with deceased Mst. Rafiqa but record reveals that accused Altaf has himself while replying the charges framed against him stated that “Mst. Rafiqa was known to him. She met him in Lal chowk and he took her to the other accused and after she was examined by Dr. Gh. Nabi accused, it surfaced that she was pregnant. Therefore, this circumstance is proved that the accused No.1 and deceased were known to each other and had consulted accused No.3 for termination of the fetus at his clinic. Under these circumstances the argument of the learned counsel for the accused disputing the recovery of chit, EXPW 7/2, from the possession of deceased does not hold good and it cannot believed that the said chit was planted by the prosecution to trap the accused in a frivolous case.
This followed in hatching of a criminal conspiracy between the accused Altaf, Dr. Gh. Nab i and of course the deceased Mst. Rafiqa who decided to terminate the fetus through illegal means to save accused No.1 and deceased from getting defamed in the society for their illicit relations.
As a consequence of the criminal conspiracy accused No.3 agreed to the illegal termination of the fetus at his clinic Jehlum Diagnostic centre Hari Singh High Street on the scheduled date after obtaining a consent from Altaf accused No.1 and Mst. Rafiqa the deceased photocopy of the consent form has been placed on record and as per prosecution story the accused No.3 had caused to disappear the original consent form duly signed by the deceased Mst. Rafiqa and accused Altaf on 19-02-2002. The consent reads as under:
“We are willing for any operation/injection/IVP procedure/Anesthesia or any other procedure to be carried out on our patient on our own risk and responsibility and will not claim for any compensation, police or judicial or any consumer protection procedure” Sd/ M. Altaf Hajam and Rafiqa Banoo.
Circumstances for sure lead us to arrive at a conclusion that the deceased lady who was subjected to induced incomplete abortion died during the course of the illegal abortion in the Diagnostic centre of accused No.3 at Hari singh High Street, Srinagar, however, a question arises that how old was the fetus of the deceased and whether it could be terminated under law. In this regard statement of Pw Dr Mohd Maqbool is of utmost importance. The said witness has testified that,” there was vomits in the mouth of the dead body. there were signs of bleeding from the private parts and blood on the underwear/leggings of the deceased. the leggings were soaked with blood. the uterus was of normal colour but the size was enlarged and uterus was full of contents and pieces of skull bones of the fetus came out while seperating uterus from cervix. the observatifons led to the conclusion that the lady had been subjected to indeuced abortion”.
The doctor has further testified that “the cause of death as per examination was shock and hemorrhage. the lady obviously was pregnant and some one had induced abortion though incomplete.”
The doctor has, however, not stated any thing about the age of the fetus. He has deposed that “I did not measure the size or weight of the uterus though it was bulky. the skul bones of fetus were thick. I am not sure about the exact age of the fetus. I did not sent the skull bones of fetus to Serological culture. I did not find any signs of disease or female problem as the lady was stout, healthy and young.”
The said witness has in his cross examination further stated that ” when I say that the death has been caused due to shock and hemorrhage I mean that there was huge blood loss while inducing abortion or performing surgery and due to this blood loss coupled with shock and negligence the death occurred.”
Section 3 of J&K Medical Termination of Pregnancy Act which is reproduced here under provides as to when pregnancies may be terminated by registered Medical Practitioners.
• Notwithstanding any thing contained in the State Ranbir Penal Code, Samvat 1989, 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.
• 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
(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-
• the continuance of the pregnancy could involve a risk to the life of pregnant woman or of grave injury to her physical or mental health; or
• there is a sustainable risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation I. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation II. 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 un-wanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
• 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 woman’s actual or reasonably foreseeable 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 b 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.
Section 4 of the Act gives the description of places where pregnancy may be terminated. Section 4 reads as under:
“4. Place where pregnancy may be terminated.
No termination of pregnancy shall be made in accordance with this Act at any place other than–
(a) a hospital established or maintained by the Government, or
(b) a place for the time being approved for the purpose of this Act, by the Government.
Sub clause 2 of Section 3 of the Act permits termination of pregnancy by a registered Medical Practitioner where the length of pregnancy does not exceed twelve weeks and the same is subject to the provisions of section 4 of the Act. Besides that there are given certain other circumstances provided in section 3 when the fetus can be removed which is not disputed.
Rule 8 of Medical Termination of Pregnancy Rules, 1978, also prohibits the termination of pregnancy beyond the period of twelve weeks at any un-notified place or institution. Rule 8 reads as under:
Duration of Pregnancy: Where the length of pregnancy exceeds twelve weeks it shall not be terminated at any place other than in the obstetrics any gynecology department of the Medical colleges, and other institution notified by the Government.
To arrive at a just conclusion with regard to exact age of the fetus and stage of pregnancy Dr. J. C. Willke in his book ABORTION: Questions and Answers say that there are many methods of abortions and the procedure used depends largely upon the stage of pregnancy and the size of the unborn child. He has divided the methods of abortion into three main categories.
1) Those that invade the uterus through cervix;
2) those that kill the preborn child by administration of drugs and then induce labour and the delivery of a dead baby; and
3) those that invade the uterus by abdominal surgery.
He has further said in his book that dilation of the uterus is required in cervical methods of abortion. the usual method of dilation is to insert a series of instruments of increasing size into the cervix. A set of dialators, metalic curved instruments are used to open the cervix sufficiently to accommodate the instrument of abortion. In contract with a normal birth, where the dilation occurs slowly over a period of many hours. the forceful stretching by the abortionist to open the cervix takes a matter of seconds. this premature and un-natural stretching of the cervix can result in permanent physical injury to the mother.
Since the doctor who has conducted the autopsy of the deceased lady has not been able to give the exact age of the fetus at the relevant time but has of course testified that the uterus of the dead body was full of contents and pieces of skull bones of the fetus came out while separating uterus from cervix. therefore, Dr. J. C. Willke’s book needs to be referred again who has given the full formation of fetus/child at different stages of pregnancy.
At Eight weeks: At eight to nine weeks the eyelids have begun forming and hair appears. by the ninth and tenth weeks the preborn child sucks her thumb, turns somersaults, jumps, can squint to close out light, frown, swallow, and move her tongue.
At this early stage of development, suction abortions are performed using a smaller tube, requiring little dilation of the cervix. this is called ” menstrual extraction.” However, if all the fetal remains are not removed, infection results, requiring full dilation of the cervix and a scraping out of the womb.
Suction Aspiration: This is the most common method of abortion during the first 12 weeks of pregnancy. General or local anesthesia is given to the mother and her cervix is quickly dilated. A suction curette (hollow tube with a knife-edged tip) is inserted into the womb. This instrument is then connected to a vacuum machine by a transparent tube. the vacuum suction, 29 times more powerful than a household vacuum cleaner, tears the fetus and placenta into small pieces which are sucked through the tube into a bottle and discarded.
Dilation and curettage ( D&C): This method is similar to the suction method with the added insertion of a hook shaped knife (curette) which cuts the baby into pieces. the pieces are scraped out through the cervix and discarded ( Note. this abortion method should not be confused with a the reapeutic D&C done for reasons other than pregnancy.)
At Twelve weeks: By the end of the third month all arteries are present, including the coronary vessels of the heart. blood is circulating through these vessels to all body part.
The heart beat ranges during this fetal period from f110 to 160 beats per minute. All blood cells are produced byd the liver and spleen, a job soon taken over by the bone marrow. while blood cells, important for immunity, are formed in the lymps nodes and thymus.
Vocal chords are complete, and the child can and does sometimes cry (silently). The brain is fully formed, and the child can feel pain. the fetus may even suck his thumb. the eyelids now cover the eyes, and will remain shut until the seventh month to protect the delicate optical nerve fibers.
14 weeks : Muscles lengthen and become organized. The mother will soon start feeling the first flutter5s of the baby kicking and moving inside.
15 weeks: the fetus has an adult’s taste buds and may be able to savor the mother’s meals.
16 weeks: Five and a half inches tall and only six ounces in weight, eyebrows, eyelashes and fine hair appear. the child can grasp with his hands, kick, or even somersault.
At Eighteen Weeks: The fetus is now about 5 inches long. the child blinks, grasps and moves her mouth. Hair grows on the head and body.
20 weeks: The child can hear and recognize mother’s voice. Though still small and fragile, the baby is growing rapidly and could possibly survive if born at this stage. fingernails and fingerprints appear. Sex
Hell with them. Jahanam yeyen zinaiyen